Royce v. Chatwell Club Apartments

• Decision Date: 07 August 2007
• Docket Number: Docket No. 266682.
• Citation: 740 N.W.2d 547,276 Mich. App. 389
• Parties: Theresa ROYCE and Carl Royce, Plaintiffs-Appellees/Cross-Appellants v. CHATWELL CLUB APARTMENTS, a/k/a Tobin Group, Defendant-Appellant/Cross-Appellee.
• Court: Court of Appeal of Michigan — District of US

740 N.W.2d 547

276 Mich. App. 389

Theresa ROYCE and Carl Royce, Plaintiffs-Appellees/Cross-Appellants v. CHATWELL CLUB APARTMENTS, a/k/a Tobin Group, Defendant-Appellant/Cross-Appellee.

Docket No. 266682.

Court of Appeals of Michigan.

Submitted June 6, 2007, at Detroit.

Decided August 7, 2007, at 9:00 a.m.

Released for Publication October 26, 2007.

Law Offices of Samuel I. Bernstein (by Michael A. Weisserman), Farmington Hills, for the plaintiffs.

Garan Lucow & Miller, P.C. (by Caryn A. Gordon), Detroit, for the defendant.

Before: SERVITTO, P.J., and JANSEN and SCHUETTE, JJ.

SERVITTO, P.J.

Defendant appeals by leave granted the circuit court's order denying in part its motion for summary disposition in this premises liability action involving a slip and fall. Plaintiffs cross-appeal as of right the same order granting in part defendant's motion for summary disposition under MCR 2.116(C)(10). Because the slippery condition of the parking lot where the fall occurred was open and obvious and no special aspect making the condition unreasonably dangerous existed, and because defendant could not rely on the open and obvious danger doctrine to avoid its statutory duty under MCL 554.139, we reverse and remand for further proceedings.

This case arises out of a slip and fall that occurred in defendant's parking lot on February 5, 2003, while plaintiffs resided at defendant's apartment complex. Plaintiff Theresa Royce¹ left her apartment at approximately 7:00 that evening intending to get into her vehicle, which was parked in front of her apartment. It was dark outside and snow covered the ground. As she stepped off the sidewalk into the parking lot, she slipped on snow-covered black ice and slid underneath her car. She did not see the ice before she fell and discovered it only after she tried to get up. She was seriously injured and ultimately underwent surgery on her left knee.

Defendant moved for summary disposition, arguing that the black ice in the parking lot was an open and obvious condition and that a lessor's duty under MCL 554.139 does not extend to snow and ice removal. The trial court denied defendant's motion for summary disposition as it pertained to plaintiff's common-law premises liability claim, but granted summary disposition to defendant on plaintiff's statutory duty claim. This appeal followed.

We review de novo a trial court's decision on a motion for summary disposition. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998); Willis v. Deerfield Twp., 257 Mich.App. 541, 548, 669 N.W.2d 279 (2003). A motion for summary disposition under MCR 2.116(C)(10) is properly granted if no factual dispute exists, thus entitling the moving party to judgment as a matter of law. Rice v. Auto Club Ins. Ass'n, 252 Mich. App. 25, 31, 651 N.W.2d 188 (2002). In deciding a motion brought under subrule C(10), a court considers all the evidence, affidavits, pleadings, and admissions in the light most favorable to the nonmoving party. Id. at 30-31, 651 N.W.2d 188.

Defendant argues that the trial court erred by denying its motion for summary disposition regarding plaintiff's common-law claim because the dangerous condition of its premises was open and obvious and there existed no special aspects making the condition unreasonably dangerous. "In general, a premises possessor owes a duty to an invitee[²] 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 does not extend to open and obvious dangers, however, unless a special aspect of the condition makes even an open and obvious risk unreasonably dangerous. Id. at 517, 629 N.W.2d 384. In such cases, the premises possessor has a duty to take reasonable measures to protect invitees from that risk. Id.

"Whether a danger is open and obvious depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered the danger on casual inspection." Teufel v. Watkins, 267 Mich.App. 425, 427, 705 N.W.2d 164 (2005). Generally, the hazard presented by snow and ice is open and obvious, and the landowner has no duty to warn of or remove the hazard. Id. at 428, 705 N.W.2d 164.

In Kenny v. Kaatz Funeral Home, Inc., 264 Mich.App. 99, 114, 689 N.W.2d 737 (2004) (Kenny I), rev'd 472 Mich. 929, 697 N.W.2d 526 (2005), this Court reversed the trial court's order granting the defendant funeral home summary disposition based on the open and obvious danger doctrine when the plaintiff slipped and fell on snow-covered black ice in the defendant's parking lot. In Kenny v. Kaatz Funeral Home, Inc., 472 Mich. 929, 697 N.W.2d 526 (2005) (Kenny II), however, our Supreme Court reversed this Court's decision for the reasons stated in Judge GRIFFIN'S dissent in Kenny I. In that case, the plaintiff argued that the open and obvious danger doctrine did not apply because the black ice took on the color of the pavement beneath the ice and was not easily visible, the ice was virtually undetectable in the darkness, and the ice was covered with snow. Kenny I, supra at 118, 689 N.W.2d 737 (GRIFFIN, J., dissenting). In his dissenting opinion, Judge Griffin adopted the trial court's reasoning, which noted that the plaintiff was 79 years old, had lived in Michigan her entire life, and had witnessed many snowfalls. Therefore, the trial court concluded that she should have been aware that ice frequently forms underneath snow. The trial court also noted that the plaintiff observed other persons traveling with her grab onto the car to keep their balance after getting out of the car. For these reasons, Judge GRIFFIN opined that the hazardous condition of the parking lot was open and obvious and that no special aspect existed that created a uniquely high likelihood or severity of harm. Id. at 118-122, 689 N.W.2d 737.

In Ververis v. Hartfield Lanes (On Remand), 271 Mich.App. 61, 718 N.W.2d 382 (2006), this Court addressed whether the potential danger of a snow-covered surface is open and obvious in and of itself even absent some other factor indicating that the surface is slippery, such as the fact that persons held onto a car for balance in Kenny I. Regarding the trial court's opinion in Kenny I, later adopted by Judge GRIFFIN and our Supreme Court, this Court stated:

Thus, the trial court's reasoning suggested two possible rules. First, a snow-covered surface might always, by its very nature, present an open and obvious danger because it is likely to be slippery as a result of underlying ice or for some other reason. Alternatively, a snow-covered surface would not present an open and obvious danger unless there is some other reason, in the facts of a particular case, that would lead a plaintiff to reasonably conclude that it is slippery. [Ververis, supra at 65, 718 N.W.2d 382.]

The Ververis Court noted that the plaintiff in that case slipped and fell on a snow-covered surface while entering a bowling alley and that no other independent factor alerted him to the fact that the surface was slippery. Id. at 63, 66, 718 N.W.2d 382. This Court considered orders of our Supreme Court based on Kenny II and concluded as a matter of law that "by its very nature, a snow-covered surface presents an open and obvious danger because of the high probability that it may be slippery." Id. at 67, 718 N.W.2d 382. Thus, this Court held that the defendant bowling alley was entitled to a directed verdict even though no independent factor alerted the plaintiff to the danger. Id.

Applying the foregoing rule in the instant case, the potential danger posed by the snow-covered parking lot was open and obvious even absent some other factor suggesting that the surface was slippery. Plaintiff testified that snow covered the pavement and that her foot began to slide immediately when it touched the ground. She further testified:

A. I then fell on the right side of my right leg catching myself with my hand, I was just sliding all over the place. Before I knew it I was under the car. I couldn't stop sliding. It was just like I hit a sheet of ice.

* * *

Q. And I think you indicated for me earlier that you had no idea what caused you to fall until you were down on the ground?

A. Absolutely.

Q. And what did you determine had caused you to fall?

A. I was trying to gather myself out from under the car and it was just nothing but ice. When I started moving the snow it was just ice, just like a sheet of ice like this. Just ice everywhere under me.

Under Ververis, supra at 63, 718 N.W.2d 382, the potential slipperiness of the snow-covered parking lot was an open and obvious danger as a matter of law.

The question becomes, then, whether there existed a special aspect of the slippery condition of the parking lot that made the risk unreasonably dangerous and gave rise to a duty on behalf of defendant to take reasonable measures to protect invitees from the risk. Lugo, supra at 517, 629 N.W.2d 384. Defendant contends that the fact that plaintiff's vehicle was parked next to a parking space for the handicapped did not constitute a special aspect making the condition unreasonably dangerous.

In Lugo, supra at 517-518, 629 N.W.2d 384, our Supreme Court stated:

[W]ith regard to open and obvious dangers, the critical question is whether there is evidence that creates a genuine issue of material fact regarding whether there are truly "special aspects" of the open and obvious condition that differentiate the risk from typical open and obvious risks so as to create an unreasonable risk of harm, i.e., whether the "special aspect" of the condition should prevail in imposing liability upon the defendant or the openness and obviousness of the condition should prevail in barring liability.

The Lugo Court stated that a special aspect creating an unreasonable risk of harm may exist where, for example, the floor of the sole exit of...