Buffa v. Dyck , 137 Mich. App. 679 ( 1984 )

137 Mich. App. 679 (1984) 358 N.W.2d 918

BUFFA
v.
DYCK

Docket No. 71207.

Michigan Court of Appeals.

Decided July 19, 1984.

Gagleard, Addis, Imbrunone & Gagleard, P.C. (by Michael A. Gagleard), for plaintiffs.

Martin, Bacon & Martin, P.C. (by Stuart A. Fraser), for defendant.

Before: HOOD, P.J., and M.J. KELLY and R.C. LIVO,^[*] JJ.

PER CURIAM.

Plaintiffs appeal as of right from an order of summary judgment in favor of defendant. Defendant filed her motion under both GCR 1963, 117.2, subds (1) and (3), and the trial court appeared to decide the motion under GCR 1963, 117.2(1), holding that "no factual development could possibly justify a right to recovery". In its opinion, however, the trial court relied upon facts developed by the parties on discovery and not alleged in the complaint, an improper basis in deciding a motion for summary judgment under GCR 1963, 117.2(1). Blake v Consolidated R Co, 129 Mich App 535, 543; 342 NW2d 599 (1983). We thus review the trial court's decision under GCR 1963, 117.2(3) and consider whether there is a genuine dispute as to any material issue of fact and, if not, whether any factual development could possibly justify plaintiff's claim. Anderson v Kemper Ins Co, 128 Mich App 249, 252-253; 340 NW2d 87 (1983).

According to the facts viewed in a light most favorable to plaintiffs, Louise Buffa (plaintiff) slipped and fell on February 4, 1981, while walking on a public sidewalk abutting defendant's personal residence. Approximately four inches of snow had fallen on February 1st and 2nd, 1981, and, in clearing the snow from the sidewalk, defendant had followed the traditional practice of piling the shoveled snow along both sides of the walk. By February 4, 1981, some of the snow had melted and flowed back onto a portion of the sidewalk. The melted snow subsequently froze causing an icy condition. Plaintiff, 68 years old at the time, slipped and fell on this patch of ice, severely and permanently injuring her hip.

The general rule is that property owners have no duty to maintain public sidewalks abutting their property free from the natural accumulation of ice and snow. Elam v Marine, 116 Mich App 140, 142; 321 NW2d 870 (1982). Plaintiff, however, relies upon two exceptions to the rule, the first being the increased hazard exception developed in Weider v Goldsmith, 353 Mich 339; 91 NW2d 283 (1958); Woodworth v Brenner, 69 Mich App 277; 244 NW2d 446 (1976); Mendyk v MESC, 94 Mich App 425; 288 NW2d 643 (1979), and Stamatakis v Kroger Co, 121 Mich App 281; 328 NW2d 554 (1982), lv den 417 Mich 1014 (1983). Under this exception, a landowner whose property abuts a public sidewalk is liable for slip and fall injuries occurring on that sidewalk where he or she has taken some action to clear the walk of ice and snow and where that action has increased the hazard of travel over the sidewalk. However, any increased danger cannot be the direct result of natural forces. Mendyk, supra, pp 434-435. Thus, where an abutting property owner clears away snow from a public sidewalk and natural forces such as melting and freezing subsequently cause icy conditions, liability will not attach. Weider, supra; Woodworth, supra. Where, however, the icy condition is caused by some unnatural force, such as the placing of salt on the cleared sidewalk, liability may attach. Mendyk, supra.

In this case, there is no dispute but that the icy patch upon which plaintiff fell was directly caused by the natural forces of melting and freezing. In fact, plaintiff alleges negligence in defendant's failure to apply salt, gravel or sand to the sidewalk, thus taking this case outside the Mendyk exception. We affirm the trial court's grant of summary judgment for failure of plaintiff to state or establish facts which would allow recovery under the increased hazard exception.

Plaintiff also relies upon a second exception to the no-liability rule and alleges that defendant took affirmative steps to alter the condition of the sidewalk itself thus causing an unnatural or artificial accumulation of ice on the walk. Specifically, plaintiff argues that defendant allowed grass to grow up over the sidewalk thus causing a mound and a "dip" on the sidewalk at which point water unnaturally accumulated and froze. Plaintiff alternatively argues that defendant created a nuisance in fact for which she may now be held liable.

We agree with the trial court that no factual development could justify a finding of liability under either of these theories. The growing of grass along the edge of a sidewalk will always result in the abutting land's being elevated somewhat over the sidewalk. This does not constitute an alteration in the sidewalk, however, leading to an unnatural accumulation of ice. Moreover, even assuming there was a "dip" in the sidewalk which trapped water and ice and thereby created a nuisance, plaintiff's cause of action is not against the abutting property owner but against the owner of the sidewalk, the city. In fact, the cases cited by plaintiff in favor of recovery under a nuisance theory constitute actions brought by slip and fall victims against the city-owners of the sidewalks. Navarre v Benton Harbor, 126 Mich 618; 86 NW 138 (1901); Hughes v Detroit, 336 Mich 457; 58 NW2d 144 (1953).

We conclude that the trial court properly granted summary judgment in favor of defendant in this case. We further find that the trial court properly denied plaintiff's motion to amend since the proposed amendment related to the growing of grass along the sidewalk and would thus have been futile in the face of defendant's motion for summary judgment. GCR 1963, 118.1; Barnard v Hartman, 130 Mich App 692, 697; 344 NW2d 53 (1983).

Affirmed.

NOTES

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