Nathan v. David Leader Mgmt.

• Decision Date: 04 August 2022
• Docket Number: 357420
• Parties: KENNETH NATHAN, the Chapter 7 Trustee of the Bankruptcy Estate of LORETTA CHARLES, Plaintiff-Appellee, v. DAVID LEADER MANAGEMENT, INC, and BRISTOL VILLAGE ASSOCIATES LP, doing business as BRISTOL VILLAGE APARTMENTS, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

KENNETH NATHAN, the Chapter 7 Trustee of the Bankruptcy Estate of LORETTA CHARLES, Plaintiff-Appellee,
v.
DAVID LEADER MANAGEMENT, INC, and BRISTOL VILLAGE ASSOCIATES LP, doing business as BRISTOL VILLAGE APARTMENTS, Defendants-Appellants.

No. 357420

Court of Appeals of Michigan

August 4, 2022

Macomb Circuit Court LC No. 2020-003180-NO

Before: SHAPIRO, P.J., and RICK and GARRETT, JJ.

GARRETT, J.

Loretta Charles slipped and fell on snow or ice after exiting one of defendants' apartment buildings. Plaintiff brought suit against defendants, asserting claims of premises liability and ordinary negligence.^[1] The trial court denied defendants' motion for summary disposition brought under MCR 2.116(C)(10) (no genuine issue of material fact). We agree with defendants that plaintiff's claim sounds exclusively in premises liability, such that the negligence claim should be dismissed. However, plaintiff's premises liability claim may proceed because there remains a question of fact whether the condition that Charles confronted was effectively unavoidable and whether defendants' breach of a duty caused Charles's injuries. Accordingly, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL HISTORY

In February 2020, Loretta Charles served as the caretaker for her elderly mother, who lived at Bristol Village. On the morning of February 27, 2020, Charles left her mother's apartment to go to an appointment with her attorney. It had snowed the day before, and Charles testified that it

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was still snowing that morning. The apartment building had an exit in both the front and back. The walkways leading from the front and back exits were both completely covered with ice. Charles attempted to get to the street by walking in the snow-covered grass alongside the front walkway, but she slipped and fell after putting her right foot down.

Plaintiff brought suit against defendants for premises liability and ordinary negligence, alleging that Charles slipped and fell on ice leaving the apartment building because defendants negligently failed to salt and shovel the entranceway. Following discovery, defendants moved for summary disposition. Defendants argued that plaintiff's claim sounded exclusively in premises liability, and that the premises liability should be dismissed because plaintiff failed to establish causation and the claim was barred by the open and obvious doctrine. The trial court denied defendants' motion, concluding that Charles's step down from the porch to avoid the icy sidewalk was itself a dangerous condition and that whether the condition was "unavoidable and unreasonably dangerous" was a fact question for the jury. This appeal followed by leave granted.^[2]

II. ORDINARY NEGLIGENCE CLAIM

Defendants first argue that plaintiff's claim sounds exclusively in premises liability, such that the trial court should have dismissed the ordinary negligence claim raised in plaintiff's complaint.

Michigan law distinguishes between claims of ordinary negligence and premises liability. Buhalis v Trinity Continuing Care Servs, 296 Mich.App. 685, 692; 822 N.W.2d 254 (2012). "If the plaintiff's injury arose from an allegedly dangerous condition on the land, the action sounds in premises liability rather than ordinary negligence; this is true even when the plaintiff alleges that the premises possessor created the condition giving rise to the plaintiff's injury." Buhalis, 296 Mich.App. at 692. However, an ordinary negligence claim may be brought "for the overt acts of a premises owner on his or her premises." Kachudas v Invaders Self Auto Wash, Inc, 486 Mich. 913, 914; 781 N.W.2d 806 (2010), citing Laier, 266 Mich.App. 482.

Plaintiff rests his ordinary negligence claim on the fact that defendants' employees did not sufficiently apply a salting agent to the walkways or clear the drifting snow. These factual allegations relate to the creation of a dangerous condition on the premises caused by defendants' failure to act, and they do not support an independent claim for ordinary negligence. In Jeffrey-Moise v Williamsburg Towne Houses Coop, Inc, 336 Mich.App. 616, 621; 971 N.W.2d 716 (2021), a similar case involving a slip-and-fall on an icy community walkway, we held that the plaintiff's claim sounded exclusively in premises liability:

Plaintiff alleges that a condition on defendant's land i.e., a patch of black ice on the sidewalk, constituted a dangerous condition on the property that gave rise to her injury. Because plaintiff's claim is based on defendant's duty as the possessor of the land on which she fell and not on defendant's ability to conform to a particular standard of care, we treat plaintiff's claim as one of premises liability. Although

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plaintiff alleges that the dangerous condition was created by the actions of defendant or its employees-or more accurately, their failure to act-that allegation does not transform a premises-liability action into one of ordinary negligence. [Jeffrey-Moise, 336 Mich.App. at 625 (citation omitted).]

This reasoning applies equally to plaintiff's allegations in the present case. Accordingly, plaintiff's complaint sounds exclusively in premises liability, and defendants were entitled to summary disposition on plaintiff's claim of ordinary negligence.

III. OPEN AND OBVIOUS DOCTRINE

Defendants next argue that the trial court erred by not dismissing plaintiff's premises liability claim because the icy condition was open and obvious and no special aspects made the condition effectively unavoidable or unreasonably dangerous.

This Court reviews a trial court's decision on a motion for summary disposition made under MCR 2.116(C)(10) de novo. Dressel v Ameribank, 468 Mich. 557, 561; 664 N.W.2d 151 (2003). Under MCR 2.116(C)(10), the party moving for summary disposition is entitled to judgment as a matter of law when, "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact." The reviewing court considers affidavits, pleadings, depositions, and other evidence in the light most favorable to the non-moving party. Maiden v Rozwood, 461 Mich. 109, 120; 597 N.W.2d 817 (1999). "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).

"In a premises liability action, a plaintiff must prove the elements of negligence: (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff's injury, and (4) the plaintiff suffered damages." Benton v Dart Props, Inc, 270 Mich.App. 437, 440; 715 N.W.2d 335 (2006). Whether a landowner owes a duty to a visitor depends on that visitor's status as either a trespasser, licensee, or invitee. Stitt v Holland Abundant Life Fellowship, 462 Mich. 591, 596; 614 N.W.2d 88 (2000). A premises owner owes the greatest duty of care to an invitee. Id. at 597.^[3]

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"In general, a premises possessor owes 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). However, this duty generally does not extend to open and obvious dangers. Id. A condition is open and obvious if "an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection." Novotney v Burger King Corp, 198 Mich.App. 470, 475; 499 N.W.2d 379 (1993). This inquiry is objective, focusing on "whether a reasonable person in the plaintiff's position...