JOHN DELAY V MCLAREN REGIONAL MEDICAL CENTER
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STATE OF MICHIGAN
COURT OF APPEALS
JOHN DELAY and VICKI DELAY,
UNPUBLISHED
December 13, 2002
Plaintiffs-Appellants,
v
McLAREN REGIONAL MEDICAL CENTER,
No. 239768
Genesee Circuit Court
LC No. 01-069408-NI
Defendant-Appellee.
Before: Bandstra, P.J., and Zahra and Meter, JJ.
PER CURIAM.
Plaintiffs appeal by right from an order granting summary disposition to defendant in this
negligence case. We affirm.
On January 12, 2001, plaintiffs filed a complaint alleging that plaintiff John Delay
(hereinafter “Delay”) sustained a broken leg and other injuries on February 18, 2000, when he
slipped while walking in a Flint parking lot owned by defendant. The complaint asserted that
Delay, at the time of the accident, was employed by Burns Security, was assigned to the
McLaren Regional Medical Center, and slipped on ice in the parking lot while “in the process of
getting a car for a person who was at the hospital.” Plaintiffs alleged that defendant negligently
failed to maintain the parking lot in a safe condition, negligently failed to inspect the parking lot,
and negligently failed to remove snow and ice from the parking lot. Delay’s wife, Vicki,
claimed loss of consortium as a result of Delay’s injuries.
On December 14, 2001, defendant moved for summary disposition under MCR
2.116(C)(10), claiming that (1) the “natural accumulation of snow and/or ice” on which Delay
allegedly slipped was an open and obvious condition with respect to which no duty existed; (2)
defendant was not negligent because it “complied with its obligation to take reasonable measures
within a reasonable period of time after the accumulation [of] snow and ice to diminish the
hazard . . .;” and (3) Delay, as an employee of Burns Security, which contracted with defendant,
was a co-employee of defendant and thus was obligated to use workers’ compensation as his
exclusive remedy.
Defendant attached to its motion the deposition of Delay. Delay testified, in part, as
follows: The accident occurred around 8:30 p.m. – after dark – on the day in question. The
temperature was “approximately 28 degrees,” and there “was a wet snow, on and off,” that had
been occurring all day and that was sticking to the ground. He was assigned to a security cruiser
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by Burns Security. In the evenings, it was his job to retrieve vehicles from the hospital’s valet
parking lot. He drove to the lit valet lot to retrieve a vehicle and noted that “there [were] no
tracks in any of the snow, and the snow was approximately four inches deep, five inches deep.”
It appeared to him that the lot had not been cleared that day, despite the wet and heavy snow. As
he was clearing the windows of the vehicle he had set out to retrieve, he slipped on some ice
hidden underneath the snow and broke his leg. He had to have a plate and screws installed in his
leg.
Delay admitted that “there was a lot of snow” and that “they attempted to keep [the lots]
clear the best they could . . . .” He further admitted that he did not complain to anyone that the
lots had not been sufficiently cleared on the day in question.
Among other documents, defendant also attached to its motion the deposition of Rande
Lake, a maintenance supervisor with defendant. Lake testified that no formal records were kept
regarding when each lot was plowed on the day in question but noted that “[w]e followed our
policy and our practices.” He testified that overtime employees were brought in to clear snow
that day and that the valet lot was likely cleared of snow approximately every hour. He also
noted that a process was in place by which security employees could contact the engineering
department through the operator if they believed that a particular area needed plowing. He
stated:
It can be done one of several ways. A phone call to our office should be
general operating hours [sic] and we’ll relay the message to the folks that are
outside. The operator takes calls and relays by means of radio, a handy talky [sic]
that the truck drivers carry with them or snowplow drivers carry with them. And
the crew themselves are in communication with each other as they’re out in the
lots taking care of business.
Lake asserted that security people in the past had “[a]bsolutely” contacted the engineering
department to clear snow “when they [saw] the need in a particular area . . . .”
On December 26, 2001, plaintiffs filed an answer to defendant’s motion for summary
disposition, arguing that (1) the open and obvious defense was unavailable in this case because
Delay was required to enter the parking lot, despite the danger, as part of his job; (2) there were
questions of fact regarding whether defendant’s snow-clearing efforts on the day in question
were adequate; and (3) Delay was not required to seek solely workers’ compensation benefits
because defendant did not meet its burden of establishing that it and Burns Security were coemployers.
Among other documents, plaintiffs attached to their answer a report filed by another
Burns Security employee who was working on the evening in question. The report noted that the
snow in the lot was approximately four to five inches deep and that the “lots had not been
plowed or salted yet.”
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The trial court ruled for defendant, relying on Lugo v Ameritech Corp, Inc, 464 Mich
512; 629 NW2d 384 (2001).1 The court stated that the snow was “four or five inches” high and
was “open and obvious to the plaintiff on this particular occasion.” The court further stated:
In this particular situation it’s open and obviously, as indicated, the snow,
and ice accompanies snow, it has been snowy wet all day and the Court believes
that the Court has no choice but to grant the motion under Lugo and Denoyer.
The trial court rendered no decision on the workers’ compensation issue, finding that it had too
little information to do so. The court later denied plaintiffs’ motion for reconsideration, stating
that “there is nothing unusual about finding snow and ice in a parking lot in Michigan during a
winter storm” and that “[t]he risk did not remain unreasonable despite its obviousness, and
despite knowledge of it by the invitee.”
Plaintiff now asks us to reverse the trial court’s grant of summary disposition to
defendant. We decline to do so.
We review a trial court’s grant of summary disposition de novo. Wilcoxon v Minnesota
Mining & Mfg Co, 235 Mich App 347, 357; 597 NW2d 250 (1999). In reviewing a motion
granted under MCR 2.116(C)(10), we consider the pleadings, affidavits, depositions, admissions,
and other documentary evidence available to determine if any genuine issue of material fact
exists. Wilcoxon, supra at 357-358. We resolve all legitimate inferences in favor of the
nonmoving party. Id. at 358.
Plaintiffs contend that the trial court should not have granted summary disposition to
defendant because the parking lot was unreasonably dangerous. Plaintiffs concede for purposes
of appeal that the danger was open and obvious2 but contend that because Delay was required to
walk across the parking lot as part of his job, and because the parking lot was dangerous, the
open and obvious defense was inapplicable. Plaintiffs cite Lugo, supra at 517-518, in support of
this proposition. In Lugo, supra at 517, the Court stated:
In sum, the general rule is that a premises possessor is not required to protect an
invitee from open and obvious dangers, but, 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.
The Lugo Court went on to note that an “effectively unavoidable” open and obvious condition
could be considered unreasonably dangerous. Id. at 518. As an example, the Court mentioned
“a commercial building with only one exit for the general public where the floor is covered with
standing water.” Id. at 518.
1
The trial court also relied on the unpublished case of Denoyer v Freedman, unpublished
opinion per curiam of the Court of Appeals, issued August 15, 2000 (Docket No. 218963), in
which the Court held that a mail carrier had no cause of action for negligence after she slipped
and fell on an obviously snowy and icy porch.
2
Despite plaintiffs’ concession, we nonetheless explicitly find that the trial court did not err in
concluding that the condition was open and obvious.
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Plaintiffs contend that the ice and snow at issue in this case are comparable to this
example taken from Lugo. Plaintiffs argue that because Delay had to traverse the ice and snow
or else suffer consequences with regard to his job, the condition was unreasonably dangerous.
While this argument has some appeal in light of the example set forth in Lugo, we note that the
Lugo example is obiter dictum because it was not necessary to the disposition of the case. See,
generally, Luster v Five Star Carpet Installations, Inc, 239 Mich App 719, 730 n 5; 609 NW2d
859 (2000). Accordingly, because the example is obiter dictum, it is not binding upon this Court.
Cheron, Inc v Don Jones, Inc, 244 Mich App 212, 216; 625 NW2d 93 (2000).
A more instructive, and, in our view, dispositive, case is Joyce v Rubin, 249 Mich App
231; 642 NW2d 360 (2002). In Joyce, the plaintiff, who had been working as a live-in caregiver
for one of the defendants, contended that the icy steps on which she fell while moving her
belongings were unreasonably dangerous because she was essentially forced to use the steps. Id.
at 233, 241. The plaintiff contended that her employer demanded she move from the house in
question on a snowy day and “refused to provide safety measures or an alternative route” for
moving her belongings. Id. This Court stated:
Though Joyce says that she had no choice but to traverse the slippery walkway to
the front door, she presents no evidence that the condition and surrounding
circumstances would “give rise to a uniquely high likelihood of harm” or that it
was an unavoidable risk. First, Joyce could have simply removed her personal
items another day or advised Debra Rubin that, if Rubin did not allow her to use
the garage door, she would have to move another day. Further, unlike the
example in Lugo, Joyce was not effectively trapped inside a building so that she
must encounter the open and obvious condition in order to get out. [Id. at 242
(emphasis in original).]
In the instant case, Lake specifically testified that a process was in place by which
security personnel could contact the engineering department to deal with unplowed lots, and
Delay admitted that he did not contact anyone about the valet lot being dangerous. Delay could
have notified the person whose vehicle he was attempting to retrieve from the valet lot that he
had to wait for the snow and ice to be cleared before the vehicle could be retrieved. Delay
proffered no evidence that he would have suffered adverse job consequences for doing this.
Moreover, Delay was not “effectively trapped inside a building so that [he had to] encounter the
open and obvious condition in order to get out.” Id. Accordingly, we hold that “no reasonable
juror could conclude that the aspects of the condition were so unavoidable that [Delay] was
effectively forced to encounter the condition.”3 Id. at 242-243.
In light of Joyce, we hold that the trial court did not err in granting summary disposition
to defendant.
3
Moreover, although plaintiffs do not explicitly argue to the contrary, we note for the sake of
completeness that the open and obvious condition itself (i.e., without regard to its avoidable or
unavoidable nature) was not “so unreasonably dangerous that it would create a risk of death or
severe injury.” Joyce, supra 243.
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Affirmed.
/s/ Richard A. Bandstra
/s/ Brian K. Zahra
/s/ Patrick M. Meter
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