Livings v. Sage's Inv. Grp., LLC, 159692

CourtSupreme Court of Michigan
Writing for the CourtViviano, J.
Parties ESTATE OF Donna LIVINGS, Plaintiff-Appellee, v. SAGE'S INVESTMENT GROUP, LLC, Defendant-Appellant, and T & J Landscaping & Snow Removal, Inc., and Grand Dimitre's of Eastpointe Family Dining, Defendants.
Docket NumberNo. 159692,159692
Decision Date30 June 2021

507 Mich. 328
968 N.W.2d 397

ESTATE OF Donna LIVINGS, Plaintiff-Appellee,
v.
SAGE'S INVESTMENT GROUP, LLC, Defendant-Appellant,
and
T & J Landscaping & Snow Removal, Inc., and Grand Dimitre's of Eastpointe Family Dining, Defendants.

No. 159692

Supreme Court of Michigan.

Argued on application for leave to appeal November 10, 2020
Decided June 30, 2021


Baratta & Baratta, PC, Mount Clemens (by Christopher R. Baratta ) for the estate of Donna Livings.

Segal McCambridge Singer & Mahoney, Southfield (by David J. Yates and Matin Fallahi ) for Sage's Investment Group, LLC.

Donald M. Fulkerson, Westland, for the Michigan Association for Justice, amicus curiae.

BEFORE THE ENTIRE BENCH (except Welch, J.)

Viviano, J.

507 Mich. 332

Michigan, we have explained, "is prone to winter," and "with winter comes snow and ice accumulations ...." Hoffner v. Lanctoe , 492 Mich. 450, 454, 821 N.W.2d 88 (2012). But for most Michiganders, winter weather does not mean an automatic holiday from their jobs. Therefore, snow, ice, and other wintry elements sometimes must be confronted to get to work. That is what happened in this case, when Donna Livings1 slipped on ice in her employer's

968 N.W.2d 400

parking lot as she headed in to begin her shift. Generally, when an injury occurs because of an open and obvious condition, landowners in Michigan are not liable because they have no duty to protect against those hazards. An

507 Mich. 333

exception exists, however, when the hazard is effectively unavoidable. The question here is whether a hazard one must confront to enter his or her place of employment should be considered effectively unavoidable. We hold that an open and obvious condition can be deemed effectively unavoidable when a plaintiff must confront it to enter his or her place of employment for work purposes. However, in assessing this question, it is still necessary to consider whether any alternatives were available that a reasonable individual in the plaintiff's circumstances would have used to avoid the condition. In the present case, we agree with the Court of Appeals that a genuine issue of material fact exists regarding whether the snow and ice were effectively unavoidable.

I. FACTS

On February 21, 2014, Livings pulled into the parking lot at her workplace, Grand Dimitre's of Eastpointe Family Dining, which leased the space from defendant Sage's Investment Group, LLC.2 She testified that she arrived shortly before 6:00 a.m. and parked in the employee lot, choosing the closest space not covered with snow, about 70 feet from the back door. Another employee had already arrived by that time and had parked in the front lot for customers. Testimony from Livings, another employee, and Ayman Shkoukani, one of the restaurant's owners, indicated that employees

507 Mich. 334

were required to park in the rear lot and use the back door to enter the building. The whole lot, Livings said, was covered with packed snow and ice and looked like "a sheet of ice." Neither Livings nor Debra Buck, a fellow employee who had arrived earlier that morning, saw any salt on the lot. Buck testified that she also struggled to cross the parking lot because of the conditions.

After parking, Livings got out of her car, took a few steps, and fell. When she tried to stand up, she kept slipping. She attempted to crawl across the lot but could not reach the back door. Eventually, she made it to the front door, called the restaurant, and was let in by Buck. In pain the following day, Livings sought medical treatment and subsequently underwent three surgeries.

Livings sued defendant under a premises-liability theory, claiming that it failed to protect her from the dangerous accumulation of snow and ice in the lot. In the trial court, defendant moved for summary disposition under MCR 2.116(C)(10). It argued that the snow and ice were open and obvious and that Livings could have avoided these conditions by parking elsewhere and using the front door. The trial court denied the motion, finding that a question of fact existed as to whether Livings would have been permitted to use the front parking lot and entrance.

The Court of Appeals affirmed in a split decision.

968 N.W.2d 401

Livings v. Sage's Investment Group, LLC , unpublished per curiam opinion of the Court of Appeals, issued February 26, 2019 (Docket No. 339152), 2019 WL 938844. The majority noted that the ice was open and obvious, as Livings admitted to seeing it. Id. at 9. But the majority concluded that a genuine issue of material fact existed regarding whether the hazard was effectively avoidable.

507 Mich. 335

Id. at 9-11. The majority explained that the front and rear lots were connected as one and, according to both Livings and Buck, the entire surface was covered in snow and ice. Id. at 10. The majority held that whether the hazard was effectively unavoidable constituted a question for the fact-finder. Id. at 10-11. The trial court's decision was affirmed. Id.

Judge SHAPIRO concurred, explaining that it would have been inconsistent with "substantive justice" to hold, as Judge TUKEL ’s partial dissent would have done, that the condition was avoidable because Livings "could have skipped work and suffered the consequences to her employment." Id. at 1 ( SHAPIRO , J., concurring). The partial dissent cited caselaw suggesting that a plaintiff's employment is not a relevant consideration in determining whether a hazard was effectively unavoidable. The exception to this rule, according to the dissent, applies only when a court deems, "for public policy reasons," that the plaintiff's job is too important to miss, as when it involves "the safety and well-being of others ...." Id. at 3-4 ( TUKEL , J., concurring in part and dissenting in part). Judge TUKEL concluded that Livings's job "lack[ed] such vital, critical importance or urgency." Id. at 5. The "ramifications" of missing a shift in a restaurant were simply not the same as they were in the healthcare field and, even so, Livings's "presence at the restaurant was not absolutely necessary to her employer or the restaurant's patrons." Id. at 4 & n. 5. Thus, because Livings could have skipped work rather than confront the snow and ice, the hazard was not effectively unavoidable.

Defendant sought leave to appeal, and we ordered argument on the application to address "(1) whether the plaintiff's employment is a relevant consideration in determining whether a condition is effectively unavoidable"

507 Mich. 336

and "(2) whether there was a question of fact concerning whether the parking lot constituted an effectively unavoidable condition." Livings v. Sage's Investment Group, LLC , 505 Mich. 985, 985, 937 N.W.2d 694 (2020).

II. STANDARD OF REVIEW

We review de novo a trial court's decision on a motion for summary disposition. Bank of America, NA v. First American Title Ins. Co. , 499 Mich. 74, 84-85, 878 N.W.2d 816 (2016). "A motion brought under MCR 2.116(C)(10) ‘tests the factual sufficiency of the complaint.’ In resolving such a motion, ‘a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties ... in the light most favorable to the party opposing the motion.’ " Id. at 85, 878 N.W.2d 816 (citations omitted). A movant is not entitled to judgment as a matter of law if the evidence establishes a genuine issue of material fact. Id.

III. ANALYSIS

To resolve this case, we must decide whether an open and obvious hazard can be considered effectively unavoidable when a plaintiff must confront it to enter his or her place of employment for work purposes. We hold that it can. But, in analyzing the issue, it is relevant whether a reasonable individual in Livings's circumstances would have used any alternatives to avoid confronting the hazard. Given this conclusion, we hold that a genuine issue of material fact exists in this case as to

968 N.W.2d 402

whether the hazard Livings confronted was effectively unavoidable.

A. EFFECTIVELY UNAVOIDABLE

507 Mich. 337

To prevail on a premises-liability claim, plaintiffs must establish that defendants owed them a duty of care. Riddle v. McLouth Steel Prod. Corp. , 440 Mich. 85, 95-96, 485 N.W.2d 676 (1992).3 The duty element represents the legal obligation that arises from the relationship between the parties. Bertrand v. Alan Ford, Inc. , 449 Mich. 606, 614, 537 N.W.2d 185 (1995). In the present context, a possessor of land owes a duty to exercise reasonable care to protect invitees from dangerous conditions on the land. Riddle , 440 Mich. at 90, 485 N.W.2d 676. But this duty does not extend to dangerous conditions that are open and obvious. Id. at 95-96, 485 N.W.2d 676. Put differently, "where the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover...

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4 practice notes
  • In re Greiff, SC 161535
    • United States
    • Supreme Court of Michigan
    • June 10, 2022
    ...can provide persuasive authority when developing Michigan's common law, see, e.g., Estate of Livings v Sage's Investment Group, LLC, 507 Mich. 328, 341-342; 968 N.W.2d 397 (2021), but it is generally inappropriate to rely on such authority when interpreting a comprehensive Michigan statutor......
  • Grunau v. E. Lansing Athletic Club, Inc., 356233
    • United States
    • Court of Appeal of Michigan (US)
    • April 14, 2022
    ...on the land." Lugo v Ameritech Inc, 464 Mich. 512, 516; 629 N.W.2d 384 (2001). See also Estate of Livings v Sage's Investment Group LLC, 507 Mich. 328, 337-338; 968 N.W.2d 397 (2021). This duty is breached if a premises possessor "knows or should know of a dangerous condition on the premise......
  • Premises Liability Black ice Parking lot.
    • United States
    • Michigan Lawyers Weekly June 06, 2022
    • June 6, 2022
    ...Court created an exception to the stringent 'effectively unavoidable' rule, holding in Estate of Livings v Sage's Investment Group, LLC, 507 Mich 328, 349; 968 NW2d 397 (2021), that 'a hazard can be deemed effectively unavoidable if the plaintiff confronted it to enter his or her place of e......
  • Pinsky v. Kroger Co. of Mich., SC: 163430
    • United States
    • Supreme Court of Michigan
    • April 22, 2022
    ...of fact concerning whether the condition was unreasonably dangerous; (3) under Estate of Livings v Sage's Investment Group, LLC , 507 Mich. 328, 968 N.W.2d 397 (2021), Lugo v Ameritech Corp, Inc , 464 Mich. 512, 629 N.W.2d 384 (2001), and 2 Restatement Torts, 2d, § 343A, the open and obviou......
1 cases
  • In re Greiff, SC 161535
    • United States
    • Supreme Court of Michigan
    • June 10, 2022
    ...can provide persuasive authority when developing Michigan's common law, see, e.g., Estate of Livings v Sage's Investment Group, LLC, 507 Mich. 328, 341-342; 968 N.W.2d 397 (2021), but it is generally inappropriate to rely on such authority when interpreting a comprehensive Michigan statutor......

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