Opinion
358873
05-04-2023
KATHLEEN ARMSTRONG, Plaintiff-Appellant, v. NATHAN BINING, M.D., PLLC, and BINING FAMILY, LLC, Defendants-Appellees, and FIRST ORIENTAL THERAPY AND LAKNERS LANDSCAPING, Defendants.
UNPUBLISHED
Wayne Circuit Court LC No. 20-002626-NO
Before: CAVANAGH, P.J., and K. F. KELLY and GARRETT, JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting summary disposition to defendants, Nathan Bining, M.D., PLLC, and Bining Family, LLC, in this slip and fall case, on the grounds that the icy condition was open and obvious and defendants had no notice of the condition. We affirm.
First Oriental Therapy and Lakners Landscaping were dismissed by stipulated order and are not parties to this appeal; thus, our reference to "defendants" means only Nathan Bining, M.D., PLLC, and Bining Family, LLC.
I. FACTS
Plaintiff slipped and fell on the sidewalk of premises owned by defendants. She does not recall many details about the weather conditions that morning, but recalls that the road, parking lot, and sidewalk looked wet. The parking lot was plowed and the sidewalks were shoveled. After she parked and got out of her vehicle, she walked from the parking lot to the sidewalk and, shortly thereafter, fell on ice that was on the sidewalk and was injured. Plaintiff only noticed the ice on the sidewalk after she was on the ground. Other people had walked on the sidewalk with no problem.
Subsequently, plaintiff sued defendants alleging ordinary negligence and premises liability. Defendants moved for summary disposition under MCR 2.116(C)(10), contending that plaintiff did not establish the element of duty because the ice on the sidewalk was an open and obvious condition without special aspects giving rise to liability under a premises liability theory. Further, defendants argued, they had no notice of the ice on the sidewalk. And, because plaintiff's injuries allegedly arose from a dangerous condition on the land, the action sounded in premises liability-not ordinary negligence. In response, plaintiff argued that the ice was not open and obvious and defendants had, or should have had, notice of the hazardous condition on the sidewalk. Further, defendants were negligent because they did not inspect or salt the sidewalk. The trial court granted defendants' motion for summary disposition, concluding that even if plaintiff did not see the icy condition-or "black ice"-before she fell, there was indicia that should have alerted her to the potentially dangerous condition because it was winter, the temperature was below freezing, snow was present around the premises, there had been light freezing rain and snow prior to the fall, the area had been plowed and shoveled, and plaintiff admitted that she saw "wet" conditions. That is, plaintiff could have discovered the ice on the sidewalk on casual inspection; therefore, the ice on the sidewalk was open and obvious and there were no special circumstances giving rise to liability. Further, the court noted, multiple patrons had walked in the area without any problems and defendants had no notice of the issue. Accordingly, the case was dismissed and this appeal followed.
II. DISCUSSION
Plaintiff argues that the trial court erred in granting defendants' motion for summary disposition because defendants knew or should have known about the ice on the sidewalk, and the ice was not open and obvious. We disagree.
A. STANDARD OF REVIEW
We review a decision on a motion for summary disposition de novo. El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159; 934 N.W.2d 665 (2019). A motion brought under MCR 2.116(C)(10) "tests the factual support of a plaintiff's claim." Spiek v Dept of Transp, 456 Mich. 331, 337; 572 N.W.2d 201 (1998). In reviewing a motion under MCR 2.116(C)(10), all the evidence submitted by the parties is considered in the light most favorable to the non-moving party to determine whether there is a genuine issue regarding any material fact. 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).
B. ANALYSIS
Plaintiff alleged a cause of action under theories of both ordinary negligence and premises liability. However, plaintiff's injury arose from an allegedly dangerous condition on the land, i.e., an icy sidewalk; therefore, the action sounds in premises liability and not ordinary negligence. See Buhalis v Trinity Continuing Care Servs, 296 Mich.App. 685, 692; 822 N.W.2d 254 (2012).
1. NOTICE
Plaintiff argues that the trial court erred in granting defendants summary disposition because defendants knew, or should have known, the sidewalk plaintiff slipped on was icy; therefore, they breached a duty owed to plaintiff as an invitee. "In a premises-liability action, as in any negligence action, the plaintiff must establish the elements of negligence: (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach proximately caused the plaintiff's injuries, and (4) the plaintiff suffered damages." Jeffrey-Moise v Williamsburg Towne Houses Coop, Inc, 336 Mich.App. 616, 626; 971 N.W.2d 716 (2021). It is undisputed that defendants owed a duty of care to plaintiff as an invitee.
The possessor of land owes the greatest duty to an invitee, being the duty to use reasonable care to protect the invitee from an unreasonable risk of harm posed by a dangerous condition on the premises. The possessor of the premises breaches that duty of care when he or she knows or should know of a dangerous condition on the premises of which the invitee is unaware and fails to fix, guard against, or warn the invitee of the defect. The plaintiff must demonstrate that the premises possessor had actual or constructive notice of the dangerous condition at issue. [Id. at 627 (quotation marks and citations omitted).]
To demonstrate the defendants had constructive notice, a plaintiff must establish the unsafe condition "is of such a character or has existed a sufficient length of time that [defendants] should have knowledge of it." Lowrey v LMPS &LMPJ, Inc, 500 Mich. 1, 10-11; 890 N.W.2d 344 (2016) (citation omitted).
In this case, plaintiff failed to present sufficient facts to establish that defendants had actual or constructive notice of the ice on the sidewalk. With regard to actual knowledge, plaintiff did not see the ice on the sidewalk until she slipped and fell. There is no evidence that anyone else fell on the day of the incident or on the prior day. The owner of First Oriental Therapy (FOT) did not fall on her way into the building that morning, or when she assisted plaintiff off the ground. Similarly, plaintiff testified that an unknown man who attempted to assist her did not fall. Also, there is no evidence plaintiff's son fell when he came onto the premises to pick plaintiff up to go to the hospital. Further, FOT's owner testified that she called defendants to inform them of the ice on the sidewalk only after plaintiff fell. Therefore, plaintiff failed to proffer evidence to demonstrate defendants had actual notice of the ice on the sidewalk before plaintiff's fall. See Jeffrey-Moise, 336 Mich.App. at 627.
Similarly, plaintiff failed to present evidence establishing a genuine issue of fact on the issue whether defendants had constructive notice of the ice on the sidewalk. Plaintiff did not proffer any evidence about the character of the unsafe condition. See Lowrey, 500 Mich. at 10-11. There was no evidence about potential conditions on the premises that could have led to ice on the sidewalk. There was no evidence of the presence of ice anywhere other than the area where plaintiff fell. Plaintiff only contended that the entire area looked wet. Lastly, there was no evidence on how long the ice was on the sidewalk such that defendants should have known about the condition. See id. Therefore, plaintiff failed to establish defendants had constructive notice of the ice on the sidewalk the morning plaintiff slipped and fell. See Jeffrey-Moise, 336 Mich.App. at 627.
Plaintiff contends that three pieces of evidence, taken together, establish defendants knew or should have known of the hazardous condition of the sidewalk. The evidence includes: (1) defendants' admission that they failed to contract for de-icing services, (2) statements made by the owner of Lakners Landscaping that ice could form after a sidewalk has been shoveled if the temperature is cold enough, and (3) plaintiff's own testimony that FOT's owner told her that there had been problems with the sidewalk in the past. Contrary to plaintiff's assertion, the evidence does not demonstrate a question of fact precluding summary disposition.
First, plaintiff argues that defendants breached their duty to inspect the premises for unsafe conditions because defendants neither contracted for de-icing services nor performed the service themselves. It is clear defendants have an obligation to reasonably inspect its premises for dangerous conditions. See Jeffrey-Moise, 336 Mich.App. at 627. However, in Lowrey, our Supreme Court stated that it "has never required a defendant to present evidence of a routine or reasonable inspection . . . to prove a premises owner's lack of constructive notice of a dangerous condition on its property." Lowrey, 500 Mich. at 10. During depositions, defendants admitted they did not contract for de-icing services on the sidewalks and, because they mistakenly thought that they had, no one performed that service. Plaintiff asserts that evidence of the failure to contract for de-icing services is essentially an admission of failing to ever inspect the premises for icy conditions. This inference is unfounded. Defendants testified that every year they purchase salt for their tenants and place it near the door so that if there is ice, either they or their tenants can salt the sidewalk. Defendants did not admit to not inspecting the premises, just that they mistakenly assumed they hired a company to perform the de-icing service. Further, as held in Lowrey, in a motion for summary disposition the burden is not on defendants to come forward with evidence regarding their inspection practices. See Lowrey, 500 Mich. at 8-11. Thus, this evidence does not support a finding that defendants had constructive notice of the ice on the sidewalk on the morning of plaintiff's slip and fall.
Second, plaintiff contends that statements made by the owner of Lakners Landscaping- including that ice could form on a sidewalk after it has been shoveled-is sufficient to provide defendants with notice that the failure to contract for de-icing services could lead to hazardous conditions. In response to a question on whether ice forms on a sidewalk after it has been shoveled, the owner stated "it varies depending on the weather condition, but a lot of times just shoveling, it does . . . it does kind of create like a black ice-ish thing, you know, depending on the [temperature]." The owner of Lakners Landscaping testified that ice could form, not that it did form, the morning of the incident. Therefore, because the testimony provides general insight on ice formation, it bears no significance on whether defendants had constructive notice of any ice forming on the morning of plaintiff's fall.
Finally, plaintiff provides excerpts of her own deposition testimony which included that FOT's owner told her that there had been issues with snow and ice on the sidewalk in the past. When reviewing a motion for summary disposition, the reviewing court should only consider "substantively admissible evidence actually proffered in opposition to the motion." Maiden, 461 Mich. at 121. Plaintiff's reliance on her own statement recalling what FOT's owner allegedly told her about the sidewalk after she fell is inadmissible hearsay." 'Hearsay' is a statement, other than the one made by the declarant while testifying . . . offered in evidence to prove the truth of the matter asserted." MRE 801(c). In Maiden, our Supreme Court stated: "By presenting inadmissible hearsay evidence, a nonmoving party is actually promising to create an issue for trial where the promise is incapable of being fulfilled. The nonmovant is not showing that a genuine issue exists." Maiden, 461 Mich. at 123 n 5. Here too, by referring to a hearsay statement to oppose summary disposition, plaintiff fails to establish there is a genuine issue of fact. Further, at her deposition, FOT's owner denied having issues regarding ice and snow removal in the past. Rather, FOT's owner testified that, in the past, when she noticed there was ice on the sidewalk, she would call defendants to inform them of the condition. Again, this evidence is insufficient to establish defendants had constructive notice that there was ice on the sidewalk on the morning plaintiff fell.
In summary, plaintiff did not proffer evidence sufficient to establish a genuine issue of fact regarding whether defendants had actual or constructive notice of ice on the sidewalk on the morning plaintiff slipped and fell. See Jeffrey-Moise, 336 Mich.App. at 627. The fact that defendants failed to contract for de-icing services does not mean defendants failed to inspect the premises. Evidence that ice could form after a sidewalk has been shoveled does not establish ice did in fact form the morning of the incident. Finally, evidence of plaintiff's own statement as to what FOT's owner purportedly told her is inadmissible. Accordingly, the trial court did not err in granting defendants' motion for summary disposition on the ground that defendants had no notice of the allegedly dangerous condition on the sidewalk.
2. OPEN AND OBVIOUS
Plaintiff also argues that the trial court erred in granting summary disposition because the ice on the sidewalk was not open and obvious, necessitating submission of the issue to a jury. As noted, defendants owed a duty of care to plaintiff as an invitee. See Jeffrey-Moise, 336 Mich.App. at 627. However, "[a]bsent special aspects, this duty generally does not require the owner to protect an invitee from open and obvious dangers." Benton v Dart Props, Inc, 270 Mich.App. 437, 440-441; 715 N.W.2d 335 (2006). "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.'" Slaughter v Blarney Castle Oil Co, 281 Mich.App. 474, 478; 760 N.W.2d 287 (2008), quoting Lugo v Ameritech Corp, Inc, 464 Mich. 512, 518; 629 N.W.2d 384 (2001). Invitees are not protected from open and obvious dangers because "by their nature, [these dangers] apprise an invitee of the potential hazard, which the invitee may then take reasonable measures to avoid." Hoffner v Lanctoe, 492 Mich. 450, 460-461; 821 N.W.2d 88 (2012).
Whether a dangerous condition is open and obvious depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection. This is an objective test in which the court considers the objective nature of the condition of the premises at issue. [Jeffrey-Moise, 336 Mich.App. at 633 (quotation marks and citations omitted).]
In Slaughter, this Court rejected the defendant's argument that black ice should be open and obvious as a matter of law. Slaughter, 281 Mich.App. at 481-483. Rather, black ice is open and obvious if there is an "indicia of a potentially hazardous condition," including "the circumstances and specific weather conditions present at the time of plaintiff's fall[.]" Id. at 483. In Janson v Sajewski Funeral Home, Inc, 486 Mich. 934, 935; 782 N.W.2d 201 (2010), our Supreme Court adopted the standard for black ice established in Slaughter. In Hoffner, our Supreme Court again emphasized that the presence of black ice in winter does not automatically make it open and obvious. Hoffner, 492 Mich. at 464. Rather, the inquiry is "whether the individual circumstances, including the surrounding conditions, render a snow or ice condition open and obvious such that a reasonably prudent person would foresee the danger." Id.
Because plaintiff has not argued that special aspects of the condition exist, the question is whether the trial court erred in finding that the ice on the sidewalk was open and obvious. See Slaughter, 281 Mich.App. 478. The undisputed facts support a conclusion that the trial court did not err in finding that the ice on the sidewalk was open and obvious. Plaintiff had lived in Michigan for at least 20 years. She was familiar with the weather conditions that accompany Michigan winters. Plaintiff testified that she slipped and fell at about 9:00 a.m. There is no testimony that the area was dim or that there were conditions obstructing the view of the sidewalk. In fact, plaintiff testified that the area was well lit. Plaintiff did not recall specifies about the weather conditions other than it was cold enough that she wore her winter gear. Although plaintiff testified that the parking lot and sidewalk were cleared of snow, she did see snow on the side of the road and on the landscaping next to the building. Plaintiff recalled that the road on her way to FOT, the parking lot, and the sidewalk that led into the building all looked wet. Taken together, the circumstances would have indicated to a reasonable person, upon casual inspection, that the wet sidewalk was potentially hazardous. See Hoffner, 492 Mich. at 464; Slaughter, 281 Mich.App. at 483. Accordingly, the trial court did not err in granting defendants' motion for summary disposition on the ground that the ice on the sidewalk was open and obvious.
Affirmed.
Kristina Robinson Garrett, J. (dissenting).
Because genuine issues of material fact exist as to whether defendants had constructive notice of the icy condition and whether the condition was open and obvious, I respectfully dissent.I would reverse the trial court's order granting summary disposition in favor of defendants and remand for further proceedings.
I agree with the majority opinion that plaintiff's claim sounds in premises liability, not ordinary negligence. See Jeffrey-Moise v Williamsburg Towne Houses Coop, 336 Mich.App. 616, 625; 971 N.W.2d 716 (2021).
As with the majority opinion, any use of "defendants" refers only to Nathan Bining, MD, PLLC, and Bining Family, LLC.
I. NOTICE
First, the majority opinion erroneously concludes that there was insufficient evidence that defendants had constructive notice of the black ice on the sidewalk.
To prove a claim of premises liability, the plaintiff "must demonstrate that the premises possessor had actual or constructive notice of the dangerous condition at issue." Jeffrey-Moise v Williamsburg Towne Houses Coop, Inc, 336 Mich.App. 616, 627; 971 N.W.2d 716 (2021) (quotation marks and citation omitted). Constructive notice requires evidence "that the hazard was of such a character, or had existed for a sufficient time, that a reasonable premises possessor would have discovered it." Lowrey v LMPS &LMPJ, Inc, 500 Mich. 1, 11-12; 890 N.W.2d 344 (2016). That is, a question of fact exists for the jury when the defendant "should have known" about the dangerous condition "because of its character or the duration of its presence." Id. at 11. "Generally, the question of whether a defect has existed a sufficient length of time and under circumstances that the defendant is deemed to have notice is a question of fact, and not a question of law." Banks v Exxon Mobil Corp, 477 Mich. 983, 984; 725 N.W.2d 455 (2007). "Constructive notice may arise not only from the passage of time itself, but also from the type of condition involved, or from a combination of the two elements." Id. at 983, citing Kroll v Katz, 374 Mich. 364, 372; 132 N.W.2d 27 (1965).
While I agree that there was no record evidence that defendants had actual notice of the black ice, I believe plaintiff presented sufficient evidence of constructive notice to survive summary disposition. The evidence established that defendants did not contract anyone to salt or de-ice the sidewalk on their property where plaintiff fell. Defendants contracted with Lakners Landscaping ("Lakners") to plow and salt the parking lot, and to shovel the sidewalks, but not to salt the sidewalks after shoveling. Chris Lakner, owner of Lakners, testified that the office manager for Dr. Bining knew that Lakners did not salt the sidewalks. Thus, contrary to Dr. Bining's testimony claiming a mistaken belief that defendants had contracted with Lakners for salting of the sidewalk, there was evidence that defendants knew that they were wholly responsible to salt the sidewalks. Dr. Bining also stated that he provided his tenants with some salt but conceded that his tenants had no legal obligation to remove ice from the premises. At the very least, given Lakner's testimony that defendants never contracted for sidewalk de-icing services over several years as clients, defendants should have known that they were responsible to perform those services.
The evidence also established that it had snowed sometime before plaintiff's fall, and the sidewalk and parking lot were cleared of snow. Lakner testified that a layer of black ice often formed after shoveling a walkway. Considering the "character" of the hazard at issue, a question of fact remains whether defendants should have known about the black ice. See Lowrey, 500 Mich. at 11. The majority opinion dismisses Lakner's testimony as "general insight on ice formation" that "bears no significance" on the question of constructive notice. But given that the constructive notice doctrine considers what a reasonable premises owner should have known, evidence of how black ice could form after shoveling the sidewalk, and evidence that black ice did form in this case, is highly relevant. Viewed in the light most favorable to plaintiff, and combined with the evidence that defendants did not contract for de-icing services, and knew or should have known of their responsibility to salt the sidewalk after snow removal, plaintiff established a question of fact on constructive notice. See Banks, 477 Mich. at 984.
II. OPEN AND OBVIOUS DANGER
Second, I disagree with the majority's conclusion that the black ice on which plaintiff slipped and fell was open and obvious.
"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). More specifically, this duty includes a responsibility that "reasonable measures be taken with a reasonable time after an accumulation of ice and snow to diminish the hazard of injury to the invitee." Hoffner v Lanctoe, 492 Mich. 450, 464; 821 N.W.2d 88 (2012), quoting Quinlivan v Great Atlantic &Pacific Tea Co, Inc, 395 Mich. 244, 261; 235 N.W.2d 732 (1975). Generally, however, the duty of a premises owner evaporates when the hazard is open and obvious. Lugo, 464 Mich. at 516. 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 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 N.W.2d 287 (2008). "[A]bsent special circumstances, Michigan courts have generally held that the hazards presented by snow, snow-covered ice, and observable ice are open and obvious and do not impose a duty on the premises possessor to warn of or remove the hazard." Id. at 481. On the other hand, black ice- by definition, an invisible or nearly invisible layer of ice-is "inherently inconsistent with the open and obvious danger doctrine." Id. at 483. Thus, black ice does not present an open and obvious danger "without evidence that the black ice in question would have been visible on casual inspection before the fall or without other indicia of a potentially hazardous condition." Id.
The majority opinion relies on several innocuous facts that exist nearly every day during Michigan winters to conclude that the black ice in this case was open and obvious. Namely, (1) plaintiff lived in Michigan for more than 20 years, (2) it was cold outside, (3) there was some snow on the landscaping, and (4) the sidewalk looked wet. The majority concludes that these circumstances rendered the black ice open and obvious as a matter of law, meaning defendants owed no duty to protect plaintiff from the dangerous condition. I disagree.
Plaintiff testified that the road driving to defendants' premises, as well as the parking lot and sidewalk, all looked wet. "[T]he danger and risk presented by a wet surface is not the same as that presented by an icy surface." Id. The sidewalk was shoveled and the parking lot was plowed, but some snow remained on the landscaping next to defendants' building. Plaintiff did not notice any salt on the sidewalk and only noticed the ice after she fell. Plaintiff also did not encounter ice outside her home, on the road to her appointment, or in the parking lot walking towards defendants' building. Besides that, it was another cold day during a Michigan winter. Those facts do not establish beyond factual dispute that "an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection[.]" Novotney, 198 Mich.App. at 475. If those facts alone render black ice open and obvious as a matter of law, then black ice would remain open and obvious for months at a time in Michigan. "[R]easonable Michigan winter residents know that each day can bring dramatically different weather conditions, ranging from blizzard conditions, to wet slush, to a dry, clear, and sunny day." Slaughter, 281 Mich.App. at 483. But under the majority's ruling, it matters little whether there is a blizzard or sunshine if unremarkable "indicia" transform the black ice into an open and obvious hazard. In my view, there remains a genuine issue of material fact whether the cold weather and other routine conditions rendered the black ice on the sidewalk open and obvious upon casual inspection.
At its core, "the open and obvious danger doctrine requires that the hazard would be obvious upon casual inspection." Watts v Mich. Multi-King, Inc, 291 Mich.App. 98, 105; 804 N.W.2d 569 (2010) (quotation marks and citation omitted). Here, reasonable minds could differ on whether the black ice met that standard. Because questions of fact exist for a jury, I would reverse the trial court's order granting defendants' motion for summary disposition and remand for further proceedings.