Slaughter v. Blarney Castle

• Decision Date: 06 November 2008
• Docket Number: Docket No. 283266.
• Citation: 760 N.W.2d 287,281 Mich. App. 474
• Parties: SLAUGHTER v. BLARNEY CASTLE OIL COMPANY.
• Court: Court of Appeal of Michigan — District of US

760 N.W.2d 287

281 Mich. App. 474

SLAUGHTER v. BLARNEY CASTLE OIL COMPANY.

Docket No. 283266.

Court of Appeals of Michigan.

Submitted October 14, 2008, at Lansing.

Decided November 6, 2008, at 9:00 a.m.

Morrissey, Bove & Ebbott, P.C., Flint (by Christopher J. Ebbott), for the plaintiff.

Warner Norcross & Judd LLP, Grand Rapids (by F. William McKee and Sarah Riley Howard) for the defendant.

Before: BECKERING, P.J., and BORRELLO and DAVIS, JJ.

BECKERING, P.J.

In this premises liability action, defendant appeals by leave granted the trial court's order denying its motion for summary disposition, limited to the issue whether black ice without the presence of snow is an open and obvious danger. We affirm. This appeal has been decided without oral argument pursuant to MCR 7.214(E).

I. PERTINENT FACTS

Plaintiff injured her back when she slipped and fell while an invitee at defendant gas station. Plaintiff alleges that on December 31, 2004, she and her husband traveled from Linden, Michigan, to Manistee, Michigan, in order to visit a casino and attend a theatrical performance. The weather was sunny during their drive north that morning. It did not snow that day, nor at any time during the prior week. When plaintiff and her husband headed to the show in the evening, the weather in Manistee was cloudy.

After the show, at some time between midnight and one o'clock in the morning, plaintiff and her husband stopped at the defendant gas station to refill their gas tank in preparation for the return trip. Plaintiff needed to use the restroom, and fell while alighting from her truck. Holding onto the door of the vehicle, plaintiff had placed her right foot on the running board, swung out, and stepped onto the pavement with her left foot. She had immediately lost her footing on black ice and slid underneath the truck. The parking lot was paved with black asphalt, and plaintiff was not able to observe ice or snow. It was, however, starting to rain at the time of her fall. Plaintiff told the gas station attendant she had fallen and advised him to salt the parking lot to make it less slippery.

Plaintiff filed suit, and defendant filed two motions for summary disposition in the trial court; one filed before answering the complaint and the other filed upon the completion of discovery.¹ At the first motion, the trial court questioned defendant's attempt to further extend the open and obvious danger doctrine to black ice— something that, by its nature and without other indicators, is not open and obvious. Addressing the principle behind the open and obvious danger doctrine, the court commented, "[I]t seems to me that what sets so-called black ice apart in its capacity to be treacherous is that it's not visible. It's a fairly invisible kind of ice. And so people get tripped up on it, as it were."

Defendant argued that black ice should be considered open and obvious by the mere fact that any prudent Michigan resident knows that in winter months in Michigan, there is ice and snow on the ground. The trial court agreed with the general principle that obvious weather conditions should fall within the open and obvious danger doctrine, but took issue with the idea that the doctrine should apply to conditions that are, in fact, invisible, stating: "Well, sure. I agree. Except what if you look and you can't see it? Does that mean you don't dare walk? You don't dare get out of a car? You just got to stand there? Or should we all carry ski poles with spikes in them? Crampons on our boots? What do we do? What do we do if we look and can't see it? That's my question." The judge denied the motion and ordered that discovery be taken to ascertain whether, under the circumstances of the case, the condition was open and obvious.

After the completion of discovery, defendant renewed its motion for summary disposition. The trial court denied the motion, holding that given the circumstances, there was a question of fact regarding whether an average person of ordinary intelligence would have been able to discover the danger and risk upon casual inspection. Defendant appeals by leave granted.

II. STANDARD OF REVIEW

This Court reviews de novo a trial court's decision on a motion for summary disposition. Dressel v. Ameribank, 468 Mich. 557, 561, 664 N.W.2d 151 (2003). Issues of law are also reviewed de novo. Mahaffey v. Attorney General, 222 Mich. App. 325, 334, 564 N.W.2d 104 (1997). Summary disposition is proper under MCR 2.116(C)(10) if the documentary evidence submitted by the parties, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue regarding any material fact, and the moving party is entitled to judgment as a matter of law. Veenstra v. Washtenaw Country Club, 466 Mich. 155, 164, 645 N.W.2d 643 (2002).

III. DUTY OF CARE AND THE OPEN AND OBVIOUS DANGER DOCTRINE

It is well settled in Michigan that a premises possessor owes a duty "to undertake reasonable efforts to make its premises reasonably safe for its invitees." Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 526, 629 N.W.2d 384 (2001). As such, 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." Id. at 516, 629 N.W.2d 384, citing Bertrand v. Alan Ford, Inc., 449 Mich. 606, 609, 537 N.W.2d 185 (1995).

A premises possessor is generally not required to protect an invitee from open and obvious dangers.² The logic behind the open and obvious danger doctrine is that "an obvious danger is no danger to a reasonably careful person." Novotney v. Burger King Corp. (On Remand), 198 Mich.App. 470, 474, 499 N.W.2d 379 (1993). Accordingly, when the potentially dangerous condition "is wholly revealed by casual observation, the duty to warn serves no purpose." Id. If this purpose is frustrated by the application of the doctrine to a particular set of facts because the condition is for all practical purposes invisible and indiscernible, then the application of the open and obvious danger doctrine would not be appropriate.

"[I]f 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. The special aspects that cause even open and obvious conditions to be actionable are those that make the conditions "effectively unavoidable," or those that "impose an unreasonably high risk of severe harm." Id. at 518, 629 N.W.2d 384.

The standard for determining if a condition is open and obvious is whether "an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection." Novotney, supra, at 475, 499 N.W.2d 379. The test is objective, and the inquiry is whether a reasonable person in the plaintiff's position would have foreseen the danger, not whether the particular plaintiff knew or should have known that the condition was hazardous. Corey v. Davenport College of Business (On Remand), 251 Mich.App. 1, 5, 649 N.W.2d 392 (2002).

When applying the open and obvious danger doctrine to conditions involving the natural accumulation of ice and snow, our courts have progressively imputed knowledge regarding the existence of a condition as should reasonably be gleaned from all of the senses as well as one's common knowledge of weather hazards that occur in Michigan during the winter months. In Joyce v. Rubin, 249 Mich.App. 231, 239-240, 642 N.W.2d 360 (2002), this Court determined that the danger posed by a visibly snowy and icy sidewalk, on which plaintiff slipped twice before falling and recognized as being unsafe, was open and obvious. In Corey, supra at 2, 5-6, 649 N.W.2d 392, this Court held that a reasonable person would recognize the danger posed by visibly snowy and icy steps outside a college dormitory and that the condition therefore was open and obvious.

In Kenny v. Kaatz Funeral Home, Inc., 264 Mich.App. 99, 101-102, 119 (Griffin, J., dissenting); 689 N.W.2d 737 (2004) (Kenny I), rev'd 472 Mich. 929, 697 N.W.2d 526 (2005) (Kenny II), a 78-year old lifelong Michigan resident slipped and fell in a parking lot in December. She did so after witnessing three companions get out of a vehicle in the parking lot and hold onto the hood of the car to keep their balance. Id. In his dissent, Judge Griffin opined that under those circumstances, "all reasonable Michigan winter residents would conclude that the snow-covered parking lot was slippery." Id. at 120, 689 N.W.2d 737. Judge Griffin adopted the reasons articulated by the trial court, which noted that a lifelong Michigan resident should be aware that ice frequently forms beneath the snow during snowy December nights. Id. at 119, 689 N.W.2d 737. Our Supreme Court subsequently adopted Judge Griffin's dissenting opinion. Kenny II, supra.

In Ververis v. Hartfield Lanes (On Remand), 271 Mich.App. 61, 65, 718 N.W.2d 382 (2006), this Court was faced with determining whether the Supreme Court in Kenny II was adopting one of 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.

In Ververis, "there was no independent factor, beyond the snowy surface itself, that would reasonably have alerted [the plaintiff] to the fact that it was slippery." Id. at 66, 718 N.W.2d 382. In determining which rule applies, this Court considered the fact that the Supreme Court summarily reversed three other cases that had relied on Kenny I in determining that snow-covered ice did not constitute an open and...