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11/25/75 QUINLIVAN v. GREAT ATLANTIC & PACIFIC TEA

November 25, 1975

QUINLIVAN
v.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC



J. W. Fitzgerald, J. T. G. Kavanagh, C. J., and Williams, Levin, Coleman, and Lindemer, JJ., concurred with Fitzgerald, J.

SYLLABUS BY THE COURT

1. Negligence -- Business Invitees -- Parking Lots -- Snow and Ice.

A supermarket, as proprietor of a business, owed a duty to a business invitee to use reasonable care to protect the invitee against hazards arising from the natural accumulation of ice and snow.

2. Negligence -- Business Invitees -- Snow and Ice -- Overruled Cases.

Existing case law is overruled to the extent that it indicates, and has been interpreted to indicate, that no duty is owed to a business invitee respecting hazards arising from natural accumulations of ice and snow.

3. Indemnity -- Summary Judgment -- Landlord and Tenant -- Business Invitees -- Snow and Ice -- Leases.

Summary judgment of indemnification in favor of a tenant was rendered properly against the landlord where a business invitee slipped and fell on a snow-covered and icy parking lot adjacent to the tenant's store and, under the lease, the landlord undertook responsibility for removal of ice and snow hazard in the parking lot; the lease placed the requisite control and possession in the landlord to give rise to a duty to make safe the area of the parking lot against hazards from ice and snow accumulation.

4. Negligence -- Possessors of Land -- Business Invitees.

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land, if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.

5. Negligence -- Business Invitees -- Snow and Ice.

An invitor has a duty to business invitees to exercise reasonable care to diminish the hazards of ice and snow accumulation which requires that reasonable measures be taken within a reasonable time after an accumulation of ice and snow to diminish the hazard of injury to the invitee; the notion that ice and snow hazards are obvious to all and therefore may not give rise to liability is rejected.

6. Indemnity -- Contracts -- Lease -- Landlord and Tenant -- Snow and Ice.

Although no express contract of indemnification is in a lease, a right to indemnification may be said to arise if the lease provisions establish that the landlord assumed a duty to make safe the area of a parking lot against hazards from ice and snow accumulation.

The opinion of the court was delivered by: Fitzgerald

Larry E. Quinlivan and Lois Quinlivan brought an action against The Great Atlantic & Pacific Tea Company, Inc., and Clarence Jahn and Dorthea Jahn for injuries sustained when Larry Quinlivan fell on the snow-covered and icy parking lot of a shopping center owned by defendants Jahn in which defendant A & P maintained its store. A & P cross-claimed for indemnification against defendants Jahn under the lease. Prior to trial, the Wayne Circuit Court, Neal E. Fitzgerald, J., entered a summary judgment of indemnification in favor of defendant A & P on the cross-claim. At a trial before the Wayne Circuit Court, Charles S. Farmer, J., the jury awarded plaintiffs a verdict of $160,000 against defendant A & P and found no cause of action as to defendants Jahn. The Court of Appeals, V. J. Brennan, P. J., and Quinn and Carland, JJ., reversed as to defendant A & P (Docket Nos. 15605, 16066). Plaintiffs appeal. Held:

1. An invitor owes a legal duty to an invitee to take reasonable measures within a reasonable time after an accumulation of ice and snow to diminish the hazard of injury to the invitee. The conduct of the invitee will often be relevant to contributory negligence.

2. An invitor in general owes the legal duty to an invitee to exercise reasonable care for the invitee's safety, but existing case law appears to have made an exception to the general rule with respect to natural accumulations of ice and snow, so that as to natural accumulations the invitor owes no duty. Pre-existing case law, to the extent that it indicates that the natural accumulation rule applies to the invitor-invitee relationship, is overruled.

3. In the instant case, A & P, as proprietor of a business, owed a duty to plaintiff to use reasonable care to protect against hazards arising from natural accumulation of ice and snow. The jury were given conflicting instructions indicating both the rigorous duty owed plaintiff as an invitee and the "natural accumulation" exception. The jury, in returning a verdict for plaintiff, must have recognized that the exception did not circumvent the duty owed plaintiff as an invitee. The jury could permissibly have determined from the evidence that A & P's failure to exercise reasonable care caused plaintiff's injuries.

4. The summary judgment of indemnification against defendants Jahn in accordance with the terms of the lease between defendant A & P and the Jahns was proper. The governing principle is that when a person has become liable with another for harm caused to a third person because of his negligent failure to make safe a dangerous condition which, as between the two, it was the other's duty to make safe, he is entitled to restitution from the other for expenditures properly made in the discharge of liability, unless after discovery of the danger he acquiesced in the continuation of the condition. Under the lease between A & P and defendants Jahn, the Jahns were to assume responsibility for providing ice and snow removal on the parking lot. Thus under the lease the Jahns were given the necessary control and possession to give rise to a duty on their part to make the parking lot safe against hazards from ice and snow accumulation.

5. The judgments below are reinstated.

51 Mich App 242; 214 NW2d 911 (1974) reversed.

Plaintiffs *fn1 brought suit against defendant A & P and defendants Jahn for injuries sustained in the fall on the parking lot of a shopping center owned by defendants Jahn in which defendant A & P maintained its store. A & P filed a cross-complaint against the Jahns as lessors of the A & P premises on the basis that the Jahns were under a duty to indemnify A & P pursuant to the terms of the lease between the parties.

Evidence submitted at trial by plaintiffs indicated that on the evening of January 30, 1967, Larry Quinlivan parked his automobile in the parking lot adjacent to the A & P store intending to buy some milk and bread at the A & P. The parking lot was snow-covered and icy, although snow had not fallen for several days. After departing his automobile, plaintiff took several steps in the direction of the A & P store and then felt his feet fly out from under him. He landed on his hip area and shortly thereafter was transported to the hospital by ambulance. Subsequent to the accident, Larry Quinlivan was operated upon several times. As a result of these events he suffered physical and mental disablement with attendant disintegrating effect upon his employment capability and family life.

Plaintiffs allege that defendants negligently permitted a dangerous icy condition to exist in the parking lot area. Such negligence, it was urged, caused plaintiff's injuries. Prior to trial, the trial court entered a summary judgment of indemnification in favor of defendant A & P against defendants Jahn. The jury ultimately awarded plaintiffs a verdict of $160,000 *fn2 against defendant A & P, finding no cause of action as to defendants Jahn. The Court of Appeals reversed the jury award against defendant A & P, relying upon Weider v Goldsmith, 353 Mich 339; 91 NW2d 283 (1958). The Court of Appeals resolution rendered Discussion of the indemnification issue unnecessary.

We conclude that A & P, as proprietor of a business, owed a duty to Larry Quinlivan to use reasonable care to protect against hazards arising from natural accumulation of ice and snow. We overrule existing case law to the extent that it indicates, and has been interpreted to indicate, that no duty is owed the invitee respecting hazards arising from natural accumulations of ice and snow. The jury verdict against defendant A & P was rendered properly. We further conclude that summary judgment of indemnification was rendered properly against defendants Jahn in accordance with the terms of the lease between defendant A & P and the Jahns. The Court of Appeals is reversed and the judgments below are reinstated.

I -- Standard of Care Owed an Invitee vis-a-vis Natural Accumulations of Ice and Snow.

At trial, both defendant A & P and defendants Jahn conceded that they owed some duty to exercise reasonable care to Larry Quinlivan as an invitee on the shopping center premises. The precise nature of the duty owed plaintiff and the relationship of such duty to the alleged injury-causing condition of the parking lot was not specified on the record.

The trial court gave jury instructions which read in part as follows:

"I charge you, members of the jury, that the defendants, the Great Atlantic & Pacific Tea Company, and the Jahns, owed to the plaintiff the duty to be reasonably sure they were not inviting him into a place of danger, and to that end they must exercise ordinary care and prudence to render the parking lot premises reasonably safe for plaintiff's visit.

"I further charge you, members of the jury, that while the A & P is not an insurer of safety of an invitee, if the A & P Company knows, or reasonably should know of a dangerous condition on its premises, it may become liable for injuries resulting therefrom, and it may ...


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