Opinion
No. 300842
02-07-2012
JACQUELYN ROBBINS, Plaintiff-Appellant, v. VILLAGE CREST CONDOMINIUM ASSOCIATION, Defendant-Appellee.
UNPUBLISHED
Oakland Circuit Court
LC No. 2009-106178-NO
Before: SAAD, P.J., and STEPHENS and RONAYNE KRAUSE, JJ. PER CURIAM.
Plaintiff appeals as of right an order granting defendant's motion for summary disposition in this premises liability action. We reverse.
In this case, the circuit court granted summary disposition in favor of defendant because it found that the condition was open and obvious. Plaintiff alleged that, on November 18, 2008, she slipped and fell on black ice on defendant's premises. On appeal, plaintiff argues that the circuit court erred in granting summary disposition in favor of defendant because there were no indicia of a potential icy condition existed at the time plaintiff fell. We agree.
"This Court reviews de novo a trial court's grant or denial of a motion for summary disposition." Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). A motion brought under MCR 2.116(C)(10) is reviewed "by considering the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party. Summary disposition is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." Id.
Defendant moved for summary disposition pursuant to MCR 2.116(C)(10), arguing, in part, that the alleged black ice was open and obvious because there were indicia of a potentially hazardous condition.
In a premises liability action, a plaintiff must prove the elements of negligence: (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff's injury, and (4) the plaintiff suffered damages. The duty that a landlord owes a plaintiff depends on the plaintiff's status on the land. A person invited on the land for the owner'sThe Michigan Supreme Court, in Lugo v Ameritech Corp, Inc, 464 Mich 512, 517; 629 NW2d 384 (2001), explained that "if 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."
commercial purposes or pecuniary gain is an invitee, and a tenant is an invitee of the landlord. An 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. Absent special aspects, this duty generally does not require the owner to protect an invitee from open and obvious dangers. [Benton v Dart Properties, Inc, 270 Mich App 437, 440-441; 715 NW2d 335 (2006) (internal quotations and citations omitted).]
In determining whether a danger is open and obvious, the inquiry is whether an average person 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 NW2d 379 (1993). In the context of black ice, this Court has found that black ice is not open and obvious unless there is evidence that it would have been visible on casual inspection before the fall or other indicia of a potentially hazardous condition are shown to have existed at the time of the fall. Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 483; 760 NW2d 287 (2008).
In Slaughter, this Court affirmed the trial court's denial of summary disposition, finding a question of fact remained regarding whether an average person of ordinary intelligence would have been able to discover the danger and risk upon casual inspection. Slaughter, 281 Mich App at 484. In Slaughter, the plaintiff fell while alighting from her truck at a gas station sometime between midnight and 1:00 a.m. Id. at 475. There was no snow on the ground, it had not snowed in a week, the plaintiff had not observed anyone else slip prior to her fall, and the plaintiff did not see the ice before she fell, but it had started to rain. Id. at 483. The Court stated:
Contrary to defendant's assertion that the mere fact of it being wintertime in northern Michigan should be enough to render any weather-related situation open and obvious, reasonable 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. As such, the circumstances and specific weather conditions present at the time of plaintiff's fall are relevant. We are not persuaded that the recent onset of rain wholly revealed the condition and its danger as a matter of law such that a warning would have served no purpose. [Id. at 483-484 (citation omitted).]
In Janson v Sajewski Funeral Home, Inc, 486 Mich 934, 935; 782 NW2d 201 (2010), the Michigan Supreme Court reaffirmed Slaughter as governing precedent but reversed the Court of Appeals decision and reinstated summary disposition finding that the wintry conditions would have alerted an average person of ordinary intelligence to discover the danger upon casual inspection. In Janson, "the slip and fall occurred in winter, with temperatures at all times below freezing, snow present around the defendant's premises, mist and light freezing rain falling earlier in the day, and light snow falling during the period prior to the plaintiff's fall in the evening." Id. The Janson Court reasoned that "these wintry conditions by their nature would have altered an average user of ordinary intelligence to discover the danger upon casual inspection." Id.
In the present case, the evidence shows that plaintiff slipped and fell on a cold mid November day and there was some evidence that the weather conditions were rather wintry. However, the evidence shows that plaintiff did not see any ice before slipping and falling in defendant's parking lot. Plaintiff recalled that it had snowed two days prior to her fall and that, in the days leading to the incident, she had no trouble traversing on defendant's premises. On the day of the incident, plaintiff recalled that the porch and sidewalks were not snowy or icy.
However, defendant argues that there were indicia of a potentially hazardous condition. Plaintiff testified that it was "cold" and based on the meteorological records the temperature was below freezing at the time plaintiff slipped and fell. According to plaintiff, she did not recall seeing any snow or ice on defendant's parking lot. Further, in the days leading up to the incident, there was mild precipitation. In particular, two days before plaintiff's fall, less than an inch of snow fell. However, there was no precipitation the day before the incident and there was also no precipitation on the day of the incident or when plaintiff traversed on defendant's premises. In fact in the days leading to plaintiff's fall, the temperatures varied and fluctuated above freezing. In particular, following the snow fall just two days before the incident, there were periods of temperatures above freezing, and the meteorological records indicate that, an hour before the incident, the temperature was below freezing.
We conclude that, viewing the evidence in the light most favorable to plaintiff, there is a material question of fact regarding whether there were indicia of a potentially hazardous condition. Although like Jason, plaintiff's fall occurred on a "cold" day and the temperature was below freezing, the temperature had fluctuated above freezing in the days before plaintiff's fall. While the meteorological records indicate that there were trace amounts of snow on the ground the day plaintiff fell and that it had snowed two days before, there was no evidence that there was snow present on defendant's premises or where plaintiff fell. Further, unlike in Janson, there was no precipitation on the morning of or the day before the incident. That is, there was no mist, light freezing rain or snow falling the day before or the day plaintiff fell. Further, there is no evidence that plaintiff had observed anyone else slip prior to her fall. Like in Slaughter, the facts of the case at bar establish that merely because there were wintry weather conditions days prior to plaintiff's fall, "each day can bring dramatically different weather conditions" and these facts are not enough to render any weather-related situation open and obvious. Slaughter, 281 Mich App at 483. Thus, there exists a question of material fact regarding whether the weather conditions in this case would have alerted an average user of ordinary intelligence to discover the danger. See Id. at 484. Because there is a question of fact regarding whether there were indicia of a potentially hazardous condition such that the condition was open and obvious, we need not decide whether there were special circumstances that made the condition unreasonably dangerous. See id. at 484.
We note, however, that if we were to find that the condition was open and obvious, we would conclude that there were not special aspects that made it unreasonably dangerous. See Lugo, 464 Mich at 517. There is no evidence that the black ice was unavoidable and it did not impose an unreasonably high risk of severe harm, such as a 30-foot deep pit in a parking lot. See id. at 518; see also Janson, 486 Mich at 935 (finding that the alleged icy condition in that case was avoidable and not unreasonably dangerous).
In support of its argument that the circuit court correctly granted summary disposition in its favor, defendant argues that plaintiff's theory, i.e., that black ice caused her to fall, is not supported by the record. Specifically, defendant argues that plaintiff offered nothing more than mere speculation and conjecture to establish that she slipped and fell on black ice. Defendant argued below that plaintiff's causation theory was mere conjecture, but the circuit court failed to address or decide the issue below. "Although filing a cross-appeal is not necessary to argue an alternative basis for affirming the [circuit] court's decision, the failure to do so generally precludes an appellee from raising an issue not appealed by the appellant." Turcheck v Amerifund Financial, Inc, 272 Mich App 341, 351; 725 NW2d 684 (2006), citing Kosmyna v. Botsford Community Hosp., 238 Mich App 694, 696; 607 NW2d 134 (1999). While we could refuse to consider the issue because defendant has not filed a cross-appeal, we will address the issue because it involves a question of law for which all necessary facts have been presented. See Miller v Department of Mental Health, 161 Mich App 778, 783; 411 NW2d 856 (1987) rev'd on other grounds 432 Mich 426 (1989).
It is well established that an action for negligence requires a plaintiff to prove four elements: duty, breach, causation, and damages. Case v Consumers Power Co, 463 Mich 1 6; 615 NW2d 17 (2000). The third element requires a plaintiff to prove both that the defendant's negligence was the cause in fact and proximate cause of the injuries. Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994). Cause in fact requires a plaintiff to show that, but for the defendant's negligence, the injuries would not have occurred. Id. at 164-165. Cause in fact may be established by circumstantial evidence, but such proof must be subject to reasonable inference, not mere speculation. Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 496; 668 NW2d 402 (2003). That is, "a causation theory must have some basis in established fact" and "a basis in only slight evidence is not enough." Skinner, 445 Mich at 162-163.
Defendant relies on Stefan v White, 76 Mich App 654, 275 NW2d 206 (1977), to support its argument that summary disposition is appropriate because plaintiff is merely speculating as to the cause of her fall. Stefan involved a plaintiff who tripped and fell at the defendant's home. Id. at 656. The plaintiff was deposed and testified that she did not know how or why she fell. Id. The plaintiff stated, "I don't recollect anything . . . I don't know what happened. I just went down." Id. at 657. The Stefan Court found that this testimony contradicted the complaint and negated a causal relationship between the plaintiff's fall and the defendant's premises. Id. at 660. The plaintiff's deposition testimony in Stefan demonstrated that she had no knowledge of the actual cause of her. Id. Accordingly, the Stefan Court concluded that the mere occurrence of the plaintiff's fall is not enough to raise an inference of negligence on the part of the defendant. Id. at 661.
Stefan is distinguishable from the case at bar because plaintiff offered a reasonable theory of causation with respect to her fall. Plaintiff testified that "[a]ll I can tell you is I hit the remote [to open the car garage], and next thing -- and I'm walking to the car, and I'm on the ground. And that's just how it happened." After plaintiff fall, she did not touch the ground or look to see if there was ice where she fell. However, when asked, "[w]hy do you think it was black ice?" she simply stated, "[b]ecause I slipped." We note that if this were the extent of evidence presented, plaintiff's theory, that black ice caused her to slip and fall, could be found to have been premised on mere speculation and conjure. However, there are more facts in the record that could support a reasonable inference of plaintiff's causation theory.
Plaintiff testified that she slipped and fell backwards onto her buttocks in defendant's parking lot. After she fell, EMS personnel arrived at the scene. They placed her on a (spine) board, stabilized her foot, and then attempted to lift the board from the ground; however the EMS technician slipped and lost his footing. According to plaintiff, the EMS technician then easily slid the board along the parking lot without the aid of wheels or rollers. A fireman, who also arrived at the scene, testified that he did not recollect seeing any ice or the EMS technician slipping or the EMS technician sliding the board along the parking lot. The fireman acknowledged that he did not leave his truck and that he had little memory of the incident independent of his report. Despite his testimony, the EMS report indicated that the primary complaint was "slip and fall on ice." There was also evidence that the a few days before her fall there was mild precipitation and that the temperatures on the days leading to the incident fluctuated between below and above freezing. On the morning plaintiff fall, the temperature was below freezing. The record indicates that plaintiff pinpointed the area in which she fell, she described the mechanics of her fall, i.e., slipping and falling backwards onto her buttocks, and she observed the EMS technician slipping in the same area. While there is no direct evidence of the existence of ice, the circumstantial evidence gives rise to a reasonable inference that plaintiff fell on black ice. Accordingly, plaintiff's theory of causation is not premised on mere speculation and conjecture. We conclude that there is an issue of material fact regarding the cause of plaintiff's fall, and therefore, summary disposition was not proper.
Finally, defendant argues that the circuit court correctly granted summary disposition in its favor because it had no notice the condition. We decline to address this issue because the record in not sufficiently developed to allow us to make a ruling on this issue. In sum, we conclude that there is a question of fact regarding whether the condition on the premises was open and obvious. We also conclude that plaintiff has offered sufficient evidence to create a material question of fact on the element of causation. Therefore, summary disposition was inappropriate and the circuit court erred in granting summary disposition in favor in defendant.
Reversed.
Cynthia Diane Stephens
Amy Ronayne Krause