Gutierrez v. Holdings
| Decision Date | 23 November 2021 |
| Docket Number | 354306 |
| Parties | KENIA MERCEDES GUTIERREZ, Plaintiff-Appellant, v. HANNAWA HOLDINGS, GENESEE, LLC, DJ'S PROPERTY MAINTENANCE, LLC, and ALLENWEST GROUP, LLC, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Wayne Circuit Court LC No. 19-002733-NO
Before: M. J. Kelly, P.J., and Stephens and Redford, JJ.
In this slip-and-fall action, plaintiff, Kenia Mercedes Gutierrez appeals as of right the trial court's order granting summary disposition to defendants Allenwest Group, LLC (Allenwest), DJ's Property Maintenance, LLC (DPM), and Hannawa Holdings, Genesee, LLC (Hannawa), under MCR 2.116(C)(10) ().[1] We reverse the trial court's order granting summary disposition to Hannawa, affirm the trial court's orders granting summary disposition to Allenwest and DPM, and remand for further proceedings.
Allenwest was the owner of a strip mall. Hannawa owned a building that was adjacent to the strip mall. Allenwest contracted with DPM to provide snow-removal services for its property and Hannawa's property, for which it later billed Hannawa. In 2019, Hannawa's building was occupied by tenant Concentra Urgent Care (Concentra). Plaintiff was an employee of Concentra. On the morning of January 29, 2019, plaintiff slipped on a patch of ice covered with snow and fell on the sidewalk a few feet from the employee entrance to Concentra. As a result, plaintiff fractured her lower left leg, requiring surgery and time off of work.
Plaintiff initially sued Hannawa and Allenwest but after notice of non-party fault, added DPM. Plaintiff filed an amended complaint on April 24, 2019. With respect to Hannawa, plaintiff alleged, in relevant part, that Hannawa possessed the relevant premises and owed her a duty to keep the premises free of dangerous conditions. Regarding Allenwest and DPM, plaintiff alleged that Hannawa contracted with them for the removal of snow and ice from the premises. She further pled that Allenwest and DPM breached that contract, and breached their separate and distinct duty to perform the contract in a reasonable manner so as to avoid endangering plaintiff. Discovery ensued.
The parties have no dispute as to the layout of the subject premises. The employee entrance was on the south side of the building; the entrances for physical therapy and urgent care patients were on the west side of the building. Plaintiff testified that she was instructed to use the employee entrance but had no reason to believe she was prohibited from using the other two entrances. Plaintiff was unaware whether the other two entrances had been cleared of snow and ice, although she could tell that the parking lot had not been cleared in front of any of the entrances. She testified that the snow was partially up the side of her tennis shoes when she exited her vehicle. There was also snow on the sidewalk that did not appear to have been shoveled or salted. Plaintiff noticed, after falling, that there was ice under her footprints. Plaintiff saw her manager shovel and salt the urgent care patient entrance the day before. After her fall, plaintiff's manager shoveled and salted the employee sidewalk. Plaintiff also knew that a snow-removal company generally cleared snow from the parking lot and sidewalks, and salted the sidewalks.
Each defendant moved the trial court for summary disposition. Hannawa argued the snow-covered ice upon which plaintiff slipped was open and obvious, was neither unreasonably dangerous nor effectively unavoidable. Therefore, no duty was owed to the plaintiff to protect her from danger posed by ice and snow. Allenwest and DPM both argued there were entitled to summary disposition because plaintiff was not a third-party beneficiary of the contract between them. Allenwest additionally argued that plaintiff's premises-liability claim against it was deficient since it was not the premises possessor and, even if it was, the nature of the ice and snow being open and obvious precluded liability. DPM also argued it owed plaintiff no legal duty separate and distinct from its contract with Allenwest, to which plaintiff was not a party.
Plaintiff submitted evidence in opposition to defendants' motions. Plaintiff submitted the contract between Allenwest and DPM, billing records from DPM for service at the subject property, meteorological reports from the 72 hours prior to her slip and fall, and an affidavit from Steven J. Ziemba. In his affidavit, Ziemba averred that he was a safety expert with "over 48 years of experience in the inspection and evaluation of paved surfaces". Ziemba reviewed DPM's invoices and the meteorological reports. Ziemba averred that DPM invoiced for plowing the parking lot and shoveling the sidewalks after midnight on January 29th, but did not salt the sidewalks despite freezing rain and additional snowfall.
The trial court granted summary disposition to Hannawa and Allenwest on the basis that the ice and snow was an open and obvious danger that plaintiff could have avoided by either not going into work or using an alternate entrance. The court granted summary disposition to DPM, concluding that plaintiff was not a party to the contract between DPM and Allenwest and that DPM owed plaintiff no separate and distinct duty. Plaintiff now appeals.
A trial court's decision on a motion for summary disposition is reviewed de novo. Glasker-Davis v Auvenshine, 333 Mich.App. 222, 229; 964 N.W.2d 809 (2020). Summary disposition under MCR 2.116(C)(10) is appropriate "when the affidavits or other documentary evidence, viewed in the light most favorable to the nonmoving party, show that there is no genuine issue as to any material fact and the moving party is therefore entitled to judgment as a matter of law." Lowrey v LMPS & LMPJ, Inc, 500 Mich. 1, 5; 890 N.W.2d 344 (2016). "Once the moving party meets its burden of supporting its motion under MCR 2.116(C)(10) with documentary evidence, the burden shifts to the nonmoving party to set forth specific facts showing that a genuine issue of disputed fact exists." Jim's Body Shop, Inc v Dept of Treasury, 328 Mich.App. 187, 206; 937 N.W.2d 123 (2019). "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." Highfield Beach at Lake Mich. v Sanderson, 331 Mich.App. 636, 653; 954 N.W.2d 231 (2020) (quotation marks and citation omitted). "All reasonable inferences are to be drawn in favor of the nonmovant." MemberSelect Ins Co v Flesher, 332 Mich.App. 216, 221; 956 N.W.2d 535 (2020).
Plaintiff argues the trial court erred by concluding there was no genuine issue of material fact as to whether the snow-covered ice upon which she slipped was effectively avoidable. We agree.
A premises possessor owes invitees the duty "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). However, this duty only applies to dangers with risks of harm that are unlikely to be discovered by an invitee. Id. at 516-517. Accordingly, a possessor of land does not generally owe an invitee a duty to protect against dangers that a reasonable person under the circumstances would discover and avoid, i.e., open and obvious dangers. Estate of Livings v Sage's Investment Group, LLC, ___ Mich. ___, ___; ___ N.W.2d ___ (2021) (Docket No. 159692); slip op at 6. Nevertheless, if a dangerous condition has special aspects that "give rise to a uniquely high likelihood of harm or severity of harm if the risk is not avoided" despite being open and obvious, a possessor does owe invitees a duty to prevent such harm. Lugo, 464 Mich. at 519. Our Supreme Court has recognized two ways in which a danger may qualify as having special aspects: when the danger is unreasonably dangerous or when the danger is effectively unavoidable. Hoffner v Lanctoe, 492 Mich. 450, 463; 821 N.W.2d 88 (2012). A danger is "unreasonably dangerous" when it "present[s] an extremely high risk of severe harm to an invitee who fails to avoid the risk in circumstances where there is no sensible reason for such an inordinate risk of severe harm to be presented." Lugo, 464 Mich. at 519, n 2. Hoffner, 492 Mich. at 469-470. The issue in this case concerns the latter special aspect of "effective unavoidability".
The trial court held that the danger of ice and snow was effectively avoidable because plaintiff had the options of either using the patient entrance sidewalks or not going into work that day. The court's conclusion that plaintiff had the option of using other entrances was based on a lack of evidence showing that the patient entrances were in the same condition as the employee entrance. DPM's billings records showed the sidewalks were last shoveled at 3:00 a.m on January 29th, and not salted at all that day before the accident. The snow removal contract did not impose different duties relative to the three building entrances. A reasonable jury could infer from this evidence that because all the sidewalks received the same treatment and were subject to the same weather conditions, they would have all been a similar condition at the time of plaintiff's fall. While plaintiff also testified that she had seen her manager shovel and salt the patient urgent care...
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