*1 view Fountain Deusen v 1976] TERRACES, INC. VAN v FOUNTAINVIEW DEUSEN op the Court of Review. Verdict —Standard 1. and Error —Directed reviewing Appeals, a directed verdict in favor The Court of when defendant, plain- favorable to the most tiff. Negligence Duty—Invitor—Invitee—Landlord 2. Tenant— — Ice and Accumulation. Snow —Mud care to diminish the
An invitor to exercise reasonable has a accumulation, although the invitor is hazards of ice and snow invitee; safety of an there is no not an insurer of the accumulation of ice between a natural substantial difference a result of accumulation of mud as and snow and a natural Negligence—Duty—Ice and Snow— Verdict— Acts —Directed Mud Accumulation —Affirmative Reasonable Care. natural hazards not to increase the any or create a new hazard and snow or mud accumulation act; as can be seen affirmative effect, and, therefore, a such an affirmative act with hazardous granted verdict for trial court should not have a directed negligent place- alleged tenant defendants where proceeding, it since ment of a jury determination whether or not the defendants’ on a of mud accu- care to diminish the hazards exercise reasonable mulation. References for Points in Headnotes 2d, 2d, 489; 30 Am 1086. 75 Am Jur Trial Jur Evidence § §
[1]
[2,
2d,
seq.
49 Am Jur
Landlord
Tenant
et
§
2d,
Am Jur
Landlord and Tenant 776.
§
[4-6]
by Bashara, Negligence
Duty—Property
4.
Owners —Landlord
and Tenant
op
*2
—Natural Accumulation
Mud.
An owner of
to
has
diminish the hazards of the
natural accumulation of mud due to inclement weather.
Negligence—Duty—Maintenance—
5. Landlord
and Tenant —
Garbage Disposal Area.
garbagé
and maintenance of a
landlord,
on the shoulders of a
since that area is under his
control.
Negligence—Duty—Common
Areas—
Repair Reasonably
Jury
Good
Safe for Use —
Question.
keep
good
repair
common areas in
and
tenants;
safe for the use of
it is a
question,
personal
injury
in a
against
landlord,
action
whether or not the
has been met.
Macomb,
from
Edward J. Gallagher,
J.
13, 1976,
(Docket
Submitted April
at Detroit.
No.
23071.)
27,
Decided May
1976. Leave to appeal
denied,
Complaint by Margaret Van against Deusen Terraces, Inc., Fountainview and Tri-County Sani- Services, Inc., tation personal for injuries from a fall while was attempting deposit garbage in a dumpster maintained on defendant Fountainview’s property. Judgment on a directed for defendants. Plaintiff appeals. Reversed and remanded. Deegan,
Stavoe & for Alexander, Buchanan & Seavitt S. Floyd (by Westcott), for defendant Terraces, Fountainview Inc.
Eggenberger, Eggenberger, Weber, McKinney & for Tri-County Sanitation Services, Inc. Deusen B. R. Burns
Before: Quinn, JJ. in a fall injured was Burns, Plaintiff
R. B. in a deposit attempting while landlord’s defendant dumpster maintained directed verdict from property. appeals She defendants. We reverse. established trial at surface, and was on a bare sat bounding curb beyond 4 feet
situated 2-1/2 to house. apartment lot of paved parking old, her lease to Plaintiff, required by years trash facilities. landlord’s make use of the onto step location of the trash. deposit her the dirt surface to afternoon January occurred on The accident *3 the testified that rain. Plaintiff period after a of the area between and that the parking dry lot was appear not be dumpster did curb and the however, surface, the stepping onto muddy. Upon lost she mud and the sank into her entire shoe a fracture balance, She suffered falling backward. approxi- the lying on and remained one hour. mately in favor of de- reviewing a directed
In the fendants, Court is this in the Synkonis, Heins v most favorable Mich Court in Michigan Supreme Co, Atlantic & Pacific The Great rule 244, 248; abandoned 235 NW2d haz respecting is owed the invitee "no that of ice and natural accumulations arising from ards is a new standard: Advanced snow”. 69 of "While the an insurer invitor is not of
safety invitee, of the a to exercise the invitor has reasonable care the hazards of ice and 261. to diminish snow accumulation.” 395 Mich at persuaded
We are there no substantial a accumulation difference between and natural accumulation of snow and a natural mud as a result of dumpster
whether of defendants’ "exer- cise reasonable care to diminish the of hazards * * * [mud] accumulation”. The answer is cer- tainly sufficiently disputable require jury’s determination. alleged negligent placement Plaintiff has of the proceeding. The Quinli language
van Court of recalled the Bard v Weath Michigan, App 329, ervane of NW2d 709 that a defendant has the "to not increase these natural hazards or create by any place new hazard affirmative act”. The ment of the can be seen as such an affirmative act with hazardous effect. oppor-
We believe should an have tunity to have a if determine negligent proximate and a injuries. prior knowledge of cause Defendants’ of the hazardous condition is material to the con- cept foreseeability. purposes retrial, For we note our conclusion that the trial court was in excluding discovery deposition error Karen Morin and the offered of witness Mr. Sutherland.
Reversed and remanded for a new trial. Costs to Quinn, concurred. 203 Van Deusen v P. J. in the re (concurring). I concur
Bashara, P. J.
v
However,
agree
I
sult.
cannot
Co, Inc, Pacific
Great
&
Atlantic
controlling.
re
(1975),
My
NW2d
the owner
search discloses
accumula
the natural
to diminish the hazards
weather.
inclement
tion of mud due to
basically
negligence
plaintiffs
theory
in an area
garbage
view is
prevalent
that was not maintained.
maintenance
of the land
on the shoulders
his control Weidner
lord,
is under
since that area
Schottenstein,
376; 169 NE2d
v
Ohio
McIndoe,
82; 207
93 Cal
2d
Keane v
Kintzele,