ALICE HALE V KENNETH GRIMM
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STATE OF MICHIGAN
COURT OF APPEALS
ALICE HALE,
UNPUBLISHED
December 26, 2000
Plaintiff-Appellant,
v
No. 215801
Oakland Circuit Court
LC No. 97-001196-NO
KENNETH GRIMM,
Defendant-Appellee.
Before: Griffin, P.J., and Holbrook, Jr., and Murphy, JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting defendant’s motion for summary disposition
pursuant to MCR 2.116 (C)(10). We affirm.
Plaintiff filed suit against defendant, her ex-husband, to recover for personal injuries
under a negligence theory. Plaintiff had made her weekly Sunday visit at defendant's home,
where she spent the day with him. When plaintiff was leaving for work early the next morning,
she slipped and fell on black ice that had accumulated in defendant’s driveway and suffered a
broken wrist. Dismissing plaintiff’s claim, the trial court granted defendant’s motion for
summary disposition holding first that defendant owed no duty to plaintiff, as a licensee, to salt
the naturally accumulated ice on the driveway of defendant’s home, and second that defendant
had not voluntarily assumed the duty to salt where a duty did not otherwise exist. While we do
not agree that the natural accumulation doctrine bars plaintiff’s claim, we affirm the trial court’s
order on other grounds.
On appeal, plaintiff contends that the trial court erred in granting summary disposition
pursuant to MCR 2.116(C)(10) because plaintiff was an invitee on defendant’s property at the
time of her injury. We disagree. Appellate review of the grant or denial of a motion for
summary disposition is de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572
NW2d 201 (1998). This Court must determine whether any genuine issue of material fact exists
in order to prevent entering a judgment for the moving party as a matter of law. Morales v AutoOwners Ins, 458 Mich 288, 294; 582 NW2d 776 (1998). We review the entire record in favor of
the party opposing the motion, and grant the benefit of any reasonable doubt to the opposing
party. Id.
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“To establish a prima facie case of negligence, the plaintiff must prove: (1) that the
defendant owed a duty to the plaintiff; (2) that the defendant breached the duty; (3) that the
defendant’s breach of duty was a proximate cause of the plaintiff’s damages; and (4) that the
plaintiff suffered damages.” Babula v Robertson, 212 Mich App 45, 48; 536 NW2d 834 (1995).
Plaintiff argues that the trial court erred in granting summary disposition when it determined that
plaintiff’s status on defendant’s property at the time of her injury was that of a licensee to whom
no duty was owed to remove the ice from the driveway.
We first note that the reliance by defendant and the trial court on the natural accumulation
doctrine as a bar to plaintiff’s claim was misplaced. The natural accumulation doctrine has
recently been held not to apply to the licensor-licensee context where the injury occurred on the
possessor’s private property and a trial court’s grant of summary disposition on that basis is
improper. Altairi v Alhaj, 235 Mich App 626, 638; 599 NW2d 537 (1999). Altairi clarified the
scope of the natural accumulation doctrine. The Altairi Court indicated that the natural
accumulation doctrine was never meant to apply to injuries on private property because used in
such circumstances it would abrogate a private possessor’s duty to licensees on his property. Id.
at 629. Rather, “[c]ourts have consistently applied the doctrine to shield private possessors from
liability stemming from the natural accumulation from ice and snow on public sidewalks that
abut their property.” Id. Accordingly, instead of analyzing plaintiff’s claim under the natural
accumulation doctrine, we will apply the common law duties for landowners provided by
premises liability law.
The first issue to be resolved is whether plaintiff was properly classified as a licensee. A
landowner’s duty to a visitor depends on that visitor’s status. Stitt v Holland Abundant Life
Fellowship, 462 Mich 591, 596; 614 NW2d 88 (2000). Even though a social guest is invited, she
stands in the legal relationship to her host of a licensee. Leveque v Leveque, 41 Mich App 127,
129-130; 199 NW2d 675 (1972). Meanwhile, invitee status is typically afforded persons entering
upon the property of another for a purpose connected with a business, or to confer a business,
commercial, monetary, or other tangible benefit to the occupant. Id. at 130.
In the present case, plaintiff argues that she was an invitee on defendant’s property
because she did defendant’s laundry and housework, from which defendant received a benefit.
However, whether a social guest who renders a benefit should be classified as a licensee or an
invitee is sometimes difficult to determine. A family member or personal friend rendering help
in household tasks to another does not cease to be a licensee unless the circumstances of the
assistance make it clearly the dominant aspect of the relationship rather than a routine incident of
a social activity. Id. at 131. “The critical factor involved is to determine whether the benefit
conferred is the dominant aspect of the visit, or, alternatively, is the 'routine incident of social or
group activities'.” Id.
In most instances the determination of whether a social guest who renders assistance to
the occupant of the premise is deemed an invitee or a licensee will be a question of fact. Id. In
this case, however, the trial court was justified in concluding that the only inference to be drawn
from the uncontradicted facts presented was that the predominant purpose of plaintiff’s visit was
social, and that the housework services rendered were merely incidental to such purpose. Id.
Plaintiff and defendant had remained friends during the ten years since their divorce, with
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plaintiff visiting defendant every weekend for the two years prior to this incident. On the day of
the accident plaintiff spent all day with defendant. In the evening they had dinner together,
watched television and went to bed. During the day plaintiff did their laundry and cleaned up the
house a little bit, something she always did during her visits at defendant’s home. However,
plaintiff’s act of doing defendant's laundry and housework was neither the dominant aspect of
their relationship nor the dominant aspect of this particular visit. Any benefit conferred to
defendant was incidental to the dominant social purpose of plaintiff’s visit. The trial court
correctly held that that plaintiff was a licensee on defendant’s property at the time of her injury.
Because plaintiff enjoyed the status of a licensee on defendant’s property at the time she
was injured, and because we hold that as a licensee plaintiff’s claim is not barred by the natural
accumulation doctrine, defendant still owed plaintiff a marginal duty of care. See Altairi, supra
at 634. We conclude, however, there was no breach of that duty because plaintiff has failed to
establish that there was a genuine issue of fact regarding whether defendant knew or had reason
to know that there was ice on the driveway.
As a licensor, defendant could only be liable for dangers he knew or had reason to know
of, if the licensee did not know or have reason to know of the dangers involved. Stitt, supra at
596. Defendant had no obligation to inspect the driveway to protect plaintiff, a licensee, from
unknown dangers. D’Ambrosio v McCready, 225 Mich App 90, 94-96; 570 NW2d 797 (1997).
Knowledge implies not only knowledge of the dangerous condition, but also that the chance of
harm and the gravity of the threatened harm are appreciated. Altairi, supra at 639. However, a
landowner owes no duty if the danger is open and obvious. Thus, the landowner must know of
the danger or have reason to know, while at the same time the danger cannot be open an obvious.
As a result of such a narrow class of risks, “[a]ny danger that is not obvious is not likely to be
known to the landowner.” Id.
Plaintiff claimed that she fell on black ice in defendant’s driveway that accumulated as a
result of icy weather conditions. The proper inquiry is whether defendant knew or had reason to
know of this dangerous condition. Plaintiff has offered no evidence that defendant actually saw
the ice on the driveway, or used the driveway prior to plaintiff’s injury. From the record, it
appears that defendant was asleep in bed at the time the ice formed on the driveway and did not
become aware of the black ice until after plaintiff fell. On the basis of the evidence presented,
there is no genuine issue of material fact that defendant breached any duty owed to plaintiff as a
licensee. Therefore, the trial court did not err in granting defendant’s motion for summary
disposition and we affirm the trial court’s order, though on different grounds than those
articulated by the trial court. See Anderson v Wiegand, 223 Mich App 549, 556; 567 NW2d 452
(1997).
Plaintiff additionally contends that the trial court erred in granting summary disposition
pursuant to MCR 2.116(C)(10) because defendant voluntarily assumed the duty to salt and
breached that duty when he failed to do so. We again disagree.
A party may be under a legal duty when it voluntarily assumes a function it is not legally
required to perform. Zychowski v A J Marshall Co, Inc, 233 Mich App 229, 231; 590 NW2d 301
(1998). Once that duty is voluntarily assumed, it must be performed with some degree of skill
and care; the party cannot omit to do what an ordinarily prudent person would do in
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accomplishing the task. Id.; see also Babula, supra at 51. In this case, plaintiff claims that
defendant assumed the duty to salt when, after hearing a weather report, he made the statement,
“I should probably salt,” and then got up and left the room. However, the record reflects that
defendant did not salt or even attempt to salt the driveway before plaintiff’s injury. Instead, it
appears that defendant went to bed after making the comment. Zychowski holds that some
affirmative action on the part of the defendant needs to be found before a party can be said to
have voluntarily assumed a duty. Zychowski, supra at 231-232. In the present case, in the
absence of any affirmative conduct by defendant to salt the driveway, defendant was under no
legal duty to salt where such a duty did not otherwise exist under the law.
Affirmed.
/s/ Richard Allen Griffin
/s/ Donald E. Holbrook, Jr.
/s/ William B. Murphy
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