Opinion
ORDER
On order of the Court, the application for leave to appeal is considered, and it is DENIED, there being no majority of the Court in favor of granting leave to appeal. LEVIN, Justice, would grant leave to appeal and states as follows:
Plaintiffs were driving on U.S. 23 on a winter day. The night before, two inches of wet snow had fallen. MDOT bladed and salted the highway that night. During salting, however, the plow/salting vehicle ran out of salt as it was salting the southbound portion. The driver went to get more salt, and on return to where he had run out, a wheel fell off. Another vehicle was dispatched, and likely missed part of the unsalted portion of the highway; witnesses indicated that a quarter mile of the southbound portion had not been salted. The temperature dropped from the thirties to the teens overnight, and an ice patch formed on that quarter-mile stretch. Responding police and emergency vehicles reported clear and dry driving for miles in either direction, and difficult stopping at the accident scene due to ice.
An oncoming southbound car, in passing a car in front of it, hit a patch of ice and collided head-on with Plaintiffs, who were northbound.
I
The natural accumulation doctrine is an exception to the highway exception (duty to keep highways in reasonable repair) to governmental immunity. Neither private persons nor governmental agencies are subject to liability for injuries caused by natural accumulations of ice and snow. Where, however, an affirmative governmental undertaking to alter the accumulation of ice and snow increases the hazard of travel, or an undertaking to alter the highway itself that causes an unnatural accumulation does so, there may be liability.
II
The trial court found that MDOT had created the hazard. The government has no duty to remove snow and ice, but a duty arises once it undertakes to do so. Blading the road created a duty on the part of MDOT. MDOT failed to salt the portion of the road that was icy, and that constituted negligence. MDOT has a statutory duty to keep the roads in reasonable repair. A cause of the accident was failure to salt.
The Court of Appeals reversed, stating: Liability of government in a case like this requires an interference with travel that is unnatural, i.e., an accumulation of snow and ice different in character from conditions ordinarily brought about by winter weather. The condition on U.S. 23 was not unnatural. Salting resulting in refreezing doesn't by itself create an unnatural accumulation. The accumulation must be different in nature from that occurring naturally. Residual snow left after proper blading is not unnatural because it is no different in character from ordinary winter weather conditions. The formation of ice from packed snow is a common winter weather condition in Michigan. If MDOT had not bladed, the road would have been even more dangerous. Michigan drivers should not be surprised by intermittent patches of ice and snow on a roadway the morning after a snowfall. Defendant's actions did not increase the danger; rather, they decreased it.
III
Generally, a municipality or landowner has no duty to a licensee to remove the natural accumulation of ice or snow from any location. There are exceptions. One provides for possible liability where the municipality or landowner has taken affirmative action to alter the natural accumulation of ice and snow and, in doing so, increases the hazard of travel for the public. Plaintiff must establish that defendant's act of removing ice and snow introduced a new element of danger not previously present. Zielinski v. Szokola, 167 Mich.App. 611, 423 N.W.2d 289 (1988).
Plaintiffs have, in my opinion, stated an exception to the natural accumulation doctrine under the circumstances.
The act of removing all the ice and snow up to the ice patch likely led the driver of the southbound vehicle to expect that the entire road was clear. He drove accordingly.
Had no removal been undertaken, the road would have been all ice, and either no one would have driven on it, or those on it would have driven knowing that the road was icy. But for the actions of MDOT in salting all but a quarter mile stretch, this accident probably would not have occurred. MDOT's actions are both the cause in fact and the proximate cause of the accident.
A quarter mile patch of ice on an otherwise clear road is an unnatural condition.
Even the rule proposed by MDOT results in subjecting it to liability. MDOT says that the natural accumulation rule precludes liability unless the condition could not have been created by natural weather. A quarter mile patch of ice on this otherwise dry and clear highway could not have been created by natural weather. There was no evidence of a dip in the highway where water or snow might accumulate and be missed by a plow. And if the whole quarter mile stretch were lower than the rest, a snowplow would, as it traversed the lower area, also be lower than the rest of the highway.
BOYLE and MALLETT, JJ., would grant leave to appeal.
MICHAEL F. CAVANAGH, J., not participating.