MELISSA SANCHEZ V BATTLE CREEK REALTY
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
MELISSA SANCHEZ,
UNPUBLISHED
June 22, 2004
Plaintiff-Appellant,
v
No. 249437
Calhoun Circuit Court
LC No. 02-000461-NO
BATTLE CREEK REALTY, d/b/a, AVON
WOODS MOBILE HOME PARK,
Defendant-Appellee,
and
DENMARK MANAGEMENT CO.,
Non-Participating Defendant.
Before: Fitzgerald, P.J., and Bandstra and Schuette, JJ.
PER CURIAM.
In this premises liability action, plaintiff appeals as of right a trial court order granting
defendant’s motion for summary disposition pursuant to MCR 2.116(C)(10). We affirm.
We review a trial court’s ruling on a motion for summary disposition under MCR
2.116(C)(10) de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201
(1998). When reviewing a motion for summary disposition under MCR 2.116(C)(10), we
consider the affidavits, pleadings, depositions, admissions, and documentary evidence submitted
by the parties in the light most favorable to the nonmoving party. Stevenson v Reese, 239 Mich
App 513, 516; 609 NW2d 195 (2000). The motion should be granted if the affidavits or other
documentary evidence demonstrate that there is no genuine issue with respect to any material
fact, and the moving party is entitled to judgment as a matter of law. Id.
This case arises out of injuries plaintiff sustained when she slipped and fell on a small
patch of ice while getting into her car. The car was parked on the street in front of her mobile
home, situated on a trailer lot she leased from defendant. Plaintiff sued defendant arguing that
defendant breached its duties to: maintain the premises in a safe condition free from danger;
warn her of dangers that may cause an unreasonable risk of harm to persons on the premises;
remove the hazard of ice in the roadway within a reasonable time after the hazard was formed;
and operate its business in accordance with state law.
-1-
Defendant moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that
there was no genuine issue of material fact that it had no duty to remove snow and ice from the
road where plaintiff fell. Defendant relied on community rules and regulations which provide
that plaintiff is responsible for removing snow and ice from her “parking area.” Defendant
argued that this includes the road in front of her mobile home, where it was the custom and habit
of mobile home residents to park. Defendant also argued that even if it had a duty to remove
snow from the road where plaintiff fell, the ice on which plaintiff slipped and fell was open and
obvious, thereby relieving it of liability under the general rule that a premises possessor is not
required to protect an invitee from open and obvious dangers. Lugo v Ameritech Corp, Inc, 464
Mich 512, 517; 629 NW2d 384 (2001).
The trial court determined that summary disposition in favor of defendant was
appropriate because there was no genuine issue of material fact regarding necessary elements of
plaintiff’s claim, stating the following reasons for its decision:
1. The Plaintiff has failed to establish by admissible evidence that the Defendant
owed a duty to Plaintiff to take reasonable measures to diminish the hazard of
injury due to snow or ice accumulations in the area where she fell. The Plaintiff
entered into a one-year lease with the Defendant, and by statute, the parties may
modify or shift responsibilities and obligations imposed by the statute where, as
here, the lease is for one year or longer. MCL 554.139(2). In this case, the
evidence clearly establishes that it was the Plaintiff’s duty – and not the
Defendant’s duty – to shovel and clear the area of ice and snow in her parking
area, which is where the Plaintiff slipped and fell.
Indeed, the undisputed evidence is that it was Plaintiff’s father who had in fact
previously shoveled the area. As there is no genuine issue of material fact
regarding any duty of the Defendant to keep the area where Plaintiff fell clear of
ice and snow, a necessary element of Plaintiff’s claim has not been established,
and Summary Disposition is appropriate.
2. Even if there was a genuine issue of material fact regarding a duty of the
Defendant to keep the area where Plaintiff fell clear of accumulated ice and snow,
from the evidence presented, there is no showing by the Plaintiff that Defendant
failed to take reasonable measures within a reasonable period of time after an
accumulation of snow and ice to diminish the hazard of injury to Plaintiff.
The evidence submitted establishes that there had not been any recent appreciable
accumulation of snow and or ice. In fact, the records indicate that there had been
a total accumulation of two inches of snow since January 1, with ground
accumulation steadily decreasing from 16 inches on January 1, to eight inches on
January 28. Temperatures during this same period of time generally were at or
above freezing during the day and below freezing at night. There is no evidence
that reasonable measures prior to the Plaintiff’s fall on this patch of ice would
have included sanding, plowing, shoveling, etc. The presence of a nine inch patch
of ice in an outdoor parking area in Michigan in the middle of winter is not prima
facie evidence of an unreasonable risk of harm. Nor is it sufficient evidence to
create a genuine issue of material fact that the Defendant breached a duty to
-2-
properly maintain the premises by taking action to diminish the hazard. As stated
in Quinlivan v The Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244[; 235
NW2d 732] (1975), invitors are not absolute insurers of the safety of their
invitees.
Since there is no genuine issue of material fact that the Defendant owed a duty to
Plaintiff to keep the area where she fell clear of accumulated ice and snow; and
since there is no genuine issue of material fact that the Defendant knew or should
have known of the presence of the hazard and that the hazard constituted an
unreasonable risk of harm, the Defendant’s Motion should be granted.
Plaintiff first argues that the trial court erred in granting defendant’s motion for summary
disposition on the basis that it was her duty to clear the snow and ice from her “parking area,”
even though it was on the road. We agree.1 Defendant’s community rules and regulations,
which all lessees are bound to through the terms of the lease agreement, contain the following
provision regarding snow removal:
Snow removal is the responsibility of the Resident. Snow and ice are to be
removed from all driveways (parking areas), sidewalks, steps and patios on the
home site. Do not shovel snow into the streets. Management will plow the roads
when necessary, but they are not responsible for the above mentioned items.
Defendant argued, and the trial court agreed, that it was clearly plaintiff’s responsibility to
remove snow from her “parking area” on the street. However, under the clear terms of the rules
and regulations, the terms “parking areas” and “driveways” are synonymous. A “road” is clearly
a separate area, for which defendant specifically undertook plowing responsibility. While these
provisions may arguably have been modified by the residents’ habit or custom of parking on and
shoveling the road, there is at least a genuine issue of material fact that plaintiff’s duty to remove
snow does not extend to the road. Therefore, the trial court’s grant of summary disposition in
favor of defendant on this basis was error.
However, plaintiff next argues that the trial court erred in granting summary disposition
in favor of defendant on the basis that even if defendant had a duty to remove snow from the
road, she failed to demonstrate a genuine issue of material fact that the patch of ice constituted an
unreasonable risk of harm, or that if it did, that defendant failed to take reasonable measures to
1
We note plaintiff’s argument that defendant, as a lessor, covenants to its lessees to keep the
residential premises in reasonable repair, pursuant to MCL 554.139(b), and that defendant cannot
delegate such statutory duty through community rules and regulations. However, MCL
750.139(2) provides that parties to a lease of at least one year duration may modify the
obligations imposed by MCL 554.139. Here, plaintiff and defendant entered into a one-year
lease; therefore, the statutorily imposed obligations were properly modifiable through the
provisions set out in the community rules and regulations.
-3-
diminish the hazard.2 We disagree. Our Supreme Court has held that an “invitor’s legal duty is
‘to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a
dangerous condition of the land’ that the landowner knows or should know the invitees will not
discover, realize, or protect themselves against.” Bertrand v Alan Ford, Inc, 449 Mich 606, 609;
537 NW2d 185 (1995), quoting Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 499;
418 NW2d 381 (1988).
We agree with the trial court’s determination that plaintiff did not come forward with
enough evidence to demonstrate a genuine issue of material fact that defendant’s breach of its
duty by failing to plow was the proximate cause of her slipping on the extremely small patch of
ice at issue here. Plaintiff did not show that the conditions made it necessary for defendant to
plow the road. Indeed, the weather records reveal that there had been no precipitation for at least
forty-three hours before plaintiff fell, and that there had been only a light dusting of snow before
that. Further, even if plaintiff had demonstrated that it was necessary for defendant to plow the
road, she did not show that defendant’s failure to do so was the proximate cause of her injuries.
That is, plaintiff did not show that plowing the road would have eliminated the patch of ice upon
2
We note that defendant moved for summary disposition on the alternative basis that even if it
did owe plaintiff a duty, the icy patch was open and obvious, and therefore it was relieved of
liability for plaintiff’s injuries. While the trial court did not feel the need to reach this argument,
we will briefly address it in any event. “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, supra at 516. “However, this duty does not
generally encompass removal of open and obvious dangers,” which exist “where the dangers are
known to the invitee or are so obvious that the invitee might reasonably be expected to discover
them.” Riddle v McLouth Steel Products Corp, 440 Mich 85, 96; 485 NW2d 676 (1992).
The test to determine if a danger is open and obvious is whether “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 (On
Remand), 198 Mich App 470, 475; 499 NW2d 379 (1993). Because the test is
objective, this Court “look[s] not to whether plaintiff should have known that the
[condition] was hazardous, but to whether a reasonable person in his position
would foresee the danger.” Hughes v PMG Bldg, Inc, 227 Mich App 1, 11; 574
NW2d 691 (1997). [Joyce v Rubin, 249 Mich App 231, 238-239; 642 NW2d 360
(2002).]
Here, while a reasonable person in plaintiff’s position may possibly have been able to
foresee the danger of black ice on a winter day in Michigan, we are not convinced that an
average user with ordinary intelligence would have been able to discover the danger and risk of
the black ice upon casual inspection. Plaintiff’s mother testified that when plaintiff fell, a “little
bit” of snow was brushed away, revealing a patch of the size of a nine-inch pie plate. Plaintiff’s
friend also testified that when plaintiff fell, “a thin layer of snow [] was moved,” revealing a
patch of ice. Therefore, we are not persuaded that the patch of ice upon which plaintiff fell was
open and obvious.
-4-
which she was injured or prevented its concealment by blowing snow. Therefore, we agree with
the trial court that summary disposition in favor of defendant was appropriate; there was no
genuine issue as to any material fact that defendant’s breach of duty, if any, was the proximate
cause of plaintiff’s injuries.
We affirm.
/s/ E. Thomas Fitzgerald
/s/ Richard A. Bandstra
/s/ Bill Schuette
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
