Plaintiffs appeal as of right from an order granting defendants summary disposition in this slip and fall case. We affirm in part and reverse in part.
On Friday, January 6, 1995, several inches of snow fell near the home of Daniel and Kathleen Wiegand in Grosse Pointe. On Saturday morning Mr. Wiegand used a snowblower and a shovel to remove the snow from the driveway and a walkway that led from the driveway to the front door of the house, clearing these areas to their bare concrete surfaces. Mr. Wiegand could not recall if he applied salt. After completing the snow removal, the Wiegands (homeowners) went to visit a relative in Ohio. The Wiegands had signed a listing agreement with Jim Saros Agency, Inc., a real estate agency, to sell their house. On Sunday, January 8, 1995, Jim Koukios, a licensed real estate agent employed by the Saros Agency, posted signs in the neighborhood advertising an open house at the homeowners’ residence before arriving at the home around 1:45 P.M. The homeowners had left a key to their house with Koukios, who had requested that they not be home during the open house. Although the sun was shining, it was a cold afternoon. The driveway and walkway were completely cleared of snow and there had been no new precipitation. Soon after the open house began, plaintiff Constance Anderson parked her car in front of the house and walked up the driveway. As Mrs. Anderson stepped off the driveway onto the walkway leading to the house, she took one step, slipped, and fell. Before Mrs. Anderson fell, Koukios had not noticed any patches of ice. Mrs. Anderson also did not see any ice before she fell. Nevertheless, it was discovered that she had slipped on a patch of ice. Mrs. Anderson testified that the patch of ice covered the width of the walkway although she was not sure how long the patch was. Koukios indicated he saw a patch of ice about one foot by a foot and a half upon coming to Mrs. Anderson’s assistance. Koukios said he did not see any salt near the area where Mrs. Anderson fell. One witness indicated that the weather conditions were such that snow, melted by the sun, may have been refreezing in shadowed areas.
Plaintiffs filed a lawsuit seeking compensation for injuries Mrs. Anderson sustained as a result of her fall. Answers were filed by the defendants, although no cross-claims were filed. After several depositions had been taken, the homeowners filed a motion for summary disposition. The homeowners argued that on the day of the open house they were not home and that the clear and bright weather conditions caused accumulated snow to melt. The homeowners further argued that they owed Mrs. Anderson no duty because she was injured on ice that formed from the melting and thawing of a natural accumulation of ice and snow. The
Because the trial court relied on information beyond the pleadings, we consider the motion to have been granted pursuant to MCR 2.116(C)(10). A motion brought under this rule tests the factual sufficiency of a claim. We must give the benefit of reasonable doubt to, and make all reasonable inferences in favor of, the nonmoving party in determining whether a genuine issue of material fact exists.
Skinner v Square D Co,
There is no dispute that Mrs. Anderson was an invitee. A possessor of land has a duty to exercise reasonable care for the protection of an invitee.
Schuster v Sallay,
Plaintiffs argue that whether defendants breached the duties they owed was a question for the factfinder. Plaintiffs note that they are not arguing that a continuing duty to reinspect exists. Rather, plaintiffs argue that defendants, knowing a specific time when a business event was to be held, were under a duty to take reasonable steps to make the entry sidewalk to that event as safe as possible, including the spreading of salt or sand where the danger of melting and refreezing of ice on the surface, a well-known phenomenon, was reasonably foreseeable. Mrs. Anderson further argues that just because she did not see the ice before she fell on it does not mean that the ice was not apparent or visible to anyone, e.g., someone whose duty is to keep the sidewalk clear. Plaintiffs contend that it is for the jury to decide whether defendants’ failure to take action immediately before the scheduled open house was reasonable. Upon review de novo,
Groncki v Detroit Edison Co,
In
Quinlivan, supra,
the Supreme Court overruled the natural accumulation rule
2
in the invitor-invitee context. The
Here, the homeowners took reasonable measures within a reasonable time after the accumulation of snow to diminish the hazard of injury to Mrs. Anderson. The homeowners then ceded possession of the premises to the realtor, a responsible individual, for the purposes of conducting the open house as is common in the real estate industry. The realtor was an independent contractor operating pursuant to a contract with the homeowners. Pursuant to the general rule that an employer of an independent contractor is not liable for the contractor’s negligence,
Phillips v Mazda Motor Mfg (USA) Corp,
As explained below, the trial court erred in granting summary disposition to the realtor defendants. The realtor defendants argue that they were entitled to summary disposition because the driveway and sidewalk had been cleared the day before the open house, there had been no new precipitation, the weather was clear at the time of the fall, and the ice was not
apparent. The realtor defendants cite
Zielinski v Szokola,
Because the forces of nature reasserted themselves and may have caused the plowed snow to melt and refreeze does not merit attachment of liability.
* * *
. . . [Defendants cannot be held liable merely because the powerful forces of nature reassert themselves and a cleared surface refreezes.
We distinguish Zielinski because the plaintiff in that case was a licensee and not an invitee. Indeed, Zielinski recognized that landowners owe a higher duty to invitees than licensees. Zielinski, supra at 618. We also find that the cited language from Gresko is not an accurate statement of law vis-a-vis invitees because we find it is inconsistent with Quinlivan.
When a snowfall occurs, the forces of nature are asserting themselves.
Quinlivan
There is a genuine issue of material fact regarding whether the realtor defendants took reasonable steps within a reasonable time after the forces of nature reasserted themselves and melted snow began freezing as ice on the sidewalk where Mrs. Anderson fell. There is no testimony in this record that Koukios examined the sidewalk to determine whether salt or sand might be needed immediately before the open house was to begin. Given the fact that invitors may be liable for dangerous conditions that might be discovered with reasonable care, Merritt, supra, it is for the jury to decide whether Koukios’ lack of action immediately before the scheduled open house was reasonable.
Affirmed in part and reversed in part. Plaintiffs, being the prevailing party, may tax costs against the realtor defendants pursuant to MCR 7.219. Defendants Wiegand, being the prevailing party, may tax costs pursuant to MCR 7.219.
Notes
We assume defendants did not argue the danger was open and obvious because no one had seen the ice before Mrs. Anderson fell.
As stated in
Morrow v Boldt,
The natural accumulation doctrine provides that neither a municipality nor a landowner has an obligation to a licensee to remove the natural accumulation of ice or snow from any location, except where the municipality or property owner, by taking affirmative action, has increased the travel hazard to the public. The natural accumulation doctrine does not apply to situations involving an invitee injured on private property. A landowner’s obligation to an invitee is to take reasonable measures within a reasonable time after the accumulation of snow to diminish the hazard of injury. However, a landowner has no duty even to an invitee to clear natural accumulations of ice or snow from public sidewalks abutting his property. A panel of this Court has extended that rule to driveway approaches as well. [Citations omitted.]