STATE OF MICHIGAN COURT OF APPEALS DOUGLAS MADDIX, Plaintiff-Appellant, UNPUBLISHED June 23, 2005 v No. 251223 Macomb Circuit Court PRIME PROPERTY ASSOCIATES, INC., LC No. 02-003762-NO MARCO SANTI and RONALD RUSSELL, d/b/a AMERICAN OAKS PROFESSIONAL CENTER, Defendants-Appellees. Before: Gage, P.J., and Cavanagh and Griffin, JJ. PER CURIAM. Plaintiff appeals as of right the trial court order granting defendants summary disposition. We reverse and remand. Plaintiff worked in an office building managed by defendant Prime Property Associates, Inc., and owned by defendants, Marco Santi and Ronald Russell, d/b/a American Oaks Professional Center, in Utica. On January 16, 2002, snow had been falling for three to four hours when plaintiff left work at 8:00 p.m. He noticed the accumulation of snow on the ground, but he did not see any ice. As plaintiff began walking down a handicapped ramp leading to the adjacent parking lot, he slipped and fell, sustaining injuries to his left arm and shoulder. Plaintiff claims that although he did not see any ice before his fall, he felt black ice beneath his feet as he stepped down. Plaintiff argues that the trial court erred in granting defendants summary disposition because there is a genuine issue of material fact about whether the ice was open and obvious. We review de novo a trial court s decision on a motion for summary disposition. Rose v Nat l Auction Group, Inc, 466 Mich 453, 461; 646 NW2d 455 (2002). When reviewing a decision on a motion for summary disposition pursuant to MCR 2.116(C)(10), we consider the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted by the parties in the light most favorable to the party opposing the motion. Id. Summary disposition is appropriately granted, if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Id. We view the facts in a light most favorable to the nonmoving party. If the facts present an issue about which reasonable minds could differ, a genuine issue of material fact exists and summary disposition may not be granted. Kenny v Kaatz Funeral Home, Inc, 264 Mich App 99, 105; 689 NW2d 737 (2004). -1-
Generally, a premises possessor has a duty to exercise reasonable care to protect an invitee from an unreasonable risk of harm caused by a dangerous condition on the land. Lugo v Ameritech Corp, 464 Mich 512, 516; 629 NW2d 384 (2001). This duty does not, however, extend to hazardous conditions that are open and obvious. Where the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, an invitor owes no duty to protect or warn the invitee unless he should anticipate the harm despite knowledge of it on behalf of the invitee. Id. The test for an open and obvious danger is whether an average user with ordinary intelligence would have been able to discover the danger and the risk presented upon casual inspection. Kenny, supra at 105. When an accumulation of snow and ice is open and obvious, the premises possessor must take reasonable measures within a reasonable period of time after the accumulation to diminish the hazard only if there is some aspect of the accumulation that makes the accumulation unreasonably dangerous. Mann v Shusteric Enterprises, Inc, 470 Mich 320, 332; 683 NW2d 573 (2004). However, not all snow and ice accumulation is open and obvious. Kenny, supra at 107. In determining whether accumulation is open and obvious, we consider whether the plaintiff had actual knowledge of ice or snow-covered ice, Corey v Davenport College of Business (On Remand), 251 Mich App 1, 5; 649 NW2d 392 (2002); Joyce v Rubin, 249 Mich App 231, 239-240; 642 NW2d 360 (2002), whether there was any previous rainfall or extensive thawing that might put one on notice of the presence of ice under snow, and whether the plaintiff observed other people slipping or taking special care traversing the same area, Kenny, supra at 108. The trial court found that the snowy and icy condition was open and obvious because plaintiff had seen the snow before he fell. However, it noted no additional indicators that would alert plaintiff to the dangerous condition other than the mere accumulation of snow itself. There was no evidence of previous rainfall, extensive thawing, or others slipping or taking special care traversing the same area, and the mere accumulation of ice and snow does not constitute an open and obvious condition. Quinlivan v Great Atlantic & Pacific Tea Co, 395 Mich 244, 260; 235 NW2d 732 (1975); Kenny, supra. A reasonably prudent person would proceed much more cautiously while traversing ice, and there is no evidence that plaintiff was aware of the accumulation of ice underneath the snow. Kenny, supra at 109. Viewing the evidence in a light most favorable to plaintiff, we conclude that summary disposition should not have been granted on this basis alone. Plaintiff also argues that, even if the snow-covered ice is open and obvious, defendant should be subject to liability because there were special circumstances that made the condition unreasonably dangerous. When an accumulation of snow and ice is open and obvious, the premises possessor must take reasonable measures within a reasonable period of time after the accumulation to diminish the hazard only if there is some aspect of the accumulation that makes the accumulation unreasonably dangerous. Mann, supra at 332. We focus on the degree of potential harm presented, and there must be special aspects that create a uniquely high likelihood of harm or severity of harm if the risk is not avoided. Lugo, supra at 518 n 2, 519. Plaintiff maintains that he would have encountered similarly icy and snowy conditions regardless of which exit he used. When plaintiff exited the building, he had the choice between using a staircase and a handicapped ramp to reach the parking lot. Plaintiff has not offered any evidence to suggest that he would have encountered snow-covered ice if he had used the staircase at this particular exit or one of the other six available exits. We cannot say that the -2-
snow-covered ice present on the handicapped ramp was unavoidable. We therefore conclude that the trial court properly concluded that no special circumstances existed that made the risk of harm unreasonable. Defendants argue, as an alternative ground for affirmance, that they owed no legal duty to plaintiff. Middlebrooks v Wayne Co, 446 Mich 151, 166 n 41; 521 NW2d 774 (1994). Because the trial court did not address whether defendants owed a legal duty to plaintiff, this issue is unpreserved. Adam v Sylvan Glynn Golf Course, 197 Mich App 95, 98; 494 NW2d 791 (1992). We may, however, review it because it is a question of law, and the facts necessary for its resolution have been presented. Village of Hickory Pointe Homeowners Ass n v Smyk, 262 Mich App 512, 516; 686 NW2d 506 (2004). A premises possessor generally has the duty to inspect the premises and make any necessary repairs or warn invitees of any discovered hazards or known dangers. James v Alberts, 464 Mich 12, 19-20; 626 NW2d 158 (2001). If the snow or ice hazard is not open and obvious, the premises possessor owes a duty to an invitee to take reasonable measures within a reasonable period of time after the accumulation to diminish the hazard. Mann, supra at 332; Kenny, supra at 107. With regard to the accumulation of snow, the general standard of care requires defendant to shovel, salt, sand, or otherwise remove the snow. Lundy v Groty, 141 Mich App 757, 760; 367 NW2d 448 (1985). The evidence presented shows that snow began to fall at 3:00 or 4:00 p.m. Plaintiff slipped and fell at 8:00 p.m., after 2-1/2 to 3 inches of snow had accumulated. The snowfall continued until 10:00 p.m., with about one additional inch of accumulation after plaintiff s fall. It is undisputed that defendants did not take any measures to remove the snow or ice until after the snowfall stopped. Whether it is a breach of duty to wait until the snow stopped falling to take measures to remove the hazard is a question of fact for the jury. Lundy, supra at 760-761. We therefore reverse the trial court order granting defendants summary disposition and remand to the trial court for further proceedings consistent with this opinion. The dissent focuses on plaintiff s failure to provide evidence that defendants had notice of the snowy and icy condition and therefore owed plaintiff a duty. We cannot, however, disregard the precedent in Mann, supra and Kenny, supra. Defendants clearly owed plaintiff a duty, and that duty is dictated by whether the danger presented by the snow-covered ice was open and obvious. If the danger was not open and obvious, defendants owed a duty to take reasonable measures within a reasonable period of time to diminish the hazard. Id.; Kenny, supra at 107. If the danger was open and obvious, defendants duty was to take reasonable measures within a reasonable period of time only if there is some aspect of the accumulation that makes it unreasonably dangerous. Mann, supra at 332. Reversed and remanded. We do not retain jurisdiction. /s/ Hilda R. Gage /s/ Mark J. Cavanagh -3-
STATE OF MICHIGAN COURT OF APPEALS DOUGLAS MADDIX, Plaintiff-Appellant, UNPUBLISHED June 23, 2005 v No. 251223 Macomb Circuit Court PRIME PROPERTY ASSOCIATES, INC., LC No. 2002-003762-NO MARCO SANTI, and RONALD RUSSELL, d/b/a AMERICAN OAKS PROFESSIONAL CENTER, Defendant-Appellees. Before: Gage, P.J., and Cavanagh and Griffin, JJ. GRIFFIN, J. (dissenting). I respectfully dissent. I would affirm on the alternative ground 1 that, in response to defendant s motion for summary disposition pursuant to MCR 2.116(C)(10), plaintiff failed to sustain his burden of submitting evidence that defendant knew, or should have known, of the hazardous condition on the premises the black ice. McCune v Meijer, Inc, 156 Mich App 561, 563; 402 NW2d 6 (1986). In Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 597; 614 NW2d 88 (2000), our Supreme Court adopted as the duty owed by an invitor to an invitee 2 the standards set forth by 2 Restatement Torts, 2d, 343. The Restatement, id. at pp 215-216, provides: 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 1 See generally Middlebrooks v Wayne Co, 446 Mich 151, 166 n 41; 521 NW2d 774 (1994). 2 For purposes of defendant s motion for summary disposition, the parties do not dispute plaintiff s status as an invitee. -1-
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. [Emphasis added.] See also Quinlivan v The Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244, 258-261; 235 NW2d 732 (1975). In regard to the element of notice, which is necessary to establish defendant s duty to plaintiff, our Court in Whitmore v Sears, Roebuck & Co, 89 Mich App 3, 8; 279 NW2d 318 (1979), explained: Thus, in order to recover from Sears, plaintiff must show either that an employee of Sears caused the unsafe condition or that a servant of Sears knew or should have known that the unsafe condition existed, Anderson v Merkel, 393 Mich 603; 227 NW2d 554 (1975), Suci v Mirsky, 61 Mich App 398; 232 NW2d 415 (1975). Notice may be inferred from evidence that the unsafe condition has existed for a length of time sufficient to have enabled a reasonably careful storekeeper to discover it, Suci v Mirsky, supra, Winfrey v SS Kresge Co, 6 Mich App 504; 149 NW2d 470 (1967). Where there is no evidence to show that the condition had existed for a considerable time, however, a directed verdict in favor of the storekeeper is proper, Serinto v Borman Food Stores, [380 Mich 637; 158 NW2d 485 (1968)] supra, Suci v Mirsky, supra, Winfrey v SS Kresge Co, supra. Cf. Holliday v National Dairy Products Corp, 391 Mich 816 (1974), reversing 50 Mich App 366; 213 NW2d 289 (1973). [Emphasis added.] In holding that plaintiff failed to establish a prima facie premises liability case due to lack of evidence of notice of the condition, the Whitmore Court stated: Plaintiff established that there was an oily substance on Sears parking lot at the spot where she fell, from which one might be able to infer that the substance caused her fall, cf. Stefan v White, [76 Mich App 654; 257 NW2d 206 (1977)] supra. There is no testimony, however, from which one may infer that the substance came there as a result of the actions of Sears employees; nor is there evidence that Sears had actual notice of the presence of the substance. Finally, there is no testimony that the substance had been in the parking lot for a considerable period of time, evidence from which the inference could be drawn that Sears should have known of its presence. Indeed, there is no evidence from which a jury could infer that the substance had been on the parking lot surface for some time (e.g., testimony that many cars appeared to have driven through the substance). Here, as was the case in Serinto v Borman Food Stores, supra, the substance was indisputably at the spot where plaintiff fell, but how and when it came there were matters of conjecture. Plaintiff failed to carry the burden of establishing a prima facie case against defendants; defendants motions for directed verdicts at the close of -2-
plaintiff s case should therefore have been granted. [Whitmore, supra at 10; emphasis in original.] Furthermore, in McCune, supra at 563, our Court, citing MCR 2.116(G)(4), held that the element of notice cannot be proved based on sheer speculation and mere conjecture. See also Maiden v Rozwood, 461 Mich 109, 120-121; 597 NW2d 817 (1999), and Smith v Globe Life Ins Co, 460 Mich 446, 455-456 n 2; 597 NW2d 28 (1999). In my view, plaintiff failed to sustain his factual burden of showing that defendant knew or should have known of the condition. Whitmore, supra; McCune, supra. Thus, defendant owed plaintiff no duty as a matter of law. Id. Plaintiff contends that the black ice was hidden and not readily apparent to a person exercising reasonable diligence. In this regard, plaintiff argues as follows in his brief on appeal: The only testimony offered by the Defendants was that the Plaintiff had been aware of snow on the handicap ramp. Defendant offered no factual evidence that Plaintiff, or a reasonable person, would have been able to discover the condition of the concealed ice. * * * The test for determining whether a condition is open and obvious is objective and focuses not on whether plaintiff should have known that the condition was hazardous, but whether a reasonable person in his position would foresee the danger. See Joyce [v Rubin, 249 Mich App 231; 642 NW2d 360 (2002)], supra at 238-239. Applying this test to the present case, a reasonable person would not have known or suspected that a dangerous condition harbored underneath the freshly fallen snow. [Emphasis added.] I agree with plaintiff that the fact it had been snowing for four to five hours with an accumulation of only two and a half to three inches is insufficient notice, in itself, to alert plaintiff or defendant that black ice may be camouflaged under the snow. 3 In addition, unlike most cases, there were no previous incidents caused by the ice, which should have alerted defendant to the condition. The majority s reliance on the pre- open and obvious 4 decision Lundy v Groty, 141 Mich App 757; 367 NW2d 448 (1985) is misplaced. In Lundy, the plaintiff slipped and fell on a snow-covered driveway at approximately noon. Based on the fact that a snowstorm had begun 3 The majority does not rely on the affidavit of meteorologist Paul H. Gross. According to Mr. Gross, the snow developed between 3:00 pm and 3:30 pm and temperatures returned back to freezing by 4:00 P.M. Accordingly, the time period for a thaw was extremely short-lived. 4 See generally Lugo v Ameritech Corp, Inc, 464 Mich 512, 516-520; 629 NW2d 384 (2001), and cases cited therein. -3-
the previous evening and snow was still falling at the time of the accident, our Court held that the defendant should have known of the snowy condition of the driveway: The Quinlivan [v The Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244; 235 NW2d 732 (1975)] holding clearly follows the common law set forth in the Restatement and describes both the duty owed and the general standard of care involved. In the instant case, defendant would owe plaintiff a duty because she should know that snow was falling on her property and that it would create a dangerous condition for the elderly plaintiff. [Lundy, supra at 760; emphasis added.] Unlike Lundy, in the present case, plaintiff claims not to have fallen on snow but on hidden black ice. As to an average person in plaintiff s position, plaintiff argues that... a reasonable person would not have known or suspected that a dangerous condition harbored underneath the freshly fallen snow. Plaintiff s argument in this regard was adopted by our Court in Kenny v Kaatz Funeral Home, Inc, 264 Mich App 99; 689 NW2d 737 (2004). In Kenny, the majority differentiated the hazard of snow from the hazard of black ice. To be consistent, if such a distinction is made, it should be applied to both plaintiff and defendant. Accordingly, I would hold that defendant s actual or constructive knowledge of snow is insufficient, in itself, to establish that defendant knew or should have known of the black ice underneath the snow. For these reasons, I would affirm the summary disposition granted in favor of defendant. /s/ Richard Allen Griffin -4-