Berman v. LaRose ( 1969 )

16 Mich. App. 55 (1969) 167 N.W.2d 471

BERMAN
v.
LaROSE

Docket No. 5,191.

Michigan Court of Appeals.

Decided February 24, 1969. Leave to appeal granted August 5, 1969.

Bellinson & Doctoroff (Frederick B. Benjamin, of counsel), for plaintiffs.

Eggenberger & Eggenberger (John P. McKinney, of counsel), for defendant.

BEFORE: McGREGOR, P.J., and FITZGERALD and CYNAR,^[*] JJ.

Leave to appeal granted August 5, 1969. See 382 Mich 772.

McGREGOR, P.J.

The present dispute presents the question of whether a commercial landowner owes a duty to business invitees to keep abutting state-owned property, used for public parking, in a reasonably safe condition. The particular fact situation involved, that of a publicly-owned parking area abutting defendant's premises, to our knowledge has not been presented to the American judiciary. The merits of the question will be weighed as presented by the following fact situation:

Defendant owns a retail grocery store and his customers often park their cars on a strip of state-owned land between the road and sidewalk in front of the store. The accident engendering this controversy occurred when plaintiff fell in a hole after parking her car on the land strip, intending to purchase groceries in defendant's store. Thereafter, her husband joined her in an action against defendant for damages allegedly caused by the fall, which included medical bills, pain and suffering, and loss of consortium. The circuit court entered a judgment for defendant, reasoning as follows:

"An adjoining property owner owes no duty to one injured on public property wherein he has not created the nuisance nor allowed an innocent creation to become a nuisance or an unreasonable risk, nor in an endeavor to correct a defect either creates a new hazard or enhances an old hazard."

Although plaintiff clearly has suffered misfortune, we have found no basis for her recovery, either from the State or the defendant, as an owner of the abutting premises. State immunity from liability in the exercise of a governmental function applies in the instant matter, especially since the injury occurred off a road surface. PA 1964, No 170, § 1 et seq. (MCLA § 691.1401 et seq.; Stat Ann 1968 Cum Supp § 3.996[101] et seq.).

Michigan decisions acknowledge the general rule that defendant owes a duty to business invitees to maintain his premises in a reasonable, safe condition. However, there is no duty, absent a statute, of an abutting owner as to the condition of the sidewalk or public way, unless the landowner has physically intruded upon the area in some manner or has done some act which either increased the existent hazard or created a new hazard. Levendoski v. Geisenhaver (1965), 375 Mich 225; Kinsey v. Lake Odessa Machine Products (1962), 368 Mich 666; Weider v. Goldsmith (1958), 353 Mich 339; Betts v. Carpenter (1927), 239 Mich 260; City of Detroit v. Chaffee (1888), 70 Mich 80. Defendant's premises did not physically intrude on the parking area in question and plaintiff did not establish that defendant did any act which increased the existing hazards or created a new one. Therefore, an analogy of the public parking area to a public way or sidewalk does not support plaintiff's position, according to Michigan law.

Advisory decisions of other jurisdictions are also factually distinguishable from this case. Abeles v. The Great Atlantic & Pacific Tea Company (1964), 244 SC 508 (137 SE2d 604), involved an injury occasioned in the same type of area as involved in the present matter. However, the tenor of the opinion implies the land was privately owned by the defendant and, consequently, part of the supermarket premises. Thus, the case is distinct from the instant situation involving an injury on publicly-owned land. The case of Robertson v. Liggett Drug Company, Inc. (1950), 81 Ga App 850 (60 SE2d 268) involved an intrusion in a sidewalk by a raised iron grate, placed for the sole benefit of the abutting premises. The court quoted from 25 Am Jur, Highways, § 365, for the principle that "an owner or occupant of abutting premises who has a servitude in the sidewalk or other portion of a public way, for his private benefit" must exercise due care to maintain the portion affected by the servitude in a safe condition. Defendant did not have a servitude in the public parking area for his private benefit, since anyone could park in the area whether or not he intended to patronize defendant's grocery store. Therefore, the Robertson Case is also distinguishable and presents no relevant guidelines. Other authorities surveyed did not enlarge or extend the theories discussed.

In order to establish the liability of defendant for plaintiff's injuries, incurred on the abutting publicly owned land, we find that it was necessary for plaintiff, by drawing an analogy to a public way or sidewalk, to prove at a minimum that in some manner defendant (1) increased the hazards in the parking area which existed at the time of the injury, or (2) created new hazards on the land strip, or (3) had a servitude for his private benefit in the parking area, by a physical intrusion of his premises or otherwise, the enjoyment of which affected the area's safety and thus imposed a duty on defendant to maintain the area in a reasonably safe condition. Since plaintiff failed to submit sufficient proof of any of the three conditions offered as an individual basis for arguable liability, we find that defendant had no duty to alter a hazardous condition in the publicly owned parking area.

The judgment of the circuit court is affirmed. Costs to defendant.

All concurred.

NOTES

[*] Circuit Judge, sitting on the Court of Appeals by assignment.