Robert Garsoff v. Keyana Dickerson ( 2017 )


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  •                            STATE OF MICHIGAN
    COURT OF APPEALS
    ROBERT GARSOFF,                                                      UNPUBLISHED
    October 24, 2017
    Plaintiff-Appellee,
    v                                                                    No. 333132
    Oakland Circuit Court
    KEYANA DICKERSON and CHARLES                                         LC No. 2014-143396-NO
    DICKERSON,
    Defendants-Appellants.
    Before: BORRELLO, P.J., and MURPHY and RONAYNE KRAUSE, JJ.
    PER CURIAM.
    In this premises liability action, defendant appeals by leave granted an April 7, 2016, trial
    court order denying their motion for summary disposition. 1 For the reasons set forth in this
    opinion, we reverse and remand for entry of an order awarding summary disposition in favor of
    defendants.
    I. FACTS
    This case arises out of injuries plaintiff sustained when he slipped and fell on ice located
    on defendants’ premises, which occurred on February 28, 2014, at approximately 8:00 p.m.
    Plaintiff, an employee of Domino’s Pizza, was delivering a pizza to defendants’ home. Plaintiff
    delivered pizza to the home on prior occasions as defendants were regular customers. Plaintiff
    testified that he pulled into defendants’ driveway and parked behind three other cars. Plaintiff
    recalled it being cold that evening, but did not recall seeing snow on the ground. Plaintiff exited
    his vehicle, walked towards the front of his vehicle, turned right to walk in-between his vehicle
    and the vehicle parked in front of him, and then turned left to walk up the driveway towards
    defendants’ front door. Plaintiff testified that he could not see anything and all the lights were
    out. Plaintiff walked about halfway past the vehicle and then slipped and fell on ice. Plaintiff
    did not see the ice before his fall, but he did see it once he stood back up.
    1
    Robert Garsoff v Keyana Dickerson, unpublished order of the Court of Appeals, entered
    October 21, 2016 (Docket No. 333132).
    -1-
    When plaintiff arrived to deliver the pizza, Devin Kersey, Keyana’s son, was outside the
    home helping repair a tire on a vehicle in the driveway. Devin testified that it was “freezing” on
    the day that plaintiff slipped and he recalled seeing approximately one or two inches of snow on
    the ground that day. After plaintiff fell, Devin went into the house to tell Keyana about the fall.
    Keyana came outside to see if plaintiff needed help, but plaintiff responded that he wanted to go
    back to his store. Plaintiff then drove himself back to the Domino’s store, told his manager that
    he was injured, and then drove himself to an urgent care and the Providence Novi emergency
    room, where he received x-rays. Plaintiff’s right ankle was broken in three places, and he had
    surgery at Royal Oak Beaumont hospital several days later. After the surgery, plaintiff spent
    four days admitted to the hospital and approximately four more days at the Hartland
    rehabilitation facility.
    On October 8, 2014, plaintiff commenced this premises liability action against
    defendants, alleging that defendants breached a duty of care to plaintiff as an invitee.
    Specifically, plaintiff alleged that defendants failed to keep the driveway in a reasonably safe
    condition, failed to inspect the driveway for icing conditions, failed to assure that the driveway
    would not be blocked by parked cars, and failed to turn on available outdoor lighting.
    Defendants moved for summary disposition pursuant to MCR 2.116(C)(10). Defendants
    argued that they were entitled to summary disposition because there was no genuine issue of
    material fact as to whether: (1) the alleged dangerous condition was open and obvious, not
    effectively unavoidable nor unreasonably dangerous, and that darkness of the driveway is not a
    special aspect that precludes a condition from being open and obvious, and (2) defendants did
    not know, nor should have known, of the condition because they cleared the snow and salted the
    ice on a regular basis.
    On June 23, 2015, plaintiff responded, arguing that the open and obvious defense was
    inapplicable because a question of material fact existed as to whether the ice was visible upon
    casual inspection because it was a dark night and the lamp-posts were not illuminated. Second,
    defendants had actual notice of the icy condition, but failed to salt the driveway. Lastly,
    defendants were negligent by failing to illuminate the lampposts when they knew that plaintiff,
    as an invitee, would be delivering pizza.
    The trial court waived oral arguments and issued an opinion and order on April 7, 2016,
    denying defendants’ motion for summary disposition. With respect to the open and obvious
    doctrine, the trial court took note that plaintiff “testified he was indeed looking where he was
    walking and yet did not see the ice,” and ruled that, viewing the evidence in a light most
    favorable to plaintiff, it was possible for a jury to return a verdict in favor of plaintiff. Regarding
    whether defendants had notice of the hazard, a reasonable juror could conclude defendants had
    constructive notice of the condition because Keyana knew that she needed to buy more salt, and
    she knew that she should salt the driveway whenever the temperature dropped. The court denied
    defendants’ motion for reconsideration on May 4, 2016. This appeal ensued.
    II. ANALYSIS
    -2-
    Defendants argue that there is no genuine issue of material fact with regard to whether
    the ice was visible upon casual inspection and whether they did not have notice of the dangerous
    condition and therefore the trial court erred in denying their motion for summary disposition. 2
    We review de novo a trial court’s ruling on a motion for summary disposition. Johnson v
    Recca, 
    492 Mich 169
    ; 173; 821 NW2d 520 (2012). “A motion under MCR 2.116(C)(10) tests
    the factual sufficiency of the complaint. In evaluating a motion for summary disposition brought
    under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and
    other evidence submitted by the parties. . . .” Maiden v Rozwood, 
    461 Mich 109
    , 120; 597
    NW2d 817 (1999). “Where the proffered evidence fails to establish a genuine issue regarding
    any material fact, the moving party is entitled to judgment as a matter of law.” 
    Id.
     A genuine
    issue of material fact exists when, after viewing the evidence in a light most favorable to the
    nonmoving party, reasonable minds could differ on the issue. Allison v AEW Capital Mgt, LLP,
    
    481 Mich 419
    , 425; 751 NW2d 8 (2008).
    Plaintiff alleged that his injury arose from a condition on the land—i.e. an icy driveway;
    therefore, his claim sounded in premises liability as opposed to ordinary negligence. “The
    starting point for any discussion of the rules governing premises liability law is establishing what
    duty a premises possessor owes to those who come onto his land.” Hoffner v Lanctoe, 
    492 Mich 450
    , 460; 821 NW2d 88 (2012). In this case, it is undisputed that plaintiff was an invitee. “With
    regard to invitees, a landowner owes a duty to use reasonable care to protect invitees from
    unreasonable risks of harm posed by dangerous conditions on the owner’s land.” 
    Id.
     In the
    context of snow and ice:
    a premises owner has a duty to exercise reasonable care to diminish the hazards of
    ice and snow accumulation, requiring that reasonable measures be taken within a
    reasonable time after an accumulation of ice and snow to diminish the hazard of
    injury to the invitee. [Id. at 464 (quotation marks and citation omitted).]
    “However, a landowner’s duty does not generally encompass defects that are ‘open and
    obvious.’” Lymon v Freedland, 
    314 Mich App 746
    , 757; 887 NW2d 456 (2016). “The
    possessor of land owes no duty to protect or warn of dangers that are open and obvious because
    such dangers, by their nature, apprise an invitee of the potential hazard. . . .” Hoffner, 492 Mich
    at 460-461 (quotation marks and citation omitted). “Whether a danger is open and obvious
    involves an objective inquiry to determine whether it is reasonable to expect that an average
    person with ordinary intelligence would have discovered [the danger] upon casual inspection.”
    Lymon, 314 Mich App at 757-758 (quotation marks and citations omitted). “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.” Slaughter v Blarney Castle Oil Co., 
    281 Mich App 474
    , 479; 760
    NW2d 287 (2008).
    2
    We reject plaintiff’s argument that defendants failed to challenge the court’s ruling on the
    motion for summary disposition on appeal.
    -3-
    In this case, plaintiff slipped on an icy driveway. In Michigan, our Supreme Court has
    essentially made it the policy of this state to preclude individuals from recovering for injuries
    caused when they slip and fall on ice and snow in all but the most unique cases that involve
    “special aspects” irrespective of the severity of the injury, irrespective of whether the landowner
    knew or should have known of the hazardous condition, and irrespective of whether the
    landowner could have reasonably eliminated the hazard. See e.g. Lymon, 314 Mich App at 758
    (noting that, “[a]lthough ice is transparent and difficult to observe in many circumstances, our
    Supreme Court has explained that wintry conditions, like any other condition on the premises,
    may be deemed open and obvious”); Hoffner, 492 Mich at 473 (an ice-covered entryway to a
    fitness center was an open-and-obvious and avoidable hazard); Perkoviq v Delcor Homes–Lake
    Shore Pointe, Ltd., 
    466 Mich 11
    , 16; 643 NW2d 212 (2002) (holding that ice and frost on a roof
    was an open-and-obvious hazard); Cole v Henry Ford Health Sys., 
    497 Mich 881
    , 854 NW2d
    717 (2014) (noting in an order that “so-called ‘black ice” in a parking lot posed an open-and-
    obvious hazard); Ververis v Hartfield Lanes (On Remand), 
    271 Mich App 61
    , 67; 718 NW2d
    382 (2006) (citing our Supreme Court precedent and explaining that “as a matter of law ... by its
    very nature, a snow-covered surface presents an open and obvious danger because of the high
    probability that it may be slippery.”).
    Indeed, even in circumstances where an individual slips on ice that is invisible to the
    naked eye, pursuant to our Supreme Court’s precedent, “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.” Slaughter, 281 Mich App at 479. More specifically, “indicia of a potentially
    hazardous condition” such as “wintry conditions” and below freezing temperatures, could alert a
    plaintiff of a hazardous condition. Janson v Sajewski Funeral Home, Inc, 
    486 Mich 934
    ; 782
    NW2d 201 (2010).
    In this case, as in the cases cited above, the ice that plaintiff slipped on was an open-and-
    obvious hazard, as that doctrine has been articulated by our Supreme Court. Here, the record
    evidence shows that although plaintiff testified that he did not see the ice when he was walking
    up the driveway, plaintiff saw the ice after he fell, notwithstanding the darkness. Specifically,
    plaintiff stated, “[A]fter I fell, I got up and I saw ice.” Thus, by plaintiff’s own words, a
    reasonable person in plaintiff’s position would have observed the slippery conditions and the ice
    was observable upon a causal inspection. Moreover, there was other indicia of a potentially
    hazardous condition that would have alerted a reasonable person to the potentially hazardous
    conditions. Specifically, it was a cold February night in Michigan, one that Devin Kersey
    described as “freezing,” and, according to Kersey, there was one to two inches of snow on the
    ground that day. Again, pursuant to precedent by our Supreme Court, these conditions would
    have alerted a reasonable person in plaintiff’s position to the potentially slippery conditions.
    Plaintiff argues that the darkness concealed the conditions of the driveway. However,
    there was testimony that there was snow on the ground and plaintiff was aware that it was cold.
    Furthermore, plaintiff testified that, after he fell and got back on his feet, he could see the ice on
    the ground. Given these circumstances, a reasonable person in plaintiff’s position would have
    been able to appreciate the hazardous condition of the driveway. Accordingly, absent a special
    aspect, plaintiff’s claim was barred by the open-and-obvious doctrine.
    -4-
    “If the condition is open and obvious, a plaintiff who is injured by the condition may
    avoid summary disposition only if there are special aspects to the condition.” Hoffner, 492 Mich
    at 464. “[O]nly those special aspects that give rise to a uniquely high likelihood of harm or
    severity of harm if the risk is not avoided will serve to remove that condition from the open and
    obvious danger doctrine.” Lugo v Ameritech Corp, Inc, 
    464 Mich 512
    , 519; 629 NW2d 384
    (2001). “An open and obvious hazard that is effectively unavoidable for the plaintiff is
    unreasonably dangerous and, thus, may give rise to liability.” Hoffner, 492 Mich at 472. To be
    effectively unavoidable, “the plaintiff must be effectively trapped by the hazard.” Bullard v
    Oakwood Annapolis Hosp, 
    308 Mich App 403
    , 411-412; 864 NW2d 591 (2014). Effectively
    unavoidable conditions “must be differentiated from those risks posed by ordinary conditions or
    typical open and obvious hazards.” Hoffner, 492 Mich at 463. “Under this limited exception,
    liability may be imposed only for an unusual open and obvious condition that is unreasonably
    dangerous.” Id. at 462 (quotation marks omitted and emphasis added). “[N]either a common
    condition nor an avoidable condition is uniquely dangerous.” Id. at 463.
    As the numerous above-referenced cases make clear, ice is considered a common
    occurrence in Michigan and is not considered a uniquely dangerous hazard and it does not fall
    within the special aspect exception to the open-and-obvious doctrine. See e.g. Perkoviq, 
    466 Mich at 19-20
     (holding that there were no special aspects with respect to the presence of ice,
    snow, and frost on sloped roof). Additionally, plaintiff was not effectively trapped and the lack
    of lighting did not create what our Supreme Court has come to recognize as a “special
    condition.” See, Hoffner, 492 Mich at 463-465. After plaintiff arrived at defendants’ home, he
    walked around the passenger side of the vehicle parked in front of his car. Because the vehicle
    was parked in the middle of the driveway, plaintiff could have also walked around the driver side
    of that vehicle and he could have left his headlights on. Furthermore, defendant Keyana
    Dickerson walked on the same driveway, past the cars, to check on the plaintiff after he fell, and
    she did not slip and fall on ice. See e.g. Bullard, 308 Mich App at 411-412. On these facts, we
    are precluded from finding that the driveway presented any special aspects.
    In sum, the icy driveway posed an open-and-obvious hazard and there were no special
    aspects; accordingly, summary disposition was warranted and the trial court erred in concluding
    otherwise.3 Lymon, 314 Mich App at 757.
    Reversed and remanded.      No costs awarded.      MCR 7.219(A).      We do not retain
    jurisdiction.
    /s/ Stephen L. Borrello
    /s/ William B. Murphy
    /s/ Amy Ronayne Krause
    3
    Given our resolution of the open-and-obvious doctrine, we need not address defendants’
    argument regarding whether they had notice of the icy condition.
    -5-
    

Document Info

Docket Number: 333132

Filed Date: 10/24/2017

Precedential Status: Non-Precedential

Modified Date: 4/18/2021