Hampton v. Waste Management of Michigan, Inc , 236 Mich. App. 598 ( 1999 )

601 N.W.2d 172 (1999) 236 Mich. App. 598

Larry Lee HAMPTON, Plaintiff-Appellant,
v.
WASTE MANAGEMENT OF MICHIGAN, INC., and Northwest Market, Inc., Defendants-Appellees.

Docket No. 206240.

Court of Appeals of Michigan.

Submitted March 10, 1999, at Detroit. Decided July 23, 1999, at 9:05 a.m. Released for Publication October 22, 1999.

Bernstein & Bernstein, P.C. (by Michael J. Butler), Southfield, for the plaintiff.

Plunkett & Cooney, P.C. (by Jeffrey C. Gerish), Detroit, for the defendants.

Before: DOCTOROFF, P.J., and SMOLENSKI and WHITBECK, JJ.

PER CURIAM.

Plaintiff Larry Lee Hampton appeals as of right the trial court's order granting summary disposition in favor of defendants Waste Management of Michigan, Inc., and Northwest Market, Inc., pursuant to MCR 2.116(C)(10) in this premises liability case. We affirm.

I. Basic Facts and Procedural History

Hampton alleged in his complaint that, on October 6, 1995, at about 2:15 p.m., he was on Northwest Market's property to inspect a roof on a building adjacent to the property and that a rubbish bin (the dumpster) owned by Waste Management was located on the property. According to the complaint, as Hampton was descending a ladder, "the ladder slipped out from under him as a result of an oily substance leaking from Defendant's [sic— Waste Management's] rubbish bin, thereby causing [Hampton] to fall" and resulting in injury.

Hampton indicated in his deposition testimony that he fell from a ladder on Northwest Market's property and that he "had grease and oily stuff all over [his] hands and face where [he] had hit right there at the bottom of the ladder." Hampton believed that the substance on him leaked out of the dumpster because "there was nothing else in the parking lot [other] than that dumpster."

Another witness, Jerry Wood, testified during his deposition that the ladder "just took off like it was on butter" at the time of the fall. Matt Gunsell, similarly indicated during his deposition that a substance like cooking oil, grease, or Crisco oil got on his clothes when he assisted Hampton after Hampton fell. Wood also described a "greasy film" on Hampton's body or clothes after the fall. Wood testified as follows regarding the dumpster on Northwest Market's premises:

From the dumpster, from it sitting so long. And you could see where all the drainage of anything would come out of the dumpster, whatever it would be.

* * *

Well, when.... After we had called the paramedics and everything, to stand beside the dumpster [sic].... And I do recall this. It was like from one corner to the back of the dumpster to the other corner of the dumpster it looked like it had ... like it was ... just like it was weeping out of it down into ... like it was draining out.

And it looked like a little.... You know, it formed down to like a little river like thing. You know, after something has been sitting so long, you know. It just builds out, then down.

However, no deposition testimony or other documentary evidence presented to the trial court specifically indicated when a substance allegedly leaked from the dumpster or the identity of who may have placed the substance in the dumpster.^[1] The trial court stated during a motion hearing with regard to defendants' motion for summary disposition under MCR 2.116(C)(10) as part of its rationale for granting the motion that it thought "this whole case is so speculative that.... You know, you can talk about every case having some question of fact ... I usually do... but in this one, I just ... I just can't do it in good conscience because I really can't see where Northwest [Market] or Waste Management did anything inappropriate." Accordingly, the trial court entered an order granting summary disposition in favor of Waste Management and Northwest Market.

II. Standard of Review

This Court reviews decisions on motions for summary disposition de novo. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). A motion under MCR 2.116(C)(10) tests whether there is factual support for a claim and is reviewed to determine whether the affidavits, pleadings, depositions, or any other documentary evidence establish a genuine issue of material fact to warrant a trial. Spiek, supra. On appeal, as below, all reasonable inferences are resolved in the nonmoving party's favor. Bertrand v. Alan Ford, Inc., 449 Mich. 606, 615, 537 N.W.2d 185 (1995).

III. General Principles of Negligence Law

To establish a prima facie case of negligence, a plaintiff must prove four elements: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages. Schultz v. Consumers Power Co., 443 Mich. 445, 449, 506 N.W.2d 175 (1993); Swan v. Wedgwood Christian Youth & Family Services, Inc., 230 Mich.App. 190, 195, 583 N.W.2d 719 (1998). Duty can arise from a statute or a contract or by application of the basic rule of common law, which imposes an obligation to use due care or to act so as to not unreasonably endanger the person or property of others. Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 95, 485 N.W.2d 676 (1992). If factual questions exist regarding what characteristics giving rise to a duty are present, the issue must be submitted to the factfinder. Howe v. Detroit Free Press, Inc., 219 Mich.App. 150, 155, 555 N.W.2d 738 (1996).

IV. Defendant Waste Management's Lack of Duty Under Premises Liability Law

We may easily dispose of this appeal as regards Waste Management. Although Hampton argues that he was lawfully present on Northwest Market's premises, there is no evidence to suggest that Waste Management possessed or controlled the premises. A claim of premises liability is conditioned on the presence of both possession and control over the premises. Kubczak v. Chemical Bank & Trust Co., 456 Mich. 653, 660, 662, 575 N.W.2d 745 (1998). Therefore, we find, as a matter of law, Waste Management did not owe the requisite duty, Schultz, supra, to Hampton to support his claim against Waste Management. Accordingly, summary disposition of plaintiff's claim in regard to defendant Waste Management was proper.

V. Plaintiff's Claim Against Northwest Market

The duty that a possessor of land owes to another person who is on the land depends on the latter person's status. Stanley v. Town Square Cooperative, 203 Mich.App. 143, 146, 512 N.W.2d 51 (1993). The status of a person on land that the person does not possess will be one of the following: (1) a trespasser, (2) a licensee, or (3) an invitee. Id. at 147, 512 N.W.2d 51. The parties dispute the status held by Hampton when he was on Northwest Market's land at the time of his fall.

However, even if we assume without deciding that Hampton was an invitee entitled to the highest level of protection under premises liability law, Northwest Market would be "``"liable for injury resulting from an unsafe condition either causedby the active negligence of [itself] and [its] employees or, if otherwise caused, where known to the storekeeper or [the condition] is of such a character or has existed a sufficient length of time that [it] should have had knowledge of it."'" Berryman v. K Mart Corp., 193 Mich.App. 88, 92, 483 N.W.2d 642 (1992), quoting Serinto v. Borman Food Stores, 380 Mich. 637, 640-641, 158 N.W.2d 485 (1968), quoting syllabus No. 1 in Carpenter v. Herpolsheimer's Co., 278 Mich. 697, 271 N.W. 575 (1937) (emphasis supplied).

Hampton argues that notice need not be shown where a dangerous condition is caused by a premises possessor or its employees. However, in keeping with the basic tenets of negligence law that require a breach of duty as an essential element of a valid negligence claim, Schultz, supra; Swan, supra, and the above language from Berryman and Serinto, we conclude that this principle applies only where an employee of a premises possessor creates a dangerous condition through an unreasonable act or omission that breaches a duty owed to a visitor on the land. In other words, that a reasonable act or omission of a premises possessor or its employee plays a role in the creation of a dangerous condition does not make the premises possessor liable for any injury to an invitee that is causally connected to that reasonable act or omission. While this may be so basic as not to have been expressly addressed in prior Michigan case law, this concept is inherent in the well-established principle that a possessor of land "is not an insurer of the safety of an invitee." Stanley, supra at 150, 512 N.W.2d 51. For example, Northwest Market's reasonable act of simply having a parking lot and a building on the land were remote causal factors in this accident. Obviously, that does not serve to impose liability on Northwest Market for any injuries that Hampton suffered in his fall from the ladder because the maintenance of a parking lot and building for business purposes is a reasonable act and thus not a breach of duty toward an invitee.

Similarly, we conclude as a matter of law that there is no evidence to reasonably support a finding that Northwest Market or any of its employees breached any duty to its invitees (or by necessary implication to its licensees or trespassers on its land) by merely having possibly placed a substance in the dumpster that leaked out. Under the circumstances of this case, it may well be highly questionable whether there was sufficient evidence to reasonably support a factual determination that an oily substance leaked from the dumpster to the area where Hampton's ladder rested on the parking lot surface. See, e.g., Berryman, supra at 92, 483 N.W.2d 642 (a prima facie case of negligence may be established with the use of legitimate inferences, but requires more than conjecture).

Nevertheless, even if we presume that the substance did so leak from the dumpster, there is no indication that Northwest Market or any of its employees had any knowledge of material ever leaking from the dumpster in the past. Thus, there was no evidence presented to reasonably support a finding that either Northwest Market or any of its employees should have anticipated that any material placed in the dumpster would leak from it. Also, there was no evidence that Northwest Market or any of its employees knew or should have known, Berryman, supra at 92, 483 N.W.2d 642, of the alleged presence of the oily substance during the time that Hampton was working in and near its parking lot before or at the time of his fall. Thus, we conclude that the trial court properly granted summary disposition in favor of Northwest Market pursuant to MCR 2.116(C)(10) because there was no evidence of an unreasonable act or omission by Northwest Market or any its employees that was a proximate cause of Hampton's accident or that Northwest Market had actual or constructive notice of the alleged leak from the dumpster.

We note that the case at hand is distinguishable, both legally and factually, from Berryman, supra. In Berryman, supra at 89, 483 N.W.2d 642, the plaintiff slipped and fell in one of the defendant's stores. This Court concluded that the trial court erred in granting the defendant's motion for a directed verdict where the evidence supported a logical inference "that defendant's employees had mopped the floor on which Mrs. Berryman had fallen and that they had failed to post adequate warning signs." Id. at 93, 483 N.W.2d 642. This Court observed that the principal plaintiff in Berryman "established that defendant owed her a duty, that defendant breached that duty by creating a condition that was dangerous, that the condition created caused her injury, and that she suffered damages." Id. at 93-94, 483 N.W.2d 642.

It is true that the Berryman Court also stated that "[b]ecause the evidence leads to an inference that defendant created the condition that caused [the principal plaintiff's] fall, proof of notice is unnecessary...." Id. at 93, 483 N.W.2d 642. However, as we noted above, the Berryman panel had previously stated the principle that a storekeeper is liable for injury resulting from the active negligence of its employees. Berryman may not reasonably be read for the extraordinary proposition, totally at odds with basic principles of negligence law, that a premises possessor may be held liable for harm that inadvertently results in an attenuated sense from a reasonable act by an employee of the premises possessor, i.e., placing trash in a dumpster in ordinary circumstances. Rather, the circumstantial evidence in Berryman would have supported a finding that the defendant's employees failed to post adequate warnings of a floor that was wet because it had been mopped, and thus that the defendant's employees were actively negligent. Accordingly, Berryman, supra at 92-93, 483 N.W.2d 642, stands for the simple principle that where a plaintiff invitee in a premises liability case has presented evidence sufficient to support a finding of active negligence by a defendant storekeeper's employees that created a dangerous condition resulting in injury to the plaintiff, the plaintiff does not need to present further evidence that the defendant was on notice of the dangerous condition to avoid a directed verdict. However, because Hampton presented no evidence to support a finding of active negligence by Northwest Market or its employees in connection with his unfortunate fall, this principle from Berryman is inapplicable.

We acknowledge that in Albro v. Total Petroleum, Inc., 108 Mich.App. 1, 4, 310 N.W.2d 252 (1981), a case invoked by Hampton, this Court stated, in the course of reversing a grant of summary disposition in favor of the defendant in a premises liability case, that, "[n]otice may be inferred, however, where the presence of the substance causing the accident is ``occasioned by the proprietor or an employee.' [Suci v. Mirsky, 61 Mich.App. 398, 402, 232 N.W.2d 415 (1975) ]."^[2] However, we conclude, in accordance with our above discussion, that a finding of constructive notice where an accident is "occasioned" by the act of a proprietor or its employee is limited to circumstances in which the act by a proprietor or employee that "occasions" the accident is an unreasonable act. In this regard, we note that the circumstances of Albro involved the principal plaintiff's having allegedly slipped and fallen on spilled coffee at a place of business after the building became dark because of a complete power failure. Albro, supra at 2-3, 310 N.W.2d 252.

Further, the place at which the principal plaintiff in Albro allegedly fell was near the employees' coffee room that was supposed to be used only by employees of the defendant company, which provided sufficient circumstantial evidence to support a finding that an employee of the defendant spilled the coffee. See id. at 3-5, 310 N.W.2d 252. If an employee of a business spills coffee on a floor and fails to clean it up, this would almost always be an unreasonable act. Thus, the circumstantial evidence in Albro that an employee of the defendant in that case did exactly that was sufficient to defeat the defendant's motion for summary disposition. Accordingly, the Albro panel had no occasion to consider a situation in which a reasonable act by a business proprietor or its employee allegedly played a direct causal role in an injury to a plaintiff.

In the case at hand, at most the evidence presented arguably supported a finding that Northwest Market or one of its employees placed trash in a dumpster and that an oily substance in that trash leaked from the dumpster. Without more, however, that is insufficient to support a finding of negligence because placing trash in a dumpster is ordinarily a reasonable act. In sharp contrast to spilling coffee on the floor of a building and failing to clean it up, placing trash in a dumpster in or near a parking lot does not ordinarily involve the creation of a direct danger to visitors to the parking lot.

In sum, the trial court properly granted summary disposition in favor of both Waste Management and Northwest Market under MCR 2.116(C)(10).

Affirmed.

NOTES

[1] Deposition testimony was also presented in relation to the circumstances under which Hampton was on Northwest Market's property for purposes of determining Hampton's status on the land, e.g., whether he was an invitee, a licensee, or a trespasser. However, that issue is not material to our resolution of this appeal. Charles Watmuff, an employee of Waste Management, also indicated in an affidavit that "leak testing" of the dumpster at issue found that it did not leak any water. However, we place no reliance on that affidavit in our analysis of this appeal.

[2] In Suci, supra at 402, 232 N.W.2d 415, this Court likewise stated in dicta, "[k]nowledge of the unsafe condition is inferred where occasioned by the proprietor or an employee."