CLAUDIA GERBEN V NORTHVILLE DOWNS
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STATE OF MICHIGAN
COURT OF APPEALS
CLAUDIA GERBEN,
UNPUBLISHED
Plaintiff-Appellee,
v
No. 201820
Wayne Circuit Court
LC No. 95-513892 NO
NORTHVILLE DOWNS,
Defendant-Appellant.
Before: Griffin, P.J., and Gribbs and Talbot, JJ.
GRIBBS, J., (dissenting).
I respectfully dissent. In cases involving question of credibility, summary judgment is hardly ever
appropriate. Michigan Nat’l Bank-Oakland v Wheeling, 165 Mich App 738, 744-745; 419 NW2d
746 (1988). I do not believe summary disposition is appropriate here.
First, I believe there was ample circumstantial evidence of proximate cause. The majority
asserts that Stefan v White, 76 Mich App 654, 659; 257 NW2d 206 (1997), on which defendant
relies, presents “substantially similar facts.” I disagree. Unlike Stefan, where the plaintiff tripped while
she was walking toward or through the door in a house, this is not a case where plaintiff presented “the
mere occurrence” of a fall with nothing more. Id at 661. Here, unlike Stephan, plaintiff presented a
strong circumstantial showing as to the cause of her fall.
As the trial court suggested, the presence of untouched snow and ice creates a circumstance
from which the jury could infer that plaintiff slipped on the snow or ice. While plaintiff claims to suffer
from memory loss that affected her deposition testimony, she clearly testified in her deposition that she
“went down” while walking in two inches of snow and that the dirt parking lot had not been cleared or
sanded. Plaintiff said that her right leg “went straight out.” Moreover, while plaintiff did not know
exactly what made her slip, it is clear from the questions and her answers at deposition that she did,
indeed, “slip.” In addition, plaintiff submitted evidence of statements she made to police and medical
personnel that she was “just walking and slipped on either snow or ice.” I do not agree that these
statements are in conflict with plaintiff’s deposition testimony. As the trial court reasonably found, a
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jury could infer, from evidence that plaintiff’s leg went out from under her while walking on accumulated
snow and ice in defendant’s parking lot, that plaintiff slipped on the snow or ice.
Nor do I agree that summary disposition was appropriate on the issue of duty. Defendant, as
an alleged invitor, had an affirmative duty to take reasonable measures within a reasonable time after the
accumulation of ice and snow to diminish the hazard of injury to plaintiff, an invitee. Quinlivan v A &
P, 395 Mich 244, 261; 235 NW2d 732 (1975). Plaintiff testified that there were two inches of freshly
fallen snow and that the snow had not been plowed or sanded. Defendant responded that it was
involved in snow removal on the day of plaintiff’s fall, that it had spread salt on its premises and even
hired outside help for snow removal. Whether reasonable measures were taken and whether it would
have been reasonable for defendant to wait until the snow stopped falling before undertaking its removal
is a question for the jury. Lundy v Groty, 141 Mich App 757, 760; 367 NW2d 448 (1985).
I would affirm.
/s/ Roman S. Gribbs
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