Estate of Trueblood v. P&G Apartments, LLC

• Decision Date: 12 March 2019
• Docket Number: No. 340642,340642
• Citation: 933 N.W.2d 732,327 Mich.App. 275
• Parties: ESTATE OF Daniel George TRUEBLOOD, Plaintiff-Appellant, v. P&G APARTMENTS, LLC, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

327 Mich.App. 275

933 N.W.2d 732

ESTATE OF Daniel George TRUEBLOOD, Plaintiff-Appellant,

v.P&G APARTMENTS, LLC, Defendant-Appellee.

No. 340642

Court of Appeals of Michigan.

Submitted March 6, 2019, at Detroit.

Decided March 12, 2019, at 9:05 a.m.

Baratta & Baratta, PC, Mount Clemens (by Christopher R. Baratta ) for the Estate of Daniel G. Trueblood.

Raftery & Barron PC (by Jeanne V. Barron, Lathrup Village) for P&G Apartments, LLC.

Before: O'Brien, P.J., and Jansen and Ronayne Krause, JJ.

Per Curiam.

Plaintiff¹ appeals as of right the trial court’s order granting summary disposition to defendant under MCR 2.116(C)(10). We affirm in part, reverse in part, and remand for further proceedings.

This slip-and-fall action arose after plaintiff slipped on a sidewalk on January 11, 2016, at around 11:00 a.m., injuring himself. The sidewalk was located on the premises of defendant’s apartment complex where plaintiff was a tenant.

Jeffrey Andresen, who had a Ph.D. in atmospheric science and agronomy, prepared a report at plaintiff’s request about the "meteorological and climatological records regarding the possible presence of snow and ice on the ground at" the property when and where plaintiff fell. Based on his review of the records, Andresen believed that approximately 3.4 inches of snow fell in the 24 hours before plaintiff’s fall. According to Andresen, the snowfall combined with the conditions on paved surfaces at the property "would have resulted in a significant layer of ice ... mostly refrozen slush ... on the surface covered by a thin layer of dryer, fluffy snow[.]" Andresen testified that he based some of his conclusions on a combination of photographs² taken shortly after plaintiff fell and the records of the weather conditions around the time that plaintiff fell. According to Andresen, it was "pretty clear" from the photos "that there [was] ice on the surface." Andresen believed that the photos showed "ice covering almost everything," which he said was "consistent with what the weather records suggest also."

Gregory Borg, the sole owner of the apartment complex, testified that he does his own maintenance, snow removal, and deicing. Borg testified that he plows and uses a snowblower at the buildings, and "[s]ometimes [he has John] Suboch help [him] ...." Suboch confirmed that in January 2016, he would help Borg "remove the snow and throw salt out." Borg testified that to determine when snow removal was necessary, he "look[ed] at the news" and "[if it was] snowing out [he would] get out there that night or in the morning." He explained that he would "[u]sually go the night before and assess the situation and either salt it down, and then the next morning if [there was] a big snowfall[,] plow or snow blow."

Borg testified that he was out at plaintiff’s apartment "the night before" plaintiff fell because Borg "remember[ed that] there was a light dusting of snow ... [a]nd [he] went out there and ... threw some salt around the walkways, and [he] threw some in the parking lot." Borg estimated that he threw "a couple bags" of salt that night because that was "pretty much the norm" to "cover the area." Borg testified that he was also out at the property around 9:00 a.m. on the day that plaintiff fell. According to Borg, he and Suboch "salted the property" and "[p]robably snow-blowed and maybe ran the plow over the parking lot a couple times."

But several tenants of the subject property disputed Borg’s testimony. Plaintiff testified that he never observed anyone doing snow or ice removal on the property on defendant’s behalf. In fact, plaintiff said that he never saw Borg do any work at the premises, but did see another man doing maintenance. Tenant Anthony Lopenski testified that it did not "really" look like there had been any snow removal on the day that plaintiff fell, it looked "snowy" to him, and "[t]here was no salt to be found" anywhere on the property that day. Tenant Kyla Nunley testified that Borg "absolutely" had not salted before plaintiff fell and that she had not seen Borg or anyone else applying salt or plowing the premises the night before plaintiff fell. Nunley testified that she called Borg after plaintiff fell and saw Borg put salt down shortly "[a]fter the fact." Lopenski similarly testified that he did not see Borg doing any snow removal or deicing until after plaintiff left in the ambulance. Borg confirmed that he was at the apartment complex with Suboch after he was informed that plaintiff fell.

Plaintiff testified that on the morning he fell, he was going to visit his attorney. According to plaintiff, he did not have any particular reason for going to see his attorney that day; it was simply "the day [he] chose." Plaintiff was aware that it had snowed the day before, and as he was leaving, "all [he] could see was a fine layer of snow ...." Plaintiff noted that it was possible to get to his car by using a different doorway on the other side of the building, but he stated that he would not use that route because a person would still "have to walk around the front through the snow" to get to his or her car on the other side, and it "would be kind of lame to do that when you can just walk out the door [on the other side] and go to your car."³ Borg confirmed that tenants could use either entrance to access parking.

Plaintiff testified that when he used the door closest to where his car was parked, he took two or three steps on the sidewalk and then fell backward "on [his] derriere." Plaintiff saw snow on the ground, but assumed that "ice underneath the snow" made him fall, though he "didn’t see [ice] under the snow." Plaintiff clarified that he assumed it was there because "it was slippery," he was wearing "the best boots you can buy," and he would not "have slipped on just snow." Plaintiff was not aware of anyone else ever falling on the property, and did not see anyone else slip on ice on the day he fell.

Lopenski testified that he lived on the first floor of the property and that he saw plaintiff fall. When Lopenski saw plaintiff fall, he was sitting in his apartment in "a chair right by the window." Lopenski testified that he heard the door to the outside slam, then "looked over [and saw plaintiff’s] arms go up and he disappeared." Lopenski testified that he went out to help plaintiff after he fell, and the sidewalk felt "[s]lippery." Lopenski assumed that it felt slippery because "it was icy." Lopenski later clarified that he did not see any ice, and that he just saw "a sheet of snow." But Lopenski doubled down on his testimony that there was ice beneath the snow, explaining that he "believe[d]" that there was a "real thin" layer of snow with "ice under there." Nunley, who was in Lopenski’s apartment when Lopenski saw plaintiff fall, also went outside to the sidewalk after plaintiff fell. Nunley testified that the sidewalk where plaintiff fell was "real icy."

Plaintiff filed a two-count complaint on May 3, 2016. Count 1 alleged, in relevant part, violations of MCL 554.139, and Count 2 alleged premises liability.

On August 4, 2017, defendant moved for summary disposition under MCR 2.116(C)(10). Defendant first addressed plaintiff’s claim under MCL 554.139(1)(a) that the sidewalk was not fit for its intended use. Defendant contended that plaintiff could not establish that the sidewalk was not fit for its intended use because he could "not even verify he fell on ice" and "could not say for sure that the ice caused his fall[.]" Defendant also pointed out that Lopenski did not slip and fall on any ice, nor did the EMS workers, which established that other people were able to use the sidewalk for its intended purpose. Defendant also argued that MCL 554.139(1)(b) —the duty "[t]o keep the premises in reasonable repair"—did not apply to common areas such as the sidewalk where plaintiff slipped.

Defendant then addressed plaintiff’s premises-liability claim. Defendant argued that the dangerous condition was open and obvious because "plaintiff admitted to seeing a layer of snow as he exited the building" and, "[g]iven that it was January, in Michigan, a reasonable person would expect there to be other wintry conditions such as additional snow or even ice, and to be on the lookout." Defendant lastly argued that Andresen’s testimony could not create a genuine question of fact because "all that can really be shown is that snow was likely present," and Andresen’s testimony about ice "contradict[s] the plaintiff’s own testimony about the condition of the sidewalk." Defendant concluded that "the mere presence of snow does not establish the Defendant’s fault."

Plaintiff filed a brief in opposition to defendant’s motion on September 5, 2017. Plaintiff first argued that there was a genuine issue of material fact as to his theory of premises liability. Plaintiff contended that the hazard was ice, and that the ice was not obvious because no one actually saw the ice; they only saw a thin sheet of snow. Alternatively, plaintiff argued that the ice was effectively unavoidable. According to plaintiff, he "had no other way of getting to his car than by traversing either the front (west) sidewalk or the rear sidewalk and parking areas, all of which were covered with the same frozen slush or sleet," so that walking on ice was effectively unavoidable.

Turning to his statutory theories of liability, plaintiff first argued that the sidewalk he slipped on was not fit for its intended use. Plaintiff argued that a sidewalk’s intended purpose was for walking, and that it was not fit for its intended use if, as the evidence suggested, the sidewalk was icy and Borg had not salted the sidewalk before plaintiff fell. Plaintiff also contended that defendant failed to comply with a local law that required it to maintain its walkways "so as to afford safe passage" because it failed to timely remove the ice from the sidewalk.

On September 28, 2017, the trial court held a hearing on defendant’s motion. After hearing the parties' arguments, which...