Woodworth v. Brenner , 69 Mich. App. 277 ( 1976 )

69 Mich. App. 277 (1976) 244 N.W.2d 446

WOODWORTH
v.
BRENNER

Docket No. 24214.

Michigan Court of Appeals.

Decided May 28, 1976.

Shanahan & Schied, for plaintiff.

Garan, Lucow, Miller, Lehman, Seward & Cooper, P.C., for defendants Brenner.

Des Jardins & Des Jardins, for defendant City of Owosso.

Before: T.M. BURNS, P.J., and V.J. BRENNAN and D.E. HOLBROOK, JR., JJ.

T.M. BURNS, P.J.

Plaintiff slipped and fell on the sidewalk abutting the property of defendants Brenner. Plaintiff alleged in his complaint that the Brenners were negligent in failing to maintain the sidewalk in a safe condition contrary to city ordinance, failing to keep the sidewalk free of ice contrary to city ordinance, and failing to prevent snow melting from their property to run off and accumulate on the adjacent sidewalk. Plaintiff alleged that the city was negligent in failing to keep the sidewalk free of ice and in failing to determine the unsafe condition of the sidewalk surface and require its repair. The complaint further alleged that both defendants were negligent in failing to warn plaintiff of the hazardous condition of the sidewalk.

The Brenners admitted that they had removed snow from the sidewalk and piled it at the sides such that it was above the level of the sidewalk. It was plaintiff's theory that the snow melted, flowed back upon the sidewalk and later froze, causing an icy condition.

All defendants moved for summary judgment for failure to state a claim upon which relief could be granted. Summary judgment was entered in favor of the defendants. Plaintiff appeals as of right.

For the purposes of our review, the allegations in the complaint are taken as true and our function is to determine whether plaintiff's claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover. Borman's, Inc v Lake State Development Co, 60 Mich. App. 175; 230 NW2d 363 (1975), Kozyra v Jackman, 60 Mich. App. 7; 230 NW2d 284 (1975).

Whether a passerby walking on a public sidewalk may recover from the city and/or abutting landowner for injuries caused by a fall on an icy sidewalk where the icy condition is caused by the refreezing of previously shoveled snow which melted and accumulated on the sidewalk.

We first consider the potential liability of defendant landowners.

An abutting property owner may not be held liable to pedestrians for injuries sustained by falling on sidewalks made hazardous by natural accumulations of ice and snow, and statutes and ordinances^[1] which impose a duty upon landowners to clean sidewalks create no private liability. Gillen v Martini, 31 Mich. App. 685, 687; 188 NW2d 43 (1971). It is only where the snow or ice accumulates because of a negligent affirmative act of the landowner, or where the landowner's act increases the danger from a natural accumulation that the property owner may be held liable for an invitee's slip and fall. Creech v Consumers Power Co, 59 Mich. App. 167, 171; 229 NW2d 358 (1975).

The increased hazard theory relied upon by plaintiff was discussed in Weider v Goldsmith, 353 Mich. 339; 91 NW2d 283 (1958), in which opinion the Supreme Court quoted approvingly from a case factually on point with the instant case:

"[I]n Taggart v Bouldin, 111 NJL 464, 468 (168 A 570) [1933], the snow which had been banked on either side of the sidewalk by defendant's shoveling, later melted and froze on the walk. In upholding the lower court's nonsuit of plaintiff the court said:

"``The action of the defendant, in having the sidewalk shoveled off, introduced no new element of danger; rather the opposite resulted and the danger was lessened. * * * Since this be so, to hold a property owner answerable in damages, for injuries received because an effort is made to keep the sidewalk clear and to reduce the danger to pedestrians, would result in a hardship and an injustice.'" Weider, supra, at 341.^[2]

As plaintiff points out, there is a split of authority in other jurisdictions concerning the liability of an abutting landowner to pedestrians injured after the landowner removed snow from the sidewalk. See Annot, 71 ALR2d 793 (1960). We believe the better view to be that expressed by the New Jersey Court in Taggart, supra, and endorsed by our Supreme Court in Weider, supra. We find that the trial court correctly ruled in favor of the defendants Brenner.

We note that neither the instant appeal nor the above cited Michigan authority is effected by the recently decided case of Quinlivan v The Great Atlantic & Pacific Tea Co, Inc, 395 Mich. 244; 235 NW2d 732 (1975).^[3]

As for the liability of the city, the only defect in the sidewalk alleged by plaintiff was the presence of ice. The mere presence of ice and snow will not support an action against the city. Plaintiff must allege some defect in the sidewalk itself. See Pappas v Bay City, 17 Mich. App. 745; 170 NW2d 306 (1969), Johnson v Pontiac, 276 Mich. 103; 267 N.W. 795 (1936).

The grant of summary judgment in favor of the defendant city was proper.

Affirmed.

D.E. HOLBROOK, JR., J., concurs in the result only.

NOTES

[1] As for the effect of the ordinance in the instant case, see Levendoski v Geisenhaver, 375 Mich. 225; 134 NW2d 228 (1965).

[2] Cf. New Highland Recreation, Inc v Fries, 246 Md 597; 229 A2d 89 (1967).

[3] As stated by the Court in Quinlivan at 256-257:

"On this appeal we do not determine the duty owed the user of public streets and sidewalks. Under present Michigan law, liability for failure to keep public highways (including sidewalks) ``in condition reasonably safe and fit for travel' falls principally upon the involved governmental unit and is statutorily defined. MCLA 691.1401, et seq.; MSA 3.996(101), et seq., and Levendoski v Geisenhaver, 375 Mich. 225; 134 NW2d 228 (1965). Decision of the case at hand does not require us to address the scope of the statutory duty owed the user of public streets and sidewalks respecting natural accumulations of ice and snow. We need not, therefore, pass upon the merits of the holdings in cases (e.g., Weider, [353 Mich. 339; 91 NW2d 283 (1958)], and Betts [239 Mich. 260; 214 N.W. 96 (1927)], which deal with injury from accumulations of ice and snow occuring on public streets and sidewalks."

Pre-existing case law was overruled by Quinlivan only as it applied the natural accumulation rule to cases involving the liability of a business invitor. Quinlivan, supra, at 260.