Ververis v. Hartfield Lanes, Docket No. 251868.

• Decision Date: 02 May 2006
• Docket Number: Docket No. 251868.
• Citation: 718 N.W.2d 382,271 Mich. App. 61
• Parties: Peter VERVERIS, Theresa Ververis, and Philip Ververis, a Minor, by his Next Friend Theresa Ververis, Plaintiffs-Appellants/Cross-Appellees, v. HARTFIELD LANES, Defendant-Appellee/Cross-Appellant. (On Remand)
• Court: Court of Appeal of Michigan — District of US

718 N.W.2d 382

271 Mich. App. 61

Peter VERVERIS, Theresa Ververis, and Philip Ververis, a Minor, by his Next Friend Theresa Ververis, Plaintiffs-Appellants/Cross-Appellees, v. HARTFIELD LANES, Defendant-Appellee/Cross-Appellant. (On Remand)

Docket No. 251868.

Court of Appeals of Michigan.

Submitted January 25, 2006, at Lansing.

Decided May 2, 2006, at 9:15 a.m.

Released for Publication July 27, 2006.

Mark Granzotto, P.C. (by Mark Granzotto), and Law Offices of Gregory M. Bereznoff (by Gregory M. Bereznoff), Royal Oak, Royal Oak, for the plaintiffs.

Kallas & Henk PC (by Kenneth S. Dombrowski), Bloomfield Hills, for the defendant.

Before: BANDSTRA, P.J., WHITBECK, C.J., and HOEKSTRA, J.

ON REMAND

PER CURIAM.

In an unpublished opinion per curiam issued May 19, 2005, this Court reversed the trial court's order granting defendant's motion for a directed verdict in this slip and fall action, and remanded this case for entry of a judgment consistent with the jury verdict. We concluded, on the basis of Kenny v. Kaatz Funeral Home, Inc., 264 Mich.App. 99, 689 N.W.2d 737 (2004) (Kenny I), that the snow-covered ice on the parking lot where Peter Ververis fell did not present an open and obvious danger.¹ In a December 15, 2005, order, our Supreme Court vacated this Court's judgment and remanded the matter to this Court for reconsideration, citing a summary disposition order issued after our prior opinion here, Kenny v. Kaatz Funeral Home, Inc., 472 Mich. 929, 697 N.W.2d 526 (2005) (Kenny II). 474 Mich. 954, 706 N.W.2d 743 (2005). Kenny II reversed Kenny I "for the reasons stated" in Judge Griffin's dissent in Kenny I. Kenny II, supra at 929, 697 N.W.2d 526. Upon consideration of Kenny II, as it has been cited here and in similar Supreme Court orders, we conclude that the potential slipperiness of a snow-covered surface is an open and obvious danger even in the absence of any separate factor suggesting that, in fact, the surface is slippery.

The facts underlying this case, the standard of review, and the applicable law were succinctly stated in our prior opinion:

This premises liability claim is based on injuries sustained by Peter Ververis when he slipped and fell on defendant's property as he attempted to enter defendant bowling alley from the parking lot. The jury returned a verdict in plaintiffs' favor, awarding $148,155.50 in damages. Plaintiffs appeal as of right the trial court order granting defendant's motion for directed verdict of no cause of action. Defendant cross-appeals as of right, challenging the trial court order denying its motion for summary disposition, the jury's allocation of zero percent fault to Peter Ververis, and the jury's award of economic damages. . . .

At the close of plaintiffs' proofs, defendant moved for directed verdict based on the open and obvious doctrine and lack of notice of the allegedly dangerous condition. The trial court took the motion under advisement, and the trial continued. After the jury returned a verdict in favor of plaintiffs, the trial court granted defendant's motion. Plaintiffs now argue that the trial court erred in granting defendant's motion because reasonable jurors could differ as to whether the condition that Peter Ververis encountered was open and obvious. . . .

We review de novo a trial court's decision on a motion for directed verdict. Sniecinski v. Blue Cross & Blue Shield of Michigan, 469 Mich. 124, 131, 666 N.W.2d 186 (2003). In reviewing the trial court's ruling, we view the evidence presented up to the time of the motion in the light most favorable to the nonmoving party, grant every reasonable inference to the nonmoving party, and resolve any conflict in the evidence in favor of the nonmoving party to decide whether a question of fact existed. Thomas v. McGinnis, 239 Mich.App. 636, 643-644, 609 N.W.2d 222 (2000). . . .

. . . Peter Ververis was an invitee on defendant's property at the time he fell and fractured his ankle. Stitt v. Holland Abundant Life Fellowship, 462 Mich. 591, 596-597, 614 N.W.2d 88 (2000). As a general rule, a premises owner 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. Kenny v. Kaatz Funeral Home, Inc., 264 Mich.App. 99, 105, 689 N.W.2d 737 (2004). However, this duty does not generally extend to open and obvious dangers. Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 516, 629 N.W.2d 384 (2001). "`[W]here the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, an invitor owes no duty to protect or warn the invitee unless he should anticipate harm despite knowledge of it on behalf of the invitee.'" Id., quoting Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 96, 485 N.W.2d 676 (1992). When determining if a condition is open and obvious, we consider whether "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. (On Remand), 198 Mich.App. 470, 475, 499 N.W.2d 379 (1993). [Ververis v. Hartfield Lanes, unpublished opinion per curiam of the Court of Appeals, issued May 19, 2005 (Docket No. 251868, 2005 WL 1185595), slip op at 1-2.]

In Kenny I, this Court reversed a trial court order granting the defendant's motion for summary disposition based on the open and obvious danger doctrine in a case involving a slip and fall on snow-covered ice in a parking lot. This Court found that, viewing the evidence in a light most favorable to the plaintiff, the black ice on which she slipped was hidden and not observable. Kenny I, supra at 111, 689 N.W.2d 737.

Because, as noted earlier, the Supreme Court adopted Judge Griffin's dissent when it reversed this decision, we closely consider that dissent. Judge Griffin noted that decisions of this Court and our Supreme Court have applied the open and obvious danger doctrine to snow and ice cases. Id. at 117, 689 N.W.2d 737 (Griffin, J., dissenting). Development of the open and obvious danger doctrine since Quinlivan v. Great Atlantic & Pacific Tea Co., Inc., 395 Mich. 244, 235 N.W.2d 732 (1975), means that the snow and ice analysis in Quinlivan is subsumed in the newly articulated rule set forth in Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 629 N.W.2d 384 (2001). Kenny, I, supra at 117-118, 689 N.W.2d 737.

With respect to the question whether the snow-covered ice was an open and obvious danger, Judge Griffin adopted "the reasons articulated by the trial court in its well-written opinion," which he then quoted at length. Id. at 118-119, 689 N.W.2d 737. The trial court had noted that the 79-year-old plaintiff "`had lived in Michigan all of her life and had witnessed many snowfalls'" and reasoned that "[a]s a lifelong resident of Michigan, she should have been aware that ice frequently forms beneath snow during snowy December nights." Id. at 119, 689 N.W.2d 737. At the same time, however, the trial court had noted that the plaintiff "acknowledged that, before she exited the vehicle, she had observed . . . others hang onto [the vehicle] for support" and reasoned that "[t]hat alone should have clued her into the possible danger that awaited her outside the vehicle." Id. 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. Judge Griffin's summary statement on the matter does nothing to illuminate which approach he was adopting:

In my view, after witnessing three companions exit a vehicle into the snow-covered parking lot on December 27 and seeing them holding on to the hood of the car to keep...