DENISE SCOTT V WINDJAMMERS BAR INC
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STATE OF MICHIGAN
COURT OF APPEALS
DENISE SCOTT,
UNPUBLISHED
April 21, 1998
Plaintiff-Appellant,
v
No. 201048
Wayne Circuit Court
LC No. 96-614842 NO
WINDJAMMERS BAR & GRILL, INC., and
CONSUMERS POWER COMPANY,
Defendants-Appellees,
and
LEO BURTON,
Defendant.
Before: Gribbs, P.J., and Cavanagh and Saad, JJ.
PER CURIAM.
In this premises liability, slip and fall case, plaintiff appeals as of right from the circuit court’s
orders granting summary disposition to defendants. We affirm.
I
FACTS AND PROCEEDINGS
On the evening of February 3, 1996, plaintiff visited Jammers II (a bar/restaurant), and parked
her car in the adjoining parking lot of defendant Consumers Power (Consumers). Plaintiff admitted that
she was aware of a sign in Consumers’ lot stating that the lot was exclusively for use of Consumers’
employees, but that she nonetheless regularly parked in Consumers’ lot when visiting Jammers II. As
plaintiff was returning to her car, she slipped and fell on a patch of ice in Consumers’ lot. Plaintiff
brought suit, alleging that defendants expressly or impliedly invited patrons of Jammers II to use
Consumers’ lot, and that defendants were thus responsible for the ice on which plaintiff fell. The trial
court granted summary disposition as to both defendants; plaintiff appeals.
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Plaintiff argues that factual questions remain regarding the existence and extent of each
defendant’s duty to plaintiff when she was injured, and that summary disposition was thus inappropriate.
We disagree.
II
ANALYSIS
A. Consumers
As to defendant Consumers, plaintiff argues that Consumers knew that its lot was regularly used
by patrons of Jammers II, and acquiesced in that usage to the extent that plaintiff was at least a known
trespasser, and perhaps a licensee1 of Consumers. Plaintiff presents evidence that Jammers II had
asked Consumers for a license to let the patrons of Jammers II onto Consumers’ lot, that two
employees of Consumers left their cars in Consumers’ lot when patronizing Jammers II, and that various
patrons of Jammers II besides plaintiff routinely parked at Consumers.
That Jammers II asked Consumers for a license to allow patrons to use Consumers premises
may be evidence that Consumers knew that Jammers II customers wanted to park at Consumers, but
because Consumers refused the request, it does not imply that Consumers acquiesced in their doing so.
Nor could evidence that Consumers’ employees parked in Consumers’ lot when going to Jammers II
establish Consumers’ acquiescence in patrons from Jammers II using Consumers’ lot. Similarly,
plaintiff’s evidence that other patrons of Jammers II regularly used Consumers’ lot does not indicate that
Consumers acquiesced in the practice. This absence of evidence, coupled with Consumers’ sign
announcing that its lot was exclusively for use of its own employees precludes the “implication” that
Consumers actively acquiesced in having Jammers II patrons in its parking lot. Thus, plaintiff’s evidence
could support a finding of no status greater than that of known trespasser.
A landowner has no duty to a licensee or known trespasser to remove a natural accumulation of
ice and snow from any location, unless the landowner has taken affirmative actions that caused, or
increased the hazards of, the natural accumulation. See Zielinski v Szokola, 167 Mich App 611, 615;
423 NW2d 289 (1988). Although plaintiff complained that defendants negligently and carelessly
altered the natural accumulation of ice and snow, plaintiff alleges no specific conduct on Consumers’
part to refute the obvious conclusion that any ice on Consumers’ parking lot was simply a natural winter
accumulation. Thus, plaintiff’s failure to offer evidence that defendants had negligently increased the
hazards of the natural accumulation is fatal to her claim against Consumers. For these reasons, the
circuit court correctly ruled that plaintiff was a trespasser upon the premises of Consumers, and that
Consumers accordingly breached no duty to her.
B. Windjammers
As to defendant Windjammers, plaintiff argues that Jammers II impliedly invited its customers to
use Consumers’ parking lot, or at least knew that its customers did so, and therefore that
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Windjammers’ duty to its invitees extended to protecting them from hazardous conditions on
Consumers’ lot. Again, in light of the record, we disagree.
Plaintiff’s evidence fails to support a finding that Jammers II invited its patrons to use the
neighboring lot; at most, Jammers II was aware that some of its customers used Consumers’ lot.
However, plaintiff fails to cite authority for its belief that a proprietor is obliged to warn its invitees of
dangerous conditions existing on nearby private property over which the proprietor has no control and
upon which the customers have no right to tread.
The cases upon which plaintiff does rely do not help her. For example, in Upthegrove v
Myers, 99 Mich App 776; 299 NW2d 29 (1980), the key issue was whether a hotel was responsible
to passersby for the behavior of people on its premises. In Berman v LaRose, 16 Mich App 55; 167
NW2d 471 (1969), the Court held that a property owner may be liable for injuries sustained on an
abutting parking lot if the owner “had a servitude for his private benefit in the parking area.” Id. at 59.
However, in order for Berman to assist plaintiff, not only must Windjammers have had a servitude in
Consumers’ lot, but that servitude, “by a physical intrusion . . . or otherwise,” must have “affected the
area’s safety and thus imposed a duty on defendant to maintain the area in a reasonably safe condition.”
Id. No such evidence exists here. Accordingly, the circuit court correctly ruled that Windjammers had
no duty to plaintiff concerning the conditions on Consumers’ parking lot.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Henry William Saad
I concur in result only
/s/ Roman S. Gribbs
1
A licensee is one who “enters on or uses another’s premises with the express or implied permission of
the owner or person in control thereof. Permission may be implied where the owner acquiesces in the
known, customary use of property by the public.” Alvin v Simpson, 195 Mich App 418, 420; 491
NW2d 604 (1992).
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