Plaintiff slipped and fell on the sidewalk abutting the property of defendants Brenner. Plaintiff alleged in his complaint that the Brenners were negligent in failing to maintain the sidewalk in a safe condition contrary to city ordinance, failing to keep the sidewalk free of ice *279 contrary to city ordinance, and failing to prevent snow melting from their property to run off and accumulate on the adjacent sidewalk. Plaintiff alleged that the city was negligent in failing to keep the sidewalk free of ice and in failing to determine the unsafe condition of the sidewalk surface and require its repair. The complaint further alleged that both defendants were negligent in failing to warn plaintiff of the hazardous condition of the sidewalk.
The Brenners admitted that they had removed snow from the sidewalk and piled it at the sides such that it was above the level of the sidewalk. It was plaintiff’s theory that the snow melted, flowed back upon the sidewalk and later froze, causing an icy condition.
All defendants moved for summary judgment for failure to state a claim upon which relief could be granted. Summary judgment was entered in favor of the defendants. Plaintiff appeals as of right.
For the purposes of our review, the allegations in the complaint are taken as true and our function is to determine whether plaintiff’s claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover.
Borman’s, Inc v Lake State Development Co,
Whether a passerby walking on a public sidewalk may recover from the city and/or abutting landowner for injuries caused by a fall on an icy sidewalk where the icy condition is caused by the refreezing of previously shoveled snow which melted and accumulated on the sidewalk.
We first consider the potential liability of defendant landowners.
*280
An abutting property owner may not be held liable to pedestrians for injuries sustained by falling on sidewalks made hazardous by natural accumulations of ice and snow, and statutes and ordinances
1
which impose a duty upon landowners to clean sidewalks create no private liability.
Gillen v Martini,
The increased hazard theory relied upon by plaintiff was discussed in
Weider v Goldsmith,
"[I]n Taggart v Bouldin, 111 NJL 464, 468 (168 A 570) [1933], the siiow which had been banked on either side of the sidewalk by defendant’s shoveling, later melted and froze on the walk. In upholding the lower court’s nonsuit of plaintiff the court said:
" 'The action of the defendant, in having the sidewalk shoveled off, introduced no new element of danger; rather the opposite resulted and the danger was lessened. * * * Since this be so, to hold a property owner answerable in damages, for injuries received because an effort is made to keep the sidewalk clear and. to reduce the danger to pedestrians, would result in a hardship and an injustice.’ ” Weider, supra, at 341. 2
As plaintiff points out, there is a split of author *281 ity in other jurisdictions concerning the liability of an abutting landowner to pedestrians injured after the landowner removed snow from the sidewalk. See Annot, 71 ALR2d 793 (1960). We believe the better view to be that expressed by the New Jersey Court in Taggart, supra, and endorsed by our Supreme Court in Weider, supra. We find that the trial court correctly ruled in favor of the defendants Brenner.
We note that neither the instant appeal nor the above cited Michigan authority is effected by the recently decided case of
Quinlivan v The Great Atlantic & Pacific Tea Co, Inc,
As for the liability of the city, the only defect in the sidewalk alleged by plaintiff was the presence of ice. The mere presence of ice and snow will not support an action against the city. Plaintiff must allege some defect in the sidewalk itself. See
Pappas v Bay City,
*282 The grant of summary judgment in favor of the defendant city was proper.
Affirmed.
Notes
As for the effect of the ordinance in the instant case,
see Levendoski v Geisenhaver,
Cf. New Highland Recreation, Inc v Fries,
246 Md 597;
As stated by the Court in Quinlivan at 256-257:
"On this appeal we do not determine the duty owed the user of public streets and sidewalks. Under present Michigan law, liability for failure to keep
public
highways (including sidewalks) 'in condition reasonably safe and fit for travel’ falls principally upon the involved governmental unit and is statutorily defined. MCLA 691.1401,
et seq.;
MSA 3.996(101),
et seq.,
and
Levendoski v Geisenhaver,
Pre-existing case law was overruled by Quinlivan only as it applied the natural accumulation rule to cases involving the liability of a business invitor. Quinlivan, supra, at 260.