DERBABIAN V S & C SNOWPLOWING, INC
Docket No. 216024
Court of Appeals of Michigan
Submitted February 14, 2001. Decided February 12, 2002
249 Mich. App. 695
The Court of Appeals held:
1. S & C is not liable to the plaintiffs under a premises liability theory because it did not have possession or control of the parking lot at the time of the slip and fall. In the context of this case, “possession” means the right under which one may exercise control over something to the exclusion of all others. Here, there is no indication that S & C ever controlled the parking lot to the exclusion of all others. Indeed, S & C was specifically hired to plow and salt the parking lot so that others could have access to it. In the context of this case, “control” means the exercise of restraint or discretion over something; dominate, regulate, or command; and the power to manage, direct, or oversee. Here, there is no evidence that the contract between Mariner‘s Pointe and S & C allowed S & C to exercise discretion over, dominate, regulate, or command in relation to
2. Premises liability is conditioned upon the presence of both possession and control over the land because the person or entity having both is normally best able to prevent harm to others. Here, S & C was not the entity that was in the best position to prevent injury to Robyn Derbabian. Instead, the record indicates that employees of Kroger (a business tenant of Mariner‘s Pointe and an invitor of Robyn Derbabian) were in the best position to prevent harm to her.
3. Assuming that S & C had possession and control of the parking lot at the time of the slip and fall, S & C would be liable only if the condition of the parking lot was caused by S & C‘s active negligence or the condition had existed a sufficient length of time that S & C should have had knowledge of it. The evidence in this case failed to show that S & C had actual or constructive notice of the icy condition of the parking lot or that S & C negligently failed to salt the parking lot.
4. A tort action will not lie when based solely on the nonperformance of a contractual duty. The plaintiffs do not have an action in tort against S & C that is independent of S & C‘s arguable breach of its contract with Mariner‘s Pointe in failing to inspect and salt the parking lot inasmuch as S & C did not have a common-law duty to plow, inspect, or salt the parking lot on the day of the slip and fall.
Reversed and remanded for entry of an order granting summary disposition to S & C.
WHITE, P.J., dissenting, stated that the plaintiffs adequately established S & C‘s common-law duty of care arising from the contract between S & C and Mariner‘s Pointe in light of case law holding that those foreseeably injured by the negligent performance of a contractual undertaking are owed a duty of care; that S & C had the requisite possession and control of the parking lot for the imposition of a duty of care on S & C in light of evidence that S & C had the power or authority to manage, direct, or oversee the parking lot for purposes of snow removal and salting; and that S & C should have known from the weather conditions that the parking lot would be icy and yet failed to take reasonable measures.
1. NEGLIGENCE — PREMISES LIABILITY — POSSESSION — CONTROL.
Possession and control of premises are required for imposition of premises liability; possession is the right under which the possessor exercises control over the premises to the exclusion of all
2. NEGLIGENCE — PREMISES LIABILITY — DANGEROUS CONDITIONS.
A possessor of premises is liable for injury to an invitee caused by a dangerous condition on the premises if the condition was caused by the active negligence of the possessor or the condition had existed a sufficient length of time that the possessor should have had knowledge of it.
3. TORTS — BREACH OF CONTRACT.
An action in tort will not arise from a breach of contract unless it would arise independently of the existence of the contract.
Law Offices of Samuel I. Bernstein (by Leonard E. Miller), for the plaintiffs.
Kallas & Henk, P.C. (by Scott L. Feuer), for the defendant.
Before: WHITE, P.J., and WILDER and ZAHRA, JJ.
WILDER, J. In this premises liability action, defendant S & C Snowplowing, Inc., appeals as of right trial court orders denying defendant summary disposition and entering judgment in favor of plaintiffs Robyn and John Derbabian.1 We reverse the judgment in favor of plaintiff and remand for entry of judgment in favor of defendant pursuant to
I. FACTS AND PROCEEDINGS
A. THE CONTRACT
During the winter of 1995-96, defendant and Mariner‘s Pointe Associates Limited Partnership (Mariner‘s Pointe) entered into a contract for the removal of
B. PLAINTIFF‘S INJURY AND LAWSUIT
On the morning of February 22, 1996, plaintiff arrived at Mariner‘s Pointe Shopping Center, got out of her vehicle, and began walking toward the Kroger store in the shopping center when she slipped and fell on ice, injuring her left ankle. Discovery evidence revealed that there was no precipitation falling at the time plaintiff fell, but that it had rained for a few hours the day before plaintiff fell. Discovery also established that defendant last plowed the parking lot on February 14, 1996, after a 4 1/2-inch snowfall and that, following that snowfall, defendant applied at least eight tons of salt between February 14, 1996, and February 18, 1996. In addition, the discovery process failed to produce any evidence that defendant negligently plowed or salted the parking lot after the February 14, 1996, snowfall or that there was additional snowfall between February 14, 1996, and Feb-
Plaintiff filed suit against Mariner‘s Pointe, the owner and operator of the shopping center, alleging, among other things, negligent maintenance of the parking lot and negligent failure to inspect the premises for dangerous conditions. Mariner‘s Pointe filed a third-party complaint for indemnification or contribution against defendant. Plaintiff then filed an amended complaint that added defendant as a primary defendant. The amended complaint alleged that defendant, along with Mariner‘s Pointe, “exercis[ed] control over the . . . parking lots” of Mariner‘s Pointe at the time of plaintiff‘s fall and that, on the basis of this control, defendant owed plaintiff a duty to exercise reasonable care to diminish the danger associated with accumulated ice and snow within a reasonable time after its accumulation and to ensure that the parking lot was maintained in a safe condition. Plaintiff also alleged that defendant‘s negligence in failing to inspect the parking lot for dangerous conditions, and in failing to rectify dangerous conditions that were present, amounted to a breach of defendant‘s duty to exercise reasonable care.
Defendant moved for summary disposition under
In response, plaintiff argued that because defendant failed to make reasonable inspections of the parking lot, and therefore could not alleviate the icy condition, defendant failed to exercise reasonable care in the performance of its contractual duties and was therefore negligent. Plaintiff also argued that because defendant entered into a contract with Mariner‘s Pointe to remove snow and ice and to ensure that the premises were safe, defendant assumed the duty of the premises owner, i.e., Mariner‘s Pointe, with regard to inspecting the premises for dangerous conditions, and further argued that there was a genuine dispute regarding whether defendant had knowledge of the icy condition. Following oral argument, the trial court concluded that factual issues existed that had to be decided by the jury, and therefore denied defendant‘s motion in its entirety.
Before trial, plaintiff settled with Mariner‘s Pointe, and Mariner‘s Pointe and defendant stipulated to dismiss the third-party action without prejudice. The case then proceeded to trial against defendant. At the close of plaintiff‘s case, defendant moved for a directed verdict, which the trial court denied. Defendant then rested without calling any additional witnesses.
Following the closing arguments, the jury found defendant ninety percent negligent, plaintiff ten percent negligent, and awarded plaintiff $45,000 for past
II. STANDARD OF REVIEW
This Court‘s review of a trial court‘s grant or denial of a summary disposition motion is de novo. Dressel v Ameribank, 247 Mich App 133, 136; 635 NW2d 328 (2001), citing Spiek v Dep‘t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). In reviewing a motion under
Similarly, we review de novo a trial court‘s decision regarding a directed verdict. Morinelli v Provident Life & Accident Ins Co, 242 Mich App 255, 260; 617 NW2d 777 (2000); Meagher v Wayne State Univ, 222 Mich App 700, 708; 565 NW2d 401 (1997). In review-
III. ANALYSIS
Defendant first argues that because it did not have possession and control of the parking lot when plaintiff fell, it should not be held liable under a premises liability theory. We agree.
To be liable under a premises liability theory, plaintiff must show that defendant was a possessor of the parking lot at the time of plaintiff‘s injury. Our Supreme Court has defined a “possessor” of land as:
“(a) a person who is in occupation of the land with intent to control it or
“(b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or
“(c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).” [Merritt v Nickelson, 407 Mich 544, 552; 287 NW2d 178 (1980), quoting 2 Restatement Torts, 2d, § 328 E, p 170.]
To determine whether defendant was a possessor of the parking lot, it is necessary to determine the meaning of the terms “possession” and “control” as used in the definition of “possessor.” Neither of these words has previously been defined by Michigan case law; accordingly, relevant dictionary definitions may be consulted in order to determine the plain meaning of these terms. Oakland Co Bd of Co Rd Comm‘rs v Michigan Property & Casualty Guaranty Ass‘n, 456 Mich 590, 604; 575 NW2d 751 (1998); Michigan Millers Mutual Ins Co v Bronson Plating Co, 445 Mich 558, 568; 519 NW2d 864 (1994); Hoover Corners, Inc v Conklin, 230 Mich App 567, 572; 584 NW2d 385 (1998).
Black‘s Law Dictionary (7th ed) defines “possession,” in this context, as “[t]he right under which one may exercise control over something to the exclusion of all others” (emphasis added).4 Here, there is no indication that defendant ever controlled the parking lot to the exclusion of all others. Indeed, it is apparent that defendant was specifically hired to plow and salt the parking lot so that others may have access to it. Random House Webster‘s College Dictionary (1995), p 297, defines “control” as “exercis[ing] restraint or direction over; dominate, regulate, or command.” Similarly, Black‘s Law Dictionary defines “control” as “the power to . . . manage, direct, or over-
In Kubczak v Chemical Bank & Trust Co, 456 Mich 653, 661; 575 NW2d 745 (1998), the Supreme Court stated that “possession for purposes of premises liability does not turn on a theoretical or impending right of possession, but instead depends on the actual exercise of dominion and control over the property.” (Emphasis added.) Thus, “even if the [contract] could be construed as granting defendant the [theoretical] right to control the [parking lot], there is no evidence that defendant [actually] exercised that right” on the day of plaintiff‘s injury. Little v Howard Johnson Co, 183 Mich App 675, 679; 455 NW2d 390 (1990); see also Kubczak, supra. Rather, the evidence indicated that defendant had not plowed or salted the parking lot since the last snowfall, several days before plaintiff‘s injury, and that the business tenants of Mariner‘s Pointe had possession of the parking lot for purposes of conducting business on the day of plaintiff‘s injury.
In addition, “premises liability is conditioned upon the presence of both possession and control over the land” because the person having such possession and control is ” ‘normally best able to prevent . . . harm to others.’ ” Merritt, supra at 552, quoting Prosser, Torts (4th ed), § 57, p 351. See also Kubczak, supra at 662, quoting Nezworski v Mazonec, 301 Mich 43, 56; 2 NW2d 912 (1942). Here, defendant was not the person who was in the best position to prevent plaintiff‘s injury. Instead, the record indicates that employees of Kroger (a business tenant of Mariner‘s Point and an invitor of plaintiff) were in the best position to prevent plaintiff‘s harm. Anderson, supra; see also Minton v Krish, 34 Conn App 361; 642 A2d 18 (1994).6
Hence, because (1) nothing in the contract granted defendant “exclusive authority” over the parking lot,
Further, assuming defendant was in possession and control of the parking lot at the time of plaintiff‘s injury, defendant would be liable for plaintiff‘s injuries only if the condition of the parking lot was caused by defendant‘s active negligence or the condition “ha[d] existed a sufficient length of time that [defendant] should have had knowledge of it.’ ” Hampton v Waste Management of Michigan, Inc, 236 Mich App 598, 604; 601 NW2d 172 (1999), quoting Berryman v K mart Corp, 193 Mich App 88, 92; 483 NW2d 642 (1992). Because it had not snowed for several days, had only rained a few hours before reverting to freezing temperature, the ice patch was only the size of two parking spaces, and no other person, including plaintiff, had observed the ice before the fall, plaintiff failed to establish that defendant knew or should have known of the icy condition of the parking lot. See Hampton, supra at 605-606. Thus, plaintiff failed to establish that defendant had actual
Because plaintiff did not establish that defendant had notice of the condition of the parking lot, we find the present situation distinguishable from Osman v Summer Green Lawn Care, Inc, 209 Mich App 703, 708; 532 NW2d 186 (1995). There, the defendant was found liable because of active negligence in removing the snow from the premises and placing it on a portion of the premises where the defendant knew or should have known it would melt and refreeze. Id. at 704. The plaintiff in Osman also alleged that the defendant was negligent in failing to keep the premises safe after the defendant had actual notice of the dangerous condition. Id. Here, the evidence did not establish that defendant negligently plowed or salted the parking lot or that defendant had actual knowledge of the dangerous condition; rather, at best, the evidence proved merely that defendant did not inspect and salt the parking lot on the morning of plaintiff‘s fall. Thus, unlike Osman, where the defendant acted under the contract but did so negligently, plaintiff‘s assertion that defendant was negligent here can only derive from defendant‘s alleged nonperformance of the contract. While Courtright v Design Irrigation, Inc, 210 Mich App 528, 531; 534 NW2d 181 (1995), provides that a person who undertakes a service for another is subject to liability to a ” ‘third person for physical harm resulting from his failure to exercise reasonable care’ ” if ” ‘he has undertaken . . . a duty owed by the other to the third person,’ ” id., quoting 2 Restatement Torts, 2d, § 324A, p 142, under the circumstances here there was no genuine issue of
Finally, Clark v Dalman, 379 Mich 251, 261; 150 NW2d 755 (1967), and Auto-Owners Ins Co v Michigan Mut Ins Co, 223 Mich App 205, 212; 565 NW2d 907 (1997), held that a party to a contract may be held liable in tort for an injury suffered by a third party (i.e., a person not party to the contract) who is foreseeably injured by the negligent performance of the contract. In the instant case, plaintiff has not alleged that defendant negligently performed a contract; rather, plaintiff alleged that defendant was negligent because of its failure to perform a contract. Accordingly, Clark and Auto-Owners are distinguishable from the instant case; indeed, this case is more akin to Hart v Ludwig, 347 Mich 559; 79 NW2d 895 (1956), and Freeman-Darling, Inc v ASR, Inc, 147 Mich App 282, 284-286; 382 NW2d 769 (1985).
In Freeman-Darling, this Court stated that ” ‘a tort action will not lie when based solely on nonperformance of a contractual duty.’ ” Id. at 284, quoting Crews v General Motors Corp, 400 Mich 208, 226; 253 NW2d 617 (1977) (emphasis in original). Here, defendant‘s negligence occurred, if at all, because defendant did not inspect and salt the Mariner‘s Pointe parking lot after it had rained.9 Therefore, the proper question to
IV. CONCLUSION
Because plaintiff failed to establish a genuine issue of material fact regarding whether defendant (1) was in possession and control of the parking lot, (2) had knowledge of the icy condition, and (3) was unreasonable in its failure to salt the parking lot given the weather conditions, Hampton, supra at 604, we hold that defendant owed no duty to plaintiff; accordingly, we reverse the entry of judgment in favor of plaintiff and remand with instructions for the trial court to enter an order granting defendant summary disposition pursuant to
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
WHITE, P.J. (dissenting). I respectfully disagree with the majority‘s determinations regarding whether defendant had a duty of care, possession and control of the parking lot, and constructive notice of the condition of the parking lot, and therefore dissent.
I
Plaintiff adequately established defendant‘s common-law duty of care arising from the contract. I observe that plaintiffs did not plead a breach of contract action, and the case was at all times a negligence action.
Thus, the issues stressed by defendant1 — whether plaintiff could sue for breach of contract as a third-party beneficiary and whether the contract expressly placed liability for injury to third persons on defendant — are not relevant to the case before us. Nevertheless, as the trial court recognized, the existence and terms of the contract were not irrelevant to the negligence action.
In Clark v Dalman, 379 Mich 251, 261; 150 NW2d 755 (1967), the Supreme Court noted:
[W]hile this duty of care, as an essential element of actionable negligence, arises by operation of law, it may and frequently does arise out of a contractual relationship, the theory being that accompanying every contract is a common-law duty to perform with ordinary care the thing
agreed to be done, and that a negligent performance constitutes a tort as well as a breach of contract. But it must be kept in mind that the contract creates only the relation out of which arises the common-law duty to exercise ordinary care. Thus in legal contemplation the contract merely creates the state of things which furnishes the occasion of the tort. This being so, the existence of a contract is ordinarily a relevant factor, competent to be alleged and proved in a negligence action to the extent of showing the relationship of the parties and the nature and extent of the common-law duty on which the tort is based.
In Clark, a contractor repaired, cleaned, and painted a city water storage tank and applied a slippery substance to the ladder and surface of the tank, when the contractor knew or should have known that an inspector would later inspect the project. The inspector fell from the ladder and sustained injuries. The trial court directed a verdict of no cause of action on both the plaintiff‘s contract and tort counts, concluding regarding the latter that tort may not be founded on the failure to perform a contract. Id. at 259. The Supreme Court affirmed with regard to the contract count “since the plaintiff was not a party to the contract in any sense of the term, [and thus could not] enforce an obligation created by it,” but reversed on the tort count:
A favorable-to-plaintiff view of the evidence indicates that pursuant to the contract between defendant and the city of Otsego, plaintiff was the duly authorized inspector of the project with obligations of general inspection as well as the specific duty of inspecting the various stages of the repair operation before defendant was authorized to proceed to the next step in the repair work. Far from being a trespasser on the premises, plaintiff was at least a licensee, or possibly an invitee. The general duty of a contractor to act so as not to unreasonably endanger the well-being of
employees of either subcontractors or inspectors, or anyone else lawfully on the site of the project, is well settled. [Id. at 262].
See also Garden City Osteopathic Hosp v HBE Corp, 55 F3d 1126 (CA 6, 1995) (quoting portions of the above paragraph from Clark, supra).
Those foreseeably injured by the negligent performance of a contractual undertaking are owed a duty of care. Auto-Owners Ins Co v Michigan Mut Ins Co, 223 Mich App 205, 212; 565 NW2d 907 (1997), quoting Osman v Summer Green Lawn Care, Inc, 209 Mich App 703, 708; 532 NW2d 186 (1995), overruled in part on other grounds Smith v Globe Life Ins Co, 460 Mich 446, 455-456, n 2; 597 NW2d 28 (1999). Contrary to defendant‘s assertions, plaintiff need not be a third-party beneficiary to the contract, and no special relationship is required.2
In Osman, the defendant snow-removal company sought summary disposition on the grounds that it did not own the premises and its contract with the owner stated that it assumed no duties of the owner. This Court reversed the circuit court‘s grant of summary disposition, concluding that the contract did not absolve the defendant of liability for its own negligence and that the duty to provide snow-removal services in a reasonable manner was established not
The trial court incorrectly interpreted the terms of this contract to limit the duty defendant owed to plaintiff. Not only did the contract articulate that defendant would remain liable for its negligent conduct, but such duty also arose out of defendant‘s undertaking to perform the task of snow plowing. The duty allegedly owing is that which accompanies every contract, a common-law duty to perform with ordinary care the things agreed to be done. . . .
Defendant argues that plaintiff was not in privity of contract with defendant and the premises owner, and therefore was owed no duty. While it may be true that plaintiff is not owed a duty under the contract itself, the contract is the basis out of which arises defendant‘s common-law duty to plaintiff. . . .
* * *
. . . Even if the language [of the contract] were able to shift liability to [the owner], defendant would still owe plaintiff a common-law duty separate and apart from the contract itself. Duty of care not only arises out of contractual relationship, but it also arises by operation of law, a general duty owed by defendant to the public of which plaintiff is a part. Clark, supra at 260-261. Therefore, even though plaintiff was not in privity of contract, she was owed a duty of ordinary care by defendant. [209 Mich App 707-710.]
II
The trial court did not err in concluding that the contract granted defendant the requisite possession
The contract S & C and Mariner‘s Pointe entered into for snowplowing and salting services provided that Mariner‘s Pointe would pay S & C a flat fee for snowplowing for the 1995-96 season. Salting was addressed in the contract separately from the flat snowplowing fee; the contract specified that salting of the parking areas would be billed at $90 a ton of salt and that salt application was “by Contractor discretion,” rather than “by Customer request.” The contract also provided that all work was “to be completed in a professional manner according to standard practices.”
Pat Cimino, one of defendant‘s owners, testified at deposition that he and his son-in-law, Paul Sifford, incorporated S & C around 1980. Cimino responded affirmatively when asked at deposition whether it was his understanding that S & C had “total discretion as to when you would salt the lots at Mariner‘s Point,” and that either he or Sifford would make the decision after talking to each other, using weather conditions as the criterion. Paul Sifford testified at deposition that he interpreted the contract language that left salt application to S & C‘s discretion as meaning that Mariner‘s Pointe could also call S & C and request salting.
Alene Chernick, the property manager and part owner of Mariner‘s Pointe, and the person who negotiated the instant contract with defendant was deposed before trial and testified at trial. Chernick testified that Mariner‘s Pointe hired defendant to
Chernick testified that her office was in Southfield, that Mariner‘s Pointe did not have personnel on-site at the shopping center, although she visited the shopping center at least once a week, and that inspections were left to defendant. Chernick did not keep a log of her visits to the shopping center and could not say whether she had been there in the days before plaintiff‘s fall. In general, if Chernick saw on one of her visits to the shopping center that the parking lot was snowy or icy, she would call S & C. Chernick testified that S & C was recommended to her and that she relied on defendant‘s experience and knowledge of snow removal and salting.
The majority seizes upon a definition of “possession” that includes the concept of exclusive authority.
III
I also disagree with the majority‘s determination that plaintiff failed to present sufficient evidence that defendant had constructive notice of the condition of the parking lot to survive summary disposition. There was sufficient evidence both in response to the motion for summary disposition and at trial that defendant should have known of the hazardous condition. S & C invoices submitted below indicated that S & C plowed and salted on February 14, 1996, following 4 1/2 inches of snowfall, dropping five tons of salt on the parking lot; salted on February 15, 1996, dropping 3 1/2 tons of salt on the parking lot; and salted on February 16, 1996, dropping 4 1/2 tons of salt on the parking lot. In answers to requests for admission, defendant stated that it applied salt to the parking lot at issue on February 18, 1996, and admitted that no salt was applied from February 19 to 23, 1996. Plaintiff was injured on February 22.
Paul Gross, plaintiffs’ meteorological expert, testified that on the day before plaintiff fell, February 21, 1996, it rained continuously from approximately 8:00 A.M. until 2:30 P.M., and the temperature dropped to freezing around 9:00 P.M. and remained at or below
I conclude that the evidence could support reasonable inferences that defendant should have known of the icy condition and failed to take reasonable measures.