WYLLIS J SCHENK V FIRST OF AMERICA BANK MICHIGANAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
WYLLIS J. SCHENK AND JOHN SCHENK,
December 29, 1998
FIRST OF AMERICA BANK - MICHIGAN
NATIONAL ASSOCIATION and SCOTT
KITTRIDGE, Individually and d/b/a SCOTTY LEE’S
LANDSCAPE & LAWN SERVICE,
Oakland Circuit Court
LC No. 96-529838 NO
Before: Holbrook, Jr., P.J., and O’Connell and Whitbeck, JJ.
This is a premises liability action resulting from plaintiff Wyllis Schenk’s1 fall in a parking lot in
icy conditions. Plaintiff brought suit against both First of America as the owner of the premises and the
contractor engaged by First of America to remove snow and ice from the lot. The trial court granted
defendants’ motion for summary disposition pursuant to MCR 2.116(C)(10). Plaintiffs appeal as of
right, and we affirm.
When considering an appeal of an order granting summary disposition under MCR
2.116(C)(10), a reviewing court must examine all relevant documentary evidence in the light most
favorable to the nonmoving party to determine whether a genuine issue of material fact exists on which
reasonable minds could differ. Farm Bureau Mutual Ins Co v Stark, 437 Mich 175, 184-185; 468
NW2d 498 (1991); Shirilla v Detroit, 208 Mich App 434, 437; 528 NW2d 763 (1995). A
defendant’s motion for summary judgment should be granted only where the plaintiff’s claim is so clearly
unenforceable as a matter of law that no factual development could justify allowing the plaintiff to
prevail. Young v Michigan Mutual Ins Co, 139 Mich App 600, 603; 362 NW2d 844 (1984).
Plaintiff argues that the trial court erred in granting First of America’s motion for summary
disposition, arguing that a question of material fact exists concerning whether the icy state of the parking
lot was an open and obvious condition. Plaintiff further asserts that to whatever extent the ice did
constitute an open and obvious condition, that determination relates only to First of America’s duty to
warn, leaving First of America nonetheless liable for its failure to keep its premises reasonably safe.
“To establish a prima facie case of negligence, a plaintiff must prove four elements: (1) a duty
owed by the defendant to the plaintiff; (2) a breach of that duty; (3) causation; and (4) damages.”
Lawrenchuk v Riverside Arena, Inc, 214 Mich App 431, 432; 542 NW2d 612 (1995). “Duty” is a
legally recognized obligation to conform to a particular standard of conduct toward another. Howe v
Detroit Free Press, Inc, 219 Mich App 150, 155; 555 NW2d 738 (1996), summarily aff’d 457 Mich
870 (1998). Whether a duty exists is a question of law for the court. Mason v Royal Dequindre, Inc,
455 Mich 391, 397; 566 NW2d 199 (1997). Where there is no duty, summary disposition is proper.
Eason v Coggins Memorial Christian Methodist Episcopal Church, 210 Mich App 261, 263; 532
NW2d 882 (1995).
The extent of a premises owner’s duty to others on the land depends on the status of the
individual at the time of the injury. Stanley v Town Square Cooperative, 203 Mich App 143, 146;
512 NW2d 51 (1993). An individual upon another’s land may be an invitee, a licensee, or a
trespasser. Id. at 146-147. A licensee is “‘a person who enters on or uses another’s premises with the
express or implied permission of the owner or person in control thereof.’” Alvin v Simpson, 195 Mich
App 418, 420; 491 NW2d 604 (1992), quoting Cox v Hayes, 34 Mich App 527, 532; 192 NW2d
68 (1971). Where an owner acquiesces in the known, customary use of property by the public,
permission may be implied. Cox, supra. Plaintiff characterizes her status at the time she was injured as
that of licensee. Because plaintiff has not suggested that she had the greater status of invitee, and
because defendants have not suggested that plaintiff had the lesser status of trespasser, we will presume
that plaintiff was a licensee for purposes of this appeal.
The trial court granted defendant First of America’s motion for summary disposition because it
was satisfied that plaintiff would be “unable to establish all of the elements necessary for a determination
of liability on the part of the landowner.” We agree.
A landowner is subject to liability for physical harm caused to licensees by a condition on the
(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 v Sleziak, 383 Mich 442, 453; 175 NW2d 759 (1970),
quoting 2 Restatement of Torts, 2d, § 342, p 210.]
A premises owner is under no duty to warn an adult licensee of an open and obvious danger.
See Bertrand v Alan Ford, Inc, 449 Mich 606, 610-611; 537 NW2d 185 (1995). Closely related to
the open-and-obvious-danger doctrine is the natural-accumulation doctrine: A premises owner has no
duty to a licensee 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 Hall v Detroit Bd of Education, 186 Mich App 469, 471; 465 NW2d 12 (1990).
In the instant case, plaintiff testified at her deposition that she was aware of considerable ice on
the lot, including in her chosen pathway to the post office, and of her need to be careful of it. Clearly,
plaintiff knew of the icy condition of the parking lot and should have realized the risk involved in
attempting to walk upon it. The ice on the lot was no hidden danger of which First of America had any
duty to warn plaintiff. Further, although plaintiff asserts, and photographs in the record confirm, that
there were irregularities in the surface of the lot in question that contributed to the spotty development of
patches of ice, plaintiff does not otherwise allege that First of America was in some way responsible for
the existence or extent of the hazards of the natural accumulation of ice. Plaintiff cites no authority for
the proposition that persons responsible for parking lots must design and maintain them as totally level
surfaces in order to take advantage of the natural-accumulation or open-and-obvious defenses.
Although severe irregularities in the surface of a lot may give rise to liability stemming from
accumulations specifically resulting from, or aggravated or hidden by, those irregularities, the extent of
plaintiff’s assertion that the lot in question featured an irregular surface is not sufficient factual support for
her claim to avoid dismissal under MCR 2.116(C)(10).
For these reasons, we agree with the trial court that there is no question that First of America
had no duty to plaintiff to remove the ice upon which she slipped, or to warn plaintiff of its existence.
Next, plaintiff asserts that the trial court erred by granting defendants Scott Kittridge’s and
Scotty Lee’s Landscape & Lawn Service’s motion for summary disposition. We disagree.
The duty that accompanies a service contract is the “common-law duty to perform with
ordinary care the things agreed to be done.” Osman v Summer Green Lawn Care, Inc, 209 Mich
App 703, 707-708; 532 NW2d 186 (1995). Individuals foreseeably injured by the negligent
performance of a contractual undertaking may charge the contractor with breach of a duty of care. Id.
In this case, because there was no duty on the part of the premises owner to remove the natural
accumulation of ice for plaintiff’s benefit, plaintiff cannot maintain an action against the contractor hired
by the premises owner for failing to remove the ice from the premises. Although this Court has
recognized that a snow removal contractor may be held liable for injuries to a third party in certain
situations, see, e.g., Osman, supra (concerning a business invitee), we can find no basis for holding the
contractor liable in this case. Although plaintiff asserts that she was injured as a third-party beneficiary
of the contract between First of America and Kittridge/Scotty Lee’s, the latter maintain that the contract
did not call for any service on the day that plaintiff fell, and plaintiff points to no specific provision of the
contract that was breached. “When a motion under subrule (C)(10) is made and supported . . . , an
adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by
affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine
issue for trial.” MCR 2.116(G)(4). Further, there is no dispute that Kittridge/Scotty Lee’s took no
action to remove the ice upon which plaintiff slipped, and did not alter the conditions of the parking lot
so as to increase the hazards of winter accumulations. The record thus indicates a lack of evidentiary
support for plaintiff’s claims that Kittridge/Scotty Lee’s breached the snow-removal contract, or that
Kittridge/Scotty Lee’s acted, or failed to act, in a way that constituted negligence.
/s/ Donald E. Holbrook, Jr.
/s/ Peter D. O’Connell
/s/ William C. Whitbeck
John Schenk, Wyllis Schenk’s husband, asserted a claim against defendants, alleging that their
negligence caused him to lose his wife’s society, services, love, affection, companionship, comfort and
consortium. For ease of reference, in this opinion the term “plaintiff” will refer exclusively to Wyllis