Altairi v. Alhaj

O’Connell, J.

(concurring in part and dissenting in part). I agree with the majority that the trial court properly granted defendant’s motion for summary disposition, and I concur in the reasoning and result the majority reaches in part n of its opinion. I respectfully part from the majority, however, in that where the majority declares that the trial court erred in finding the natural accumulation doctrine applicable to a licensee on private property and chooses instead to affirm the court’s decision by recourse to general principles of liability, I would affirm the learned trial judge’s application of the natural accumulation doctrine.

As the majority states, a possessor of land may be liable for injury suffered by a licensee as the result of a condition on the property if the possessor knows, or should know, of the condition, should expect the licensee not to discover the danger, and fails to make reasonable efforts to warn of, or otherwise obviate, the danger. See Preston v Sleziak, 383 Mich 442, 453; 175 NW2d 759 (1970), citing 2 Restatement Torts, 2d, § 342, p 210. However, “[a]ttempts by a social guest to recover against his host for injuries allegedly caused by slipping on ice or snow which had been allowed to accumulate upon the approaches to the host’s premises have been uniformly unsuccessful.” 25 ALR2d 598, § 5, p 608. Recognition of this historical *642limitation on liability has engendered this state’s natural accumulation doctrine, which provides that “ ‘neither a municipality nor a landowner has an obligation to a licensee to remove the natural accumulation of ice or snow from any location, except where the municipality or property owner, by taking affirmative action, has increased the travel hazard to the public.’ ” Anderson v Wiegand, 223 Mich App 549, 555, n 2; 567 NW2d 452 (1997), quoting Morrow v Boldt, 203 Mich App 324, 327; 512 NW2d 83 (1994). I believe that this rule remains a sound principle of law, comporting with and flowing from the general principles on which the majority relies. Further, I am concerned that the majority appears to overrule or disregard several cases that recognize the traditional doctrine.

Until 1975, the natural accumulation doctrine applied to all locations regardless of the status of the injured person. Taylor v Saxton, 133 Mich App 302, 305; 349 NW2d 165 (1984), citing Weider v Goldsmith, 353 Mich 339; 91 NW2d 283 (1958); Bard v Weathervane of Michigan, 51 Mich App 329; 214 NW2d 709 (1974); Gillen v Martini, 31 Mich App 685; 188 NW2d 43 (1971). However, in 1975 the Michigan Supreme Court announced that “[t]o the extent preexisting case law authority indicated that the natural accumulation rule applied in an invitor-invitee context, that authority is overruled.” Quinlivan v Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244, 260; 235 NW2d 732 (1975). The Court thus expressly abrogated the natural accumulation doctrine only with regard to the invitor-invitee relationship, and the appellate courts of this state have otherwise contin*643ued to recognize and respect the doctrine. E.g., Anderson, supra at 555, n 2; Morrow, supra at 327; Zielinski v Szokola, 167 Mich App 611, 615; 423 NW2d 289 (1988), overruled in part on other grounds by Robinson v Detroit (On Remand), 231 Mich App 361; 586 NW2d 116 (1998); Taylor, supra at 305-306.1

Until today, the natural accumulation doctrine applied equally to public and private entities. In Mendyk v Michigan Employment Security Comm, 94 Mich App 425; 288 NW2d 643 (1979), this Court observed that “[historically, the ‘natural accumulation’ rule has been used not only to preclude a plaintiff’s recovery against a governmental unit but also to preclude recovery in a suit against a private land owner.” Id. at 430 (emphasis added), citing Bard, supra, and Gillen, supra. In Hall v Detroit Bd of Ed, 186 Mich App 469; 465 NW2d 12 (1990), this Court stated that the “natural accumulation doctrine provides that neither a municipality nor a landowner has a duty to a licensee to remove the natural accumulation of ice and snow from any location.” Id. at 471 (emphases added), citing Zielinski, supra at 615. See also Anderson, supra; Morrow, supra.

The majority minimizes the significance of the language affording to the natural accumulation doctrine a broad scope concerning licensees in Anderson, Morrow, Hall, Zielinski, Taylor, and Mendyk, and then proceeds to discard the doctrine for licensees on *644private property.2 However, the majority wryly acknowledges that “[i]t is difficult to imagine, under the Restatement formulation of a landowner’s duty to a licensee, the actual circumstances in which a possessor would be liable to his licensee for a slip and fall because of naturally accumulated ice and snow.” Ante at 638. My fear is that social guests who slip on icy passageways will now muster a great deal of imagination in attempting to recover under general principles of liability, now that the specific limitation of the natural accumulation doctrine is not available as a defense for social hosts. It would be better for this state’s jurisprudence if there remained a specific rule standing for the proposition that a social host is not responsible for the dangers inherent in ordinary winter precipitation.3 In fact, the majority, in discarding for licensees the natural accumulation doctrine while trumpeting the Restatement formulation, appears to be making a distinction without a difference. It is difficult to envision a factual setting under which the two approaches would yield different results. Indeed, if this case sounds the death knell for the traditional natural accumulation doctrine as con*645cems licensees, conscientious adherence to the general principles that the majority espouses in its place should lead to the rediscovery of the traditional rule. In any event, if this Court is ever faced with a factual setting under which the natural accumulation doctrine would bar recovery but the general Restatement principles would not, that would be the time to reconsider this state’s traditional rule. Because the present case does not present this need, I do not feel comfortable using it to discard the historical doctrine. For these reasons, I respectfully decline to join part I of the majority opinion.

The majority contends that it is not disturbing existing case law concerning the natural accumulation doctrine. I respectfully disagree. As these cases indicate, the natural accumulation doctrine historically applied to both private and municipal property, and after today it applies only to municipal property. Although the majority purports only to clarify the scope of the rule, I conclude that the majority is in fact affecting a substantial revision.

The majority says that it is only distinguishing, not overruling, these cases in concluding that the natural accumulation doctrine applies only to public, not private property. Although it is true that these cases all happen to concern property that is best characterized as public, it is also true that the plain language (words) of these cases announces clearly that the doctrine, as applied to licensees, is fully applicable to private property.

“Must an Eskimo warn a departing guest that he might slip on the ice on his way from the igloo to his dogsled? Must a . . . homeowner warn a . . . houseguest upon departure that, since it has snowed, the steps or walk will likely be slippery?” Flintrop v Lefco, 52 Wis 2d 244, 251; 190 NW2d 140 (1971) (R. W. Hansen, J., dissenting). Indeed, without the security of the precise rule of the natural accumulation doctrine, a homeowner may now “need insurance coverage to protect against his failing to warn a departing guest that... if it snows, it may be slippery.” Id. at 254.