Kenny v. Kaatz Funeral Home, Inc.
| Decision Date | 08 December 2004 |
| Docket Number | Docket No. 248720. |
| Citation | 689 N.W.2d 737,264 Mich. App. 99 |
| Parties | Elizabeth KENNY, Plaintiff-Appellant, v. KAATZ FUNERAL HOME, INC., Defendant-Appellee, and R & L Snow and Lawn Service, Defendant. |
| Court | Court of Appeal of Michigan — District of US |
Law Offices of Samuel I. Bernstein (by Michael A. Weisserman), Farmington Hills, for the plaintiff.
Collins, Einhorn, Farrell & Ulanoff, P.C. (by Kevin P. Moloughney and Regina T. Delmastro), Southfield, for defendant Kaatz Funeral Home, Inc.
Before: MURPHY, P.J., and GRIFFIN and WHITE, JJ.
Plaintiff Elizabeth Kenny appeals as of right the trial court's order granting defendant Kaatz Funeral Home, Inc., summary disposition pursuant to MCR 2.116(C)(10) in this premises liability action involving a slip and fall on snow-covered ice in defendant's parking lot.1 We reverse.
In December 2001, plaintiff, who was seventy-eight years old at the time, and four companions drove to defendant's funeral home to attend a coworker's funeral. After plaintiff left the car and while she was walking near the rear of the car in the funeral home parking lot, she slipped and fell, fracturing her hip. The following pertinent excerpts come from the transcript of plaintiff's deposition:
Richard Kaatz, defendant's president and primary shareholder, testified in his deposition that it had snowed earlier in the day on the date of the accident, stopped for a while, and then resumed snowing in the evening. He indicated that it was dark around 5:00 p.m. during that time of the year. Kaatz arrived at the funeral home around 5:00 p.m., and he observed that snow had covered the parking lot. He did not believe that it had snowed the previous two or three days.
Defendant moved for summary disposition, arguing that it had neither actual nor constructive notice of the allegedly dangerous condition and, at the same time, argued that the condition of the parking lot was open and obvious and not unreasonably dangerous. The trial court granted the motion for summary disposition, finding that defendant had no notice of the alleged hazard, that no genuine issue of material fact existed with respect to whether the condition of the parking lot was open and obvious, and that no genuine issue of material fact existed in regard to whether any special aspects made the condition unreasonably dangerous, in spite of its open and obvious condition. The trial court, in relation to the open and obvious danger analysis, relied on the fact that plaintiff had testified in her deposition that before her fall, she saw others get out of the vehicle and hang onto the car. The court also relied on plaintiff's testimony that she had lived in Michigan all her life and had witnessed many snowfalls. The trial court noted that, "[a]s a lifelong resident of Michigan, she should have been aware that ice frequently forms beneath snow during snowy December nights."
This Court reviews de novo a trial court's decision on a motion for summary disposition. Koenig v. South Haven, 460 Mich. 667, 674, 597 N.W.2d 99 (1999) (opinion by Taylor, J.). Issues of law are also reviewed de novo. Mahaffey v. Attorney General, 222 Mich.App. 325, 334, 564 N.W.2d 104 (1997).
MCR 2.116(C)(10) provides for summary disposition where there is no genuine issue as to any material fact and the moving party is entitled to judgment or partial judgment as a matter of law. "A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law." Quinto v. Cross & Peters Co., 451 Mich. 358, 362, 547 N.W.2d 314 (1996). In addition, all affidavits, pleadings, depositions, admissions, and other documentary evidence filed in the action or submitted by the parties are viewed in a light most favorable to the party opposing the motion. "Where the burden of proof at trial on a dispositive issue rests on a nonmoving party, the nonmoving party may not rely on mere allegations or denials in the pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists." Id. Where the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted. Id. at 363, 547 N.W.2d 314. "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) (citations omitted).
A premises owner owes, in general, 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). This duty, however, does not generally encompass removal of open and obvious dangers. Id. Where the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, the 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., quoting Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 96, 485 N.W.2d 676 (1992). Whether a particular danger is open and obvious depends on whether it is reasonable to expect an average user of ordinary intelligence to discover the danger upon casual inspection. Eason v. Coggins Mem. Christian Methodist Episcopal Church, 210 Mich.App. 261, 264, 532 N.W.2d 882 (1995). In determining whether an alleged dangerous condition is open and obvious, the focus is on the characteristics of a reasonably prudent person. Mann v. Shusteric Enterprises, Inc., 470 Mich. 320, 329 n. 10, 683 N.W.2d 573 (2004). Because the test is objective, courts look not to whether a particular plaintiff should have known that the condition was hazardous, but to whether a reasonable person in his position would foresee the danger. Joyce v. Rubin, 249 Mich.App. 231, 238-239, 642 N.W.2d 360 (2002). "In sum, the general rule is that a premises possessor is not required to protect an invitee from open and obvious dangers, but, if special aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to protect invitees from that risk." Lugo, supra at 517, 629 N.W.2d 384. Only those special aspects that create a uniquely high likelihood of harm or severity of harm if the risk or hazard is not avoided will serve to remove that condition from the open and obvious danger doctrine. Id. at 518-519, 629 N.W.2d 384.
Our Supreme Court in Mann recently addressed the matter of snow and ice accumulation in the context of the open and obvious danger doctrine. The Court ruled:
Under Lugo, a premises possessor must protect an invitee against an "open and obvious" danger only if such danger contains "special aspects" that make it "unreasonably dangerous." Lugo, supra at 517, 629 N.W.2d 384. Thus, in the context of an accumulation of snow and ice, Lugo means that, when such an accumulation is "open and obvious," a premises possessor must "take reasonable measures within a reasonable period of time after the accumulation of snow and ice to diminish the hazard of injury to [plaintiff]" only if there is some "special aspect" that makes such accumulation "unreasonably dangerous." [Mann, supra at 332, 683 N.W.2d 573 (emphasis added).]
The language from Mann emphasized by us makes clear that not all snow and ice accumulation is open and obvious. In Quinlivan v. The Great Atlantic & Pacific Tea Co., Inc., 395 Mich. 244, 260-261, 235 N.W.2d 732 (1975), the Supreme Court rejected "the prominently cited notion that ice and snow hazards are obvious to all and therefore may not give rise to liability." The Mann decision affected Quinlivan as directly indicated in Mann, in which the Court stated:
Quinlivan ... must be understood in light of this...
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