GEORGE TIMMERMAN V AUTO ZONE INC
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STATE OF MICHIGAN
COURT OF APPEALS
GEORGE TIMMERMAN,
UNPUBLISHED
December 20, 2002
Plaintiff-Appellant,
v
No. 234779
Hillsdale Circuit Court
LC No. 00-000437-NO
AUTO ZONE, INC,
Defendant-Appellee.
Before: Whitbeck, C.J., and Zahra and Murray, JJ.
PER CURIAM.
Plaintiff George Timmerman appeals as of right following the trial court’s order granting
summary disposition to defendant Auto Zone, Inc., in this premises liability action. We affirm.
We decide this case without oral argument pursuant to MCR 7.214(E).
I. Basic Facts And Procedural History
On December 22, 1998, at around 9:15 a.m., Norman Ledyard drove Timmerman to the
Auto Zone store in Hillsdale, Michigan. Ledyard stopped the car so Timmerman could enter the
store directly, without crossing the parking lot. Ledyard, who did not go in the store, then parked
his car in the fourth space from the front door. This was the first space available in which he
could park because the first two spaces were designated for handicapped parking and another
vehicle was occupying the third space. When Timmerman completed his purchases in the store,
he walked toward where Ledyard had parked the car. As Timmerman was cutting across the two
empty handicapped parking spaces, he slipped and fell on ice. He hit his left shoulder and
elbow, as well as his head, on the concrete surface. Ledyard did not see the accident, but saw
Timmerman on the ground. After Ledyard helped him to his feet, Timmerman went into the
store to tell employees about his fall and to warn them that they needed to salt or sand the area to
reduce the slippery conditions.
In April 2000,Timmerman sued Auto Zone. He claimed that he suffered severe injuries
in his slip and fall on the ice and that Auto Zone had breached its duty to salt, sand, or take other
precautions to prevent his accident. As one of its affirmative defenses, Auto Zone claimed that
the ice was open and obvious, and therefore it was not liable for Timmerman’s injuries.
In April 2001, Auto Zone moved for summary disposition, arguing that the slippery
condition was not only open and obvious, but that it was apparent that Timmerman could have
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walked safely to the car by using the sidewalk, which was clear of ice and snow, rather than
cutting across the parking spaces. As support for this argument, Auto Zone pointed to
Timmerman’s deposition testimony, in which he admitted that he was not watching where he
was walking when he slipped and fell even though he was aware of the cold temperature and
snow on the ground. Asked whether, when leaving the store, he had seen any ice between the
store’s front door and the place he slipped, Timmerman said, “I didn’t recognize any ice. I
wasn’t looking down.” In fact, Timmerman did not see the ice even after he fell. He formed his
opinion regarding the cause of his accident from Ledyard’s observations. Ledyard described the
parking space where Timmerman fell as being covered by a mixture of bare, icy, and snowy
patches. Ledyard clarified that snow was not covering the ice and that he “knew there was ice on
[the parking space] when I pulled in[to the parking lot]. You could see ice on the concrete.”
Ledyard, however, said he did not tell Timmerman about the icy conditions. Ledyard also said
that he did not observe anything that looked like salt in the space where Timmerman fell, though
he assumed that the store had been open since 8:00 that morning. When asked whether “there
really was any other way to walk where the car was parked without going over the ice,” Ledyard
replied, “Yes. Right up the sidewalk.” Ledyard, however, said that if someone were to walk
through the parking lot, that person would have to encounter the ice to get to a parked car.
The trial court heard arguments on the motion for summary disposition in May 2001. At
the time, the trial court was concerned with the evidence not in the record, such as the time the
store opened or when the snow and ice accumulated. At the conclusion of the brief hearing, the
trial court announced its decision from the bench. After reviewing the legal standards applicable
to a motion for summary disposition brought under MCR 2.116(C)(10), the trial court said:
I have read the deposition of plaintiff. Said he fell in handicap spot.
Wasn’t looking where he was going. Doesn’t know what he fell on. There is
snow on the ground. It was cold. Doesn’t know if the parking lot was snow
covered. Doesn’t know if the parking lot was plowed. Claims the parking lot
wasn’t salted.
Deposition of Mr. Ledyard. There was ice on the lot. You could see ice
on the concrete. It was on the ground. He had no problem seeing the ice there.
The ice was not covered with snow. Said that his friend, Mr. Timmerman, could
have walked on the sidewalk, sidewalk had no obstructions. Just in part that’s
what transpired.
***
I have not – I have not one reference to a deposition. I have not one
photograph. I have no affidavits. I have no documentary evidence whatsoever.
The nonmoving party must by documentary evidence set forth specific
facts showing there is a genuine issue for trial and may not rest upon mere
allegations or denials in the pleadings. . . . That’s what the Supreme Court
requires. I don’t have it. All I’ve got is general denials, mere allegations.
The trial court concluded that the record was insufficient for it to allow the case to go to trial.
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On appeal, Timmerman contends that the trial court erred in granting the motion for
summary disposition because: (1) the ice was not open and obvious; (2) even if the ice was open
and obvious, Auto Zone had an obligation to reduce the risk the ice posed; and (3) the trial court
erred in requiring him to meet a higher evidentiary burden than the standards for deciding a
motion for summary disposition require.
II. Standard Of Review
This Court reviews de novo a trial court’s decision to grant a motion for summary
disposition.1
III. Summary Disposition
A motion for summary disposition under MCR 2.116(C)(10) tests the factual
underpinnings of a claim other than an amount of damages, and the deciding court considers all
the evidence, affidavits, pleadings, admissions, and other information available in the record.2
The deciding court must look at all the evidence in the light most favorable to the nonmoving
party, who must be given the benefit of every reasonable doubt.3 “The court is not permitted to
assess credibility, or to determine facts on a motion for summary judgment.”4 Only if there is no
factual dispute would summary disposition be appropriate.5 However, the nonmoving party must
present more than mere allegations in order to demonstrate that there is a genuine issue of
material fact in dispute, making trial necessary.6
IV. Premises Liability
“[A] landowner has a duty to exercise reasonable care to protect an invitee from an
unreasonable risk of harm caused by a dangerous condition on the land.”7 A landowner typically
does not have a duty to remove open and obvious dangers because the invitee knows or can
reasonably be expected to discover the dangerous conditions himself.8 In this case, the evidence
on the record establishes that the icy condition of the parking space was open and obvious
because an “average” person “with ordinary intelligence [would] have been able to discover the
danger and the risk presented upon casual inspection.”9 Ledyard testified directly that the icy
1
Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).
2
MCR 2.116(G)(5); Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999).
3
Atlas Valley Golf & Country Club, Inc v Village of Goodrich, 227 Mich App 14, 25; 575 NW2d
56 (1998).
4
Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994).
5
See Auto Club Ins Ass’n v Sarate, 236 Mich App 432, 437; 600 NW2d 695 (1999).
6
MCR 2.116(G)(4); Etter v Michigan Bell Telephone Co, 179 Mich App 551, 555; 446 NW2d
500 (1989).
7
Corey v Davenport College of Business, 251 Mich App 1, 3; 649 NW2d 392 (2002).
8
Id.
9
Novotney v Burger King Corp (On Remand), 198 Mich App 470, 475; 499 NW2d 379 (1993).
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condition was plainly visible as he drove into the parking lot. Timmerman, who said that he was
not watching where he was walking, pointed to no contradictory evidence. The record leaves no
doubt that an average person with ordinary intelligence would have been able to discover the icy
concrete and the risk it presented had they been looking at the ground.
Because there is no factual dispute that this danger was open and obvious,
“the critical question is whether there is evidence that creates a genuine issue of
material fact regarding whether there are truly ‘special aspects’ of the open and
obvious condition that differentiate the risk from typical open and obvious risks
so as to create an unreasonable risk of harm, i.e., whether the ‘special aspect’ of
the condition should prevail in imposing liability upon the defendant or the
openness and obviousness of the condition should prevail in barring liability.”[10]
Although he never uses the precise terminology, Timmerman contends that the special aspect of
this ice was that an invitee had no choice but to encounter it in order to reach a car parked in the
parking lot. However, he points to no place in the record that says that the ice was unavoidable.
In fact, Ledyard said that people could avoid the ice simply by walking on the cleared sidewalk.
Evidently, only a person who steered clear of the safe sidewalk to cross the openly and obviously
icy parking lot itself would encounter the ice. Thus, as in other recent cases involving slips and
falls on ice, the trial court properly granted summary disposition to Auto Zone.11
Further, though Timmerman contends that the trial court applied an incorrect evidentiary
burden to him when examining the evidence, we disagree. Case law does not require a party
opposing summary disposition to present additional evidence to counter the grounds for the
motion – at least if the evidence presented by the moving party reveals a material factual dispute.
Still, as the trial court properly recognized, if the moving party’s evidence on the record supports
granting the motion for summary disposition, the nonmoving party must come forward with
evidence of the material factual dispute to survive the motion.12 Timmerman did not do so.
Affirmed.
/s/ William C. Whitbeck
/s/ Brian K. Zahra
/s/ Christopher M. Murray
10
Corey, supra at 6, quoting Joyce v Rubin, 249 Mich App 231; 642 NW2d 360 (2002), quoting
Lugo v Ameritech Corp, Inc, 464 Mich 512, 517-518; 692 NW2d 384 (2001).
11
See Corey, supra at 6-9.
12
See MCR 2.116(G)(4).
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