Lymon v. Freedland
| Decision Date | 29 March 2016 |
| Docket Number | Docket No. 323926. |
| Citation | 314 Mich.App. 746,887 N.W.2d 456 |
| Parties | LYMON v. FREEDLAND. |
| Court | Court of Appeal of Michigan — District of US |
Bredell and Bredell, Ypsilanti (by John H. Bredell ), for Joyanna Lymon.
Hom, Killeen, Arene, Hoehn & Bachrach (by Joseph K. Bachrach ) and Mary T. Nemeth, PC (by Mary T. Nemeth ), for Karen Freedland, Jim Freedland, and the Karen Freedland Trust.
Before: SHAPIRO, P.J., and O'CONNELL and BORRELLO, JJ.
In this premises liability action, on June 5, 2014, the trial court entered an order denying defendants' motion for summary disposition under MCR 2.116(C)(10). Subsequently, the parties entered into a stipulation, forgoing trial and finalizing the case to allow defendants to appeal the June 5, 2014 order as of right. The parties agreed that the total amount of plaintiff's damages, prejudgment interest, costs, and attorney fees was $330,000, payment contingent on the outcome of defendants' appeal. Pursuant to the stipulation, on September 25, 2014, the trial court entered judgment in favor of plaintiff conditioned on the premise that defendants preserved their right to appeal. Defendants now appeal the judgment as of right, arguing that the trial court erred by denying their motion for summary disposition. For the reasons set forth in this opinion, we affirm.
In November 2012, Gloria Freedland moved from an assisted-living center into her daughter Karen Freedland's home in Ann Arbor (Freedland home). Gloria was 84 years old and suffered from dementia and Parkinson's disease
. Karen contracted with Interim Health Care (Interim), a healthcare staffing agency owned by Don Ottomeyer, to have healthcare aides provide in-home care for Gloria. At the time, plaintiff and Nadia Hamad worked for Interim as certified nursing aides. From November 2012 to January 2013, plaintiff worked two to three days per week for 15 hours per day at the Freedland home providing round-the-clock care for Gloria. Because of her health condition, Gloria needed constant care and could not be left alone.
The Freedland home was located on a hill and had two levels. A steep asphalt driveway located to the right of the home led to a two-stall attached garage. The garage had a door that provided access to the home and the lower level of the home where Gloria stayed. The healthcare aides entered and exited the home through the garage.
On January 1, 2013, plaintiff worked at the Freedland home. Plaintiff parked her vehicle on the street because her vehicle had previously “bottomed out” when she had attempted to traverse the driveway at the home. Plaintiff worked overnight that day and recalled that there had been rain the previous few days as well as “slippery slush” on the driveway. Plaintiff mentioned the condition of the driveway to Karen, and Karen instructed plaintiff to drive all the way up the driveway to avoid the slippery conditions. However, plaintiff explained that her vehicle could not make it up the driveway. Plaintiff left the Freedland residence on the morning of January 2, 2013, and she had to do a “penguin waddle” down the driveway to get to her vehicle. Plaintiff informed Kristen Lavagnino, the office manager at Interim, that the Freedland's driveway was “getting bad.”
Plaintiff testified that it snowed from Tuesday, January 2, 2013, to Thursday, January 4, 2013. Plaintiff was scheduled to relieve Hamad for the overnight shift on January 4, 2013, and plaintiff learned that Karen was scheduled to be out of town for the weekend. Plaintiff arrived at the Freedland residence at about 6:00 p.m. on January 4, 2013. It was dark, but plaintiff observed that the driveway was “by far” in worse shape than it had been two days before. The driveway was covered in snow with ice build-up underneath. Plaintiff testified that she could tell the driveway and the yard apart, but she could not walk on the yard because it was on an incline. Plaintiff stated that the only way the yard could be safely traversed was “with some ski sticks maybe.” Plaintiff parked on the street and proceeded to walk up the driveway toward the home. About halfway up the driveway, plaintiff slipped and fell. Plaintiff felt “a numbing, tingling like sensation,” but she proceeded to get up and walk to the house. Plaintiff entered and briefly spoke with Hamad, who then departed the premises. After Hamad left, plaintiff explained that she started feeling “excruciating pain,” so she called Ottomeyer and informed him that she had an emergency. Ottomeyer told plaintiff that he would drive to the Freedland home, but he stated that it would take about 20 minutes. Plaintiff could not wait for Ottomeyer, so she called her boyfriend, Desmond Jones, and asked him to come help her. Plaintiff testified that she then went into the garage and eventually ended up outside the home on the flat part of the driveway with Jones. Upon his arrival, Jones attempted to move plaintiff down the driveway to his vehicle in a sled, but he failed. At some point, plaintiff called 911, and EMT arrived at the scene with two vehicles. Plaintiff suffered a severely fractured tibia and fibula that required surgery and months of rehabilitation. Plaintiff was unable to work, and at the time of her deposition, plaintiff needed to use a walker to ambulate.
Several witnesses testified about the condition of the driveway at the Freedland residence. Hamad testified that Karen never cleared or salted the driveway and that it was icy on numerous occasions; however, Hamad stated that the top landing part of the driveway where people walked to the garage was flat, and sometimes it was shoveled. Hamad explained that on January 4, 2014, the driveway was “cleared a little,” but “there were good sheets of ice” on the driveway. She further stated that it was not salted and that it was “very icy and slippery.” Hamad testified that plaintiff relieved her that evening, but plaintiff did not mention that she fell. Shortly after Hamad left the residence, she received a call from Ottomeyer, who asked her to return for the overnight shift to cover for plaintiff. Hamad agreed, and when she returned to the home, she observed EMT vehicles; plaintiff was on a stretcher screaming in pain. Hamad slipped but did not fall on the driveway and explained that she walked “on the side where the snow [was] so I didn't fall.” Hamad explained that it was possible to get to the home without walking on the driveway because “you can always walk up the sides where there's snow so that you don't slip on ice, which is mostly in the middle.” However, Hamad agreed that at some point a person would have to walk on the top part of the driveway to get to the door. Hamad explained that the top part of the driveway was flat and had not been as icy as the remainder of the driveway. Hamad also agreed that there was a bush in the yard that was near the driveway so that there was a very narrow path between the bush and the driveway.
Jones and Ottomeyer also testified about the condition of the driveway. Jones testified that the driveway was covered in ice that was probably over 1–inch thick. Jones attempted to drive his vehicle up the driveway, but it slid back down. Therefore, Jones explained that he walked on the snow-covered grass next to the driveway to get to the home so that he could avoid walking on the driveway. Ottomeyer testified that he and his wife arrived at the Freedland home and observed that the driveway was icy. Both Ottomeyer and his wife walked on the yard next to the driveway to get to the Freedland home because the snow-covered grass was “not as slick.” Ottomeyer testified that the driveway was always icy and slippery and that he “had asked all ... caregivers to walk on the side [of the driveway] on the grass because it's not as slick.” Ottomeyer explained that plaintiff was instructed to walk on the grass to get to the Freedland home, and he testified that plaintiff stated that she should have walked up the side on the grass. However, Ottomeyer did not recall whether the bush near the driveway obstructed part of this route.
Lavagnino testified that she went to the Freedland residence for a home visit sometime before the accident and that the driveway was slippery on that occasion. Lavagnino also testified that plaintiff raised concerns about the driveway a few days before the accident. Additionally, Lavagnino testified that she informed Ottomeyer about the slippery driveway, but she stated that she did not call Karen because Karen was going out of town. Lavagnino testified that Karen had previously instructed Interim's healthcare workers to park at the top of the driveway to avoid the ice. Lavagnino testified that it was hazardous to walk up the driveway and explained that the eaves on the roof of the home ran water to the middle of the driveway where plaintiff fell. Lavagnino agreed that a person could walk on the snow next to the driveway to avoid the driveway, but she also agreed that one would probably have to walk on part of the driveway to get around foliage that abutted the driveway.
On April 29, 2013, plaintiff commenced this action alleging that defendants negligently maintained the driveway at their premises and that traversing the driveway was effectively unavoidable for plaintiff in the course of her employment as a home health aide.
Following discovery, on May 9, 2014, defendants moved for summary disposition pursuant to MCR 2.116(C)(10). Defendants argued that plaintiff's claim failed because the danger posed by the driveway was open and obvious and because there were no special circumstances that applied. In particular, defendants argued that the driveway did not create an unreasonable risk of severe injury or death because snow and ice cannot constitute an unreasonable risk of severe injury or death. In addition, defendants argued that the danger was not effectively unavoidable because plaintiff could have taken a different route to the house by walking...
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