Defendants appeal as of right a jury judgment in favor of plaintiff after the trial court denied defendants’ motion for a directed verdict. Because defendants were entitled to a directed verdict, we reverse.
i
The event giving rise to this case occurred in the City of Wayne. Plaintiff, a school bus driver, was
These facts were set before the jury, along with City of Wayne Ordinances,. § 218.05, to whose applicability the parties stipulated, which reads in pertinent part:
SIDEWALK AND DRIVEWAY APPROACH PROCEDURE
(a) Construction. Sidewalks, except crosswalks, and driveway approaches shall be built and maintained by the owners of platted lands within the City in the рublic streets adjacent to and abutting upon such lots and premises according to plans and specifications approved by the City Engineer.
At the clоse of trial evidence, defendants moved for a directed verdict on two grounds: that a landowner’s duty to an invitee does not extend to open and obviоus hazards and that, as a matter of law, a city ordinance cannot create a private cause of action. Concerning the second ground, dеfendants argued that just as a city ordinance imposing responsibility for the maintenance of public sidewalks upon the adjacent property owner сreates only a public duty but does not alleviate the city’s liability for those sidewalks, the ordinance in question imposed on defendants no more than a public duty to maintain their driveway approach, with the city retaining liability. The trial court held the motion in abeyance.
Without objection from defendants, the jury was instructed on the duty of a landowner to an invitee and that it could consider violation of the cited
Defendants renewed their motion for a directed verdict after trial. Citing
Zielinski v Szokola,
On appeal, defendants’ sole argument is that they were entitled to a directed verdict because, as a matter of law, they cannot be held liable to any person who slips and falls on nаtural accumulations of ice on a driveway approach located within the public right of way.
n
A defendant is entitled to a directed verdict where а plaintiff has failed to establish a prima facie case.
Teodorescu v Bushnell, Gage, Reizen & Byington (On Remand),
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 whеre the municipality or property owner, by taking affirmative action, has increased the travel hazard to the public.
Zielinski, supra
at 615,
During proceedings before the jury, defendants did not dispute ownership of the driveway approach. However, in their motion, defendants pointed tо the terms of the ordinance as evidence that the city claimed a right of way in both the sidewalks and the driveway approach upon defendants’ prоperty. Plaintiff did not dispute that the approach fell within the city’s right of way, but argued that the law precluding a landowner’s liability for sidewalks did not apply to driveway аpproaches, so that the ordinance’s similar treatment of sidewalks and driveway approaches is not dispositive. On appeal, plaintiff pоints out that under MCL 691.1402; MSA 3.996(102), municipalities are liable for the maintenance and repair of public sidewalks, but not for driveway approaches.
Under the princiрles of premises liability, the right to recover for a condition or defect of land requires that the defendant have legal possession and control оf the premises.
Stevens v Drekich,
Owners of land abutting a street are presumed to own the fee to the property all the way to the cеnter of the street, subject to the easement of public way.
Thies v Howland,
In its codified ordinances, the City of Wayne defines its "easement of public right of way,” § 202.03(29), to expliсitly include
all streets, alleys and sidewalks, including the area reserved therefor where they have not been constructed, as well as all of the land not in private ownership, including lawn extensions lying between front property lines on either side of streets. [§ 1020.01.]
Section 218.05, by delegating responsibility for sidewalks and driveway approaches to adjacent landowners, indicates that the city’s right of way includes driveway approaches as well. This evidence, then, established that the city’s easement of public way extended to defendants’ driveway approach.
A right of way grants the right to unobstructed passage at all times over the grantor’s land, along with such rights as are incidental or necessary to the right of passage.
Harvey v Crane,
In Stevens v Drekich, which involved an injury allegedly resulting from overgrown foliage on thе defendant’s front lawn extension, this Court held that the plaintiffs suit was barred because
whatever residual rights to a public right-of-way are retained by an adjacent lаndowner, they are not possessory in nature. [178 Mich App 277 .]
Similarly, in
Devine v Al’s Lounge,
this Court held that the natural accumulation doctrine applied to driveway approaches just as to public sidewalks, because it was undisputed that the driveway approach was located within the city’s right of way, and the only evidence of possession or сontrol was that the owner of the business plowed and salted the driveway apron to maintain "easy access across public land to [the] parking lot.”
In this case, the only demonstrated evidence of defеndants’ possession or control was that Mr. Boldt routinely cleared the driveway approach along with his driveway. We find the holding of Devine to be applicablе here, and conclude that because plaintiffs evidence was insufficient to establish premises liability, defendants were entitled to a directed verdict.
Reversed.