Van Deusen v. FOUNTAINVIEW TERRACES, INC.

69 Mich. App. 199 (1976) 244 N.W.2d 411 VAN DEUSEN v. FOUNTAINVIEW TERRACES, INC. Docket No. 23071. Michigan Court of Appeals. Decided May 27, 1976. Stavoe & Deegan, for plaintiff. Alexander, Buchanan & Seavitt (by Floyd S. Westcott), for defendant Fountainview Terraces, Inc. Eggenberger, Eggenberger, McKinney & Weber, for Tri-County Sanitation Services, Inc. *201 Before: BASHARA, P.J., and R.B. BURNS and QUINN, JJ. Leave to appeal denied, 397 Mich 843. R.B. BURNS, J. Plaintiff was injured in a fall while attempting to deposit her garbage in a dumpster maintained on defendant landlord's property. She appeals from a directed verdict for defendants. We reverse. The testimony at trial established that the dumpster sat on a bare ground surface, and was situated 2-1/2 to 4 feet beyond the curb bounding the paved parking lot of the apartment house. Plaintiff, 80 years old, was required by her lease to make use of the landlord's trash facilities. The location of the dumpster required her to step onto the dirt surface to deposit her trash. The accident occurred on a January afternoon after a period of rain. Plaintiff testified that the parking lot was dry and that the area between the curb and the dumpster did not appear to be muddy. Upon stepping onto the surface, however, her entire shoe sank into the mud and she lost her balance, falling backward. She suffered a fracture and remained lying on the ground for approximately one hour. In reviewing a directed verdict in favor of defendants, this Court is required to view the facts, and all legitimate inferences therefrom, in the light most favorable to plaintiff. Heins v Synkonis, 58 Mich App 119; 227 NW2d 247 (1975). The Michigan Supreme Court in Quinlivan v The Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244, 248; 235 NW2d 732 (1975), abandoned the rule that "no duty is owed the invitee respecting hazards arising from natural accumulations of ice and snow". Advanced is a new standard: *202 "While the invitor is not an absolute insurer of the safety of the invitee, the invitor has a duty to exercise reasonable care to diminish the hazards of ice and snow accumulation." 395 Mich at 261. We are persuaded that there is no substantial difference between a natural accumulation of ice and snow and a natural accumulation of mud as a result of inclement weather. The question is whether defendants' placement of the dumpster on the muddy surface represents a failure to "exercise reasonable care to diminish the hazards of * * * [mud] accumulation". The answer is certainly sufficiently disputable to require a jury's determination. Plaintiff has alleged negligent placement of the dumpster throughout her proceeding. The Quinlivan Court recalled the language of Bard v Weathervane of Michigan, 51 Mich App 329, 331; 214 NW2d 709 (1974), that a defendant has the duty "to not increase these natural hazards or create a new hazard by any affirmative act". The placement of the dumpster can be seen as such an affirmative act with hazardous effect. We believe that plaintiff should have an opportunity to have a jury determine if the placement of the dumpster was negligent and a proximate cause of her injuries. Defendants' prior knowledge of the hazardous condition is material to the concept of foreseeability. For purposes of retrial, we note our conclusion that the trial court was in error in excluding the discovery deposition of Karen Morin and the offered testimony of witness Mr. Sutherland. Reversed and remanded for a new trial. Costs to plaintiff. QUINN, J., concurred. *203 BASHARA, P.J. (concurring). I concur in the result. However, I cannot agree that Quinlivan v The Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244; 235 NW2d 732 (1975), is controlling. My research discloses no duty on the owner of property to diminish the hazards of the natural accumulation of mud due to inclement weather. The plaintiff's theory of negligence is basically the placement of the garbage dumpster in an area that was not maintained. The prevalent view is that the placement and maintenance of a garbage disposal area rests on the shoulders of the landlord, since that area is under his control Weidner v Schottenstein, 111 Ohio App 376; 169 NE2d 304 (1960), Keane v McIndoe, 93 Cal App 2d 82; 207 P2d 1059 (1949), Ullrich v Kintzele, 297 SW2d 602 (Mo App, 1957). Common areas must be kept in good repair and reasonably safe for the use of tenants. Samson v Saginaw Professional Building, Inc, 393 Mich 393; 224 NW2d 843 (1975). This is a question for the jury. I concur in the reversal and remand for trial.