Bauer v. City of Garden City , 139 Mich. App. 354 ( 1984 )

139 Mich. App. 354 (1984) 362 N.W.2d 280

BAUER
v.
CITY OF GARDEN CITY

Docket No. 77179.

Michigan Court of Appeals.

Decided December 3, 1984.

Bockoff & Zamler, P.C. (by Larry K. Bowerman), for plaintiff.

Cummings, McClorey, Davis & Acho, P.C. (by Susan D. Nelson), for defendant.

Before: SHEPHERD, P.J., and WAHLS and J.W. FITZGERALD,^[*] JJ.

SHEPHERD, P.J.

Plaintiff appeals as of right from a grant of summary judgment for failure to state a claim, GCR 1963, 117.2(1). We reverse.

By her complaint, plaintiff alleged that she injured her thumb when she fell on a shopping center parking lot. She was returning from one of the stores in the shopping center to her automobile when she fell. Defendant owns the parking lot. Plaintiff claimed that defendant breached a duty owed to invitees of the shopping center to remove ice and snow from the parking lot. According to plaintiff, this breach of duty resulted in an unsafe condition and caused her fall.

The circuit judge held that the rule of "natural accumulation" applied to the situation described in the complaint and, therefore, the defendant city lacked responsibility for plaintiff's injury.

Summary judgment was proper only if plaintiff's claim is so clearly unenforceable as a matter of law that no factual development could possibly furnish a basis for recovery. Abel v Eli Lilly & Co, 418 Mich. 311, 323; 343 NW2d 164 (1984); Denning v Farm Bureau Ins Group, 130 Mich. App. 777, 788; 344 NW2d 368 (1983).

It is beyond peradventure that the owners of a shopping center have a duty to their business invitees "to exercise reasonable care to diminish the hazards of ice and snow accumulation". Quinlivan v The Great Atlantic & Pacific Tea Co, Inc, 395 Mich. 244, 261; 235 NW2d 732 (1975). As owner of the parking lot, the defendant city assumed the same duty. Id., pp 266-270. Defendant had the requisite "control and possession" of the parking lot to give rise to a duty to make the area safe. Id., p 267; see also, Siegel v Detroit City Ice & Fuel Co, 324 Mich. 205, 214-215; 36 NW2d 719 (1949).

Defendant relies on decisions in which Michigan courts have applied the so-called "natural accumulation" rule:

"A municipality in Michigan is not negligent if it omits to protect pedestrians from dangers to life and health which are caused by the accumulations of ice and snow on sidewalks from natural causes." Hampton v Master Products, Inc, 84 Mich. App. 767, 770; 270 NW2d 514 (1978). (Citations omitted.)

In Quinlivan, supra, p 256, the Supreme Court declined to address the "duty owed the user of public streets and sidewalks". Rather, the Court did away with the "natural accumulation" rule as it related to private land. Nevertheless, what remains of the rule does not prevent assignment of liability to the city in this case. The situs of plaintiff's alleged injury was not a public street or sidewalk, but a commercial parking lot. Plaintiff's claim does not call for consideration of the city's statutory duty with respect to public highways or sidewalks. Id.; MCL 691.1401 et seq.; MSA 3.996(101) et seq. Rather, defendant's duty arises from its ownership of a commercial premises and the consequent assumption of responsibility to the invitees of the establishments served by that premises. Hence, the natural accumulation doctrine, which limits only defendant's statutory duty, has no application to the instant matter.

Defendant raises no defense on governmental immunity. In any event, we do not view ownership of a shopping center parking lot as a "governmental function". MCL 691.1407; MSA 3.996(107). We hold that the city, as the owner of a commercial parking lot, owed plaintiff a duty of reasonable care. This duty "require[d] that reasonable measures be taken within a reasonable time after an accumulation of ice and snow to diminish the hazard of injury to the invitee". Quinlivan, supra, p 261. Accordingly, plaintiff stated a viable claim.

Reversed and remanded for proceedings consistent with this opinion.

No costs, a public question being involved.

NOTES

[*] Retired Supreme Court Justice, sitting on the Court of Appeals by assignment.