ROBERT NICHOLS V LINDA BALL
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STATE OF MICHIGAN
COURT OF APPEALS
ROBERT NICHOLS,
UNPUBLISHED
February 22, 2000
Plaintiff-Appellant,
v
No. 210859
Oakland Circuit Court
LC No. 96-517162-NO
LINDA BALL,
Defendant-Appellee.
Before: Cavanagh, P.J., and Holbrook, Jr., and Kelly, JJ.
PER CURIAM.
In this slip and fall case, plaintiff appeals as of right from the trial court’s order granting
defendant’s motion for summary disposition pursuant to MCR 2.116(C)(10). We affirm.
On appeal, an order granting or denying summary disposition is reviewed de novo. In reviewing
a motion for summary disposition brought under MCR 2.116(C)(10), a trial court considers affidavits,
admissions, and documentary evidence filed in the action or submitted by the parties in the light most
favorable to the party opposing the motion. A trial court may grant a motion for summary disposition
under MCR 2.116(C)(10) if the evidence shows that there is no genuine issue in respect to any material
fact, and the moving party is entitled to judgment as a matter of law. Smith v Globe Life Ins Co, 460
Mich 446, 454-455; 597 NW2d 28 (1999).
The trial court ruled that defendant owed no duty to plaintiff to remove or warn him of the
naturally accumulated ice and snow on the concrete stones alongside the walk outside defendant’s
residence. On appeal, plaintiff argues that the trial court erred in granting defendant’s motion for
summary disposition because there were genuine issues of material fact as to whether defendant
breached the duty owed by her to plaintiff. The parties agree that plaintiff had the status of a licensee.
We conclude that, under the current state of the law, the “natural accumulation doctrine” does
not bar plaintiff’s claim. Nonetheless, we affirm because the trial court reached the right result, albeit for
the wrong reason. See Yerkovich v AAA, 231 Mich App 54, 68; 585 NW2d 318 (1998), lv gtd 461
Mich 873 (1999). Assuming for the purposes of this opinion that defendant was in possession of the
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area on which plaintiff slipped and fell, defendant was still entitled to summary disposition of plaintiff’s
claim.1
This Court recently clarified the proper scope of the natural accumulation doctrine. The natural
accumulation doctrine was meant to shield possessors from liability with regard to the natural
accumulation of snow and ice on public sidewalks which abutted private property, not with regard to
injuries that occurred on private property. Altairi v Alhaj, 235 Mich App 626, 630-638; 599 NW2d
537 (1999). The Altairi Court explained, “Ordinarily, a possessor owes at least a marginal duty of
care to his licensees.” Id. at 634, citing Preston v Sleziak, 383 Mich 442, 453; 175 NW2d 759
(1970). In Preston, the Supreme Court adopted 2 Restatement Torts, 2d, § 342, as the best
expression of a property owner’s duty to a licensee:
A possessor of land is subject to liability for physical harm caused to licensees
by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the condition and should
realize that it involves an unreasonable risk of harm to such licensees, and should expect
that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn
the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the
risk involved. [Preston, supra at 451-453, quoting 2 Restatement Torts, 2d, § 342,
p 210.]
Applying the above, the Altairi Court concluded that “the natural accumulation doctrine does
not apply to the licensor-licensee context where the injury occurred on the possessor’s private
property.” Id. at 638. Thus, assuming that plaintiff’s injury occurred on private property possessed by
defendant, in light of Altairi we conclude that defendant was not entitled to summary disposition on the
basis of the natural accumulation doctrine.2
However, under the Restatement formulation of a landowner’s duty to a licensee, a possessor
of land can only be liable for dangers of which she knew or had reason to know; she has no obligation
to inspect the land to protect a licensee from unknown dangers. D’Ambrosio v McCready, 225 Mich
App 90, 95-96; 570 NW2d 797 (1997). Any danger that is not obvious is not likely to be known to
the landowner. Altairi, supra at 639.
The nature of any hazard arising from naturally occurring snow and ice is usually readily
apparent. However, where ice is covered by a layer of snow, hiding it from casual inspection, the ice
may present a hidden danger. See id. A landowner’s duty to a licensee is only to warn of any hidden
dangers she knows or has reason to know of, if the licensee does not know or has no reason to know
of the dangers involved. Wymer v Holmes, 429 Mich 66, 77, n 1; 412 NW2d 213 (1987). Here,
plaintiff presented no evidence to indicate that defendant actually knew or had reason to know that there
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was ice under the light dusting of snow on the concrete stones. There is nothing in the record to indicate
that defendant saw ice on the concrete stones prior to plaintiff’s accident or that there was any reason
for her to know that there was ice under the snow.
Moreover, even if defendant had known that the concrete stones were covered with snow and
ice, there is nothing to indicate that it was foreseeable that plaintiff would walk on them. Defendant
testified at her deposition that she viewed the stones as part of the landscaping and had never seen
anyone walk on them. Under the circumstances, plaintiff has failed to show that defendant knew or
should have known that the concrete stones presented an unreasonable risk of harm to plaintiff. See
Restatement, § 342(a).
Plaintiff’s claim that defendant had a duty to provide lighting in the area where plaintiff fell and
breached that duty also must fail.3 Although the parties dispute whether defendant’s porch light was on
at the time of plaintiff’s fall, defendant stated that, even if the porch light had been on, it would not have
illuminated the area where plaintiff’s accident occurred. Plaintiff testified at his deposition that before his
accident he noticed that it was “very dark” outside. Therefore, whether the porch light was on or off is
immaterial because plaintiff was aware of the hazard posed by the darkness.4 See Wymer, supra.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Donald E. Holbrook, Jr.
/s/ Michael J. Kelly
1
The parties dispute whether defendant, as the tenant of the upper flat, had possession of the concrete
stones on which plaintiff slipped and fell. Defendant’s lease required her to obtain written permission
from the landlord before making any changes to the landscaping; it is undisputed that defendant never
obtained such permission. However, we need not decide whether defendant was in possession of the
area in order to resolve this case.
2
We note that the trial court did not have the benefit of this Court’s decision in Altairi when it ruled in
the instant matter.
3
Plaintiff has supplied the affidavit of his expert, Steven Ziemba, who has averred that defendant had
the duty to provide adequate lighting in the area and to inspect the concrete stones for the presence of
snow and ice. However, whether a defendant owes any duty to a plaintiff to avoid negligent conduct in
a particular circumstance is a question of law. Hughes v PMG Building, Inc, 227 Mich App 1, 5; 574
NW2d 691 (1997). The duty to interpret and apply the law has been allocated to the courts, not to the
parties’ expert witnesses. Hottmann v Hottmann, 226 Mich App 171, 179; 572 NW2d 259 (1997).
4
Plaintiff relies on Knight v Gulf & Western Properties, Inc, 196 Mich App 119; 492 NW2d 761
(1992). However, in Knight, the plaintiff was an invitee, rather than a licensee, and so was owed a
higher standard of care. Moreover, the salient defect in Knight was the existence of an unexpected
drop-off that was virtually undetectable in the defendant’s unlit warehouse. “The fact that defendant’s
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vacant warehouse was not adequately lit was both obvious and known to plaintiff . . . . Certainly there
was no need to warn plaintiff of the dark.” Id. at 127.
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