Opinion
359616
03-02-2023
SHARIA TAYLOR, Plaintiff-Appellant, v. GORDON MANAGEMENT COMPANY, INC Defendant-Appellee.
UNPUBLISHED
Macomb Circuit Court LC No. 2020-004411-NO
Before: RICK, P.J., and M. J. KELLY and RIORDAN, JJ.
PER CURIAM.
In this premises liability action, plaintiff appeals as of right the order granting summary disposition under MCR 2.116(C)(10) in favor of defendant. Because we find that the snow and ice on which plaintiff fell was an open and obvious condition that was not effectively unavoidable, we affirm.
I. BACKGROUND
This case arises out of an injury sustained by plaintiff when she slipped and fell on February 17, 2019, while exiting a vehicle that her fiance parked under a carport in the parking lot of an apartment complex where her fiance's mother resided. Defendant serves as the manager of the apartment complex.
Plaintiff testified in her deposition that snow had begun to fall as they were traveling to the apartment complex and that it was dark when they arrived. The parking lot was covered with a layer of snow. Plaintiff testified that she looked at the ground before stepping out of the vehicle and it "looked like it was safe to step on." Plaintiff first noticed the ice on the pavement as she stepped from the vehicle and "felt ice up under [her] foot." Plaintiff maintained that it was not apparent that there was ice beneath the snow. Plaintiff fell backward to the ground and landed on her right side. Plaintiff's fiance helped her to get up from the ground and it was at this point, plaintiff testified, that she noticed that the whole parking lot was covered in ice, though the ice was allegedly obscured by snow. Weather reports from the date of plaintiff's fall indicated that the temperature was approximately 21 to 26 degrees Fahrenheit throughout the day, with two to three inches of snowfall in the evening around the time when plaintiff fell. This photograph, which is part of the record, depicts the area where plaintiff fell and the amount of snow present at that time. The lower portion of the image shows the running board of the vehicle that plaintiff exited, with the darker area being where her fall disturbed the snow.
(Image Omitted)
Plaintiff filed this premises liability lawsuit, claiming that the snow-covered iceconstituted a dangerous condition on defendant's premises and that defendant breached its duties to her by its "failure to clear snow from the parking lot resulted in hiding unsalted ice below[,] which caused [p]laintiff to slip and fall as she exited her vehicle."
We note that plaintiff's complaint alleged that the ice was hidden by a covering of snow. Plaintiff first referred to the ice as "black ice" in her response to defendant's motion for summary disposition. However, snow-covered ice is not the same as black ice. In Slaughter v Blarney Castle Oil Co, 281 Mich.App. 474, 482-483; 760 N.W.2d 474 (2008), this Court examined the definition of "black ice" and noted that "[t]he overriding principle behind the many definitions of black ice is that it is either invisible or nearly invisible, transparent, or nearly transparent." Although the ice beneath the snow may have been black ice, plaintiff specifically alleged that it was defendant's failure to clear snow from the parking lot that prevented her from seeing the ice.
Defendant moved for summary disposition, arguing that snow and ice constituted an open and obvious condition with no special aspects. Plaintiff responded that the ice beneath the snow was not open and obvious because it was hidden by a layer of snow. She also maintained that the snow and ice were effectively unavoidable and, therefore, the open and obvious doctrine did not bar her claim. The trial court found that the snow and ice on which plaintiff slipped was an open and obvious hazard and granted summary disposition in favor of defendant.
Plaintiff argues that the trial court applied an incorrect legal standard when ruling on the motion for summary disposition. Because we review the legal issues independently and without deference to the trial court, the trial court's legal analysis is not relevant on appeal. Wright v Genesee Co, 504 Mich. 410, 417; 934 N.W.2d 805 (2019).
II. STANDARD OF REVIEW
"[T]he application of the open and obvious danger doctrine is part of the question of duty that is a question of law for the court to decide." Jeffrey-Moise v Williamsburg Towne Houses Coop, Inc, 336 Mich.App. 616, 633; 971 N.W.2d 716 (2021). This Court reviews a trial court's decision on a motion for summary disposition de novo. El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159; 934 N.W.2d 665 (2019). Under MCR 2.116(C)(10), the party moving for summary disposition is entitled to judgment as a matter of law when, "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact." The reviewing court considers affidavits, pleadings, depositions, and other evidence in the light most favorable to the nonmoving party. Maiden v Rozwood, 461 Mich. 109, 120; 597 N.W.2d 817 (1999). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v Gen Motors Corp, 469 Mich. 177, 183; 665 N.W.2d 468 (2003).
III. ANALYSIS
Plaintiff contends that the black ice beneath the snow on which she slipped was not an open and obvious condition and that, even if it was open and obvious, it was effectively unavoidable. We disagree.
See n 1.
"In a premises liability action, a plaintiff must prove the elements of negligence: (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff's injury, and (4) the plaintiff suffered damages." Benton v Dart Props, Inc, 270 Mich.App. 437, 440; 715 N.W.2d 335 (2006). Whether a landowner owes a duty to a visitor depends on that visitor's status as either a trespasser, licensee, or invitee. Stitt v Holland Abundant Life Fellowship, 462 Mich. 591, 596; 614 N.W.2d 88 (2000). "[T]enants are invitees of the landlord while in the common areas" because the landlord has "exclusive possession of the common areas" and authorizes tenants to use them in exchange for rent. Stanley v Town Square Coop, 203 Mich.App. 143, 147; 512 N.W.2d 51 (1993). A landlord also generally gives "tenants the right to invite others onto the property," and therefore "the same duty that a landlord owes to its tenants is also owed to their guests." Id. at 148; see also Petraszewsky v Keeth (On Remand), 201 Mich.App. 535, 540; 506 N.W.2d 890 (1993) (holding that "the duties owed by a landlord to the social guests of a tenant are duties owed to invitees, not licensees"). Plaintiff went to the apartment complex to visit her fiance's mother, one of defendant's tenants. Consequently, with respect to the parking lot, defendant owed plaintiff a duty as an invitee.
"In general, a premises possessor owes a duty to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land." Lugo v Ameritech Corp, Inc, 464 Mich. 512, 516; 629 N.W.2d 384 (2001). The duty to invitees 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." Hoffner v Lanctoe, 492 Mich. 450, 464; 821 N.W.2d 88 (2012) (citation omitted). However, this duty does not extend to conditions that are open and obvious unless special aspects of the condition make the risk unreasonably dangerous. Lugo, 464 Mich. at 516-517. A condition is open and obvious if "an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection." Novotney v Burger King Corp, 198 Mich.App. 475; 499 N.W.2d 379 (1993). This inquiry is objective and focuses on "whether a reasonable person in the plaintiff's position would have foreseen the danger, not whether the particular person knew or should have known that the condition was dangerous." Slaughter v Blarney Castle Oil Co, 281 Mich.App. 474, 479; 760 N.W.2d 287 (2008).
"Generally, the hazard presented by snow and ice is open and obvious, and the landowner has no duty to warn of or remove the hazard." Jeffrey-Moise, 336 Mich.App. at 634-635 (citation and quotation marks omitted). With respect to wintry weather, "our courts have progressively imputed knowledge regarding the existence of a condition as should reasonably be gleaned from all of the senses as well as one's common knowledge of weather hazards that occur in Michigan during the winter months." Slaughter, 281 Mich.App. at 479. In Janson v Sajewski Funeral Home, Inc, 486 Mich. 934, 935; 782 N.W.2d 201 (2010), the Supreme Court explained that "black ice" is "open and obvious when there are 'indicia of a potentially hazardous condition,' including the 'specific weather conditions present at the time of the plaintiff's fall.'" See also Ragnoli v North Oakland-North Macomb Imaging, Inc, 500 Mich. 967, 967; 892 N.W.2d 377 (2017) (holding that the "trial court correctly held that, notwithstanding the low lighting in the parking lot, the presence of wintry weather conditions and of ice on the ground elsewhere on the premises rendered the risk of a black ice patch 'open and obvious such that a reasonably prudent person would foresee the danger' of slipping and falling in the parking lot.").
Here, applying the objective standard, and viewing the evidence in the light most favorable to plaintiff, the ice on which plaintiff slipped was open and obvious as a matter of law. Wintry conditions were clearly present at the time of the plaintiff's fall. It was February in Michigan. The temperature was approximately 21 to 27 degrees Fahrenheit. Snow was falling. Plaintiff admitted that she observed a layer of snow on the parking lot before she stepped from the vehicle. Even if the ice had not been covered with snow, these wintry conditions presented indicia of a potentially hazardous condition in the parking lot to alert an average person with ordinary intelligence to the potential danger of slipping. Janson, 486 Mich.App. at 935. The ice on which plaintiff fell was therefore open and obvious.
That does not end our inquiry, however. Plaintiff argues that the hazardous condition, even if open and obvious, was effectively unavoidable because the entire parking lot was covered with black ice hidden by snow. "[T]he standard for 'effective unavoidability' is that a person, for all practical purposes, must be required or compelled to confront a dangerous hazard. As a parallel conclusion, situations in which a person has a choice whether to confront a hazard cannot truly be unavoidable, or even effectively so." Hoffner, 492 Mich. at 469.
Our Supreme Court recently created an exception to the stringent "effectively unavoidable" rule, holding in Estate of Livings v Sages Investment Group, LLC, 507 Mich. 328, 349; 968 N.W.2d 397 (2021), that "a hazard can be deemed effectively unavoidable if the plaintiff confronted it to enter his or her place of employment for purposes of work." Livings, however, is inapplicable here.
In the present case, plaintiff's testimony demonstrates that the hazard was not effectively unavoidable. Plaintiff testified that after her fall she successfully traversed across the parking lot and into the apartment building without incident. There are a number of possibilities that plaintiff could have chosen to avoid the snow and ice condition. Plaintiff could have asked her fiance to park in a different location, or she could have arranged to have the social visit on a different day. Plaintiff was not "required or compelled to confront" a dangerous hazard. The hazardous condition of the snow and ice was not effectively unavoidable for purposes of premises liability. Hoffner, 492 Mich. at 469. Thus, the trial court properly granted defendant's motion for summary disposition.
It is not necessary to address defendant's argument, offered as an alternative ground for affirmance, that, as the apartment complex's management company, it was neither the landowner nor possessor of the premises.
We decline to address plaintiff's request that this Court overrule Lugo's special aspect test "as applied to the duty element." This Court cannot overrule a decision of the Michigan Supreme Court. See People v Crockran, 292 Mich.App. 253, 256; 808 N.W.2d 499 (2011).
Affirmed. Defendant, being the prevailing party, may tax costs pursuant to MCR 7.219.