MARILYNNE BURTON V MUFFLER MAN
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STATE OF MICHIGAN
COURT OF APPEALS
MARILYNNE BURTON,
UNPUBLISHED
January 12, 2010
Plaintiff-Appellant,
v
No. 288749
Oakland Circuit Court
LC No. 2007-087750-NO
MUFFLER MAN,
Defendant-Appellee,
and
JAMES CHRISTENSEN PROPERTIES, JAMES
CHRISTENSEN, CMS OIL COMPANY, INC.,
WILSON ASSOCIATES, HUBBELL ROTH &
CLARK, INC., VILLAGE OF LAKE ORION,
CARL SCHULTZ, INC., and CARL SCHULTZ,
Defendants.
Before: Murphy, C.J., and Jansen and Zahra, JJ.
MURPHY, C.J. (concurring).
On the issue of unavoidability as a potential special aspect that would preclude dismissal
under the open and obvious danger doctrine, plaintiff has simply failed to submit sufficient
documentary evidence necessary to create an issue of fact on the matter, MCR 2.116(C)(10).
The majority opinion does not directly confront the issue of whether the hazard was unavoidable,
and I find that if there existed a factual dispute regarding whether the snow-covered ice was
effectively unavoidable, a jury would need to resolve the special aspects question. Accordingly,
I respectfully concur.
In Robertson v Blue Water Oil Co, 268 Mich App 588; 708 NW2d 749 (2005), the
plaintiff slipped and fell on an ice-covered parking lot at the defendant’s gas station when he
walked from the pump where he had fueled his truck to the station’s convenience store. This
Court observed:
“Special aspects” exist if the condition “is effectively unavoidable” or
constitutes “an unreasonably high risk of severe harm.” However, the risk must be
more than merely imaginable or premised on a plaintiff's own idiosyncrasies. An
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open and obvious accumulation of snow and ice, by itself, does not feature any
“special aspects.” Plaintiff has not cross-appealed the trial court's conclusion that
there was no unreasonably high risk of harm, so we limit our analysis to whether
the condition was effectively unavoidable.
Defendant argues that the condition was effectively avoidable because
plaintiff could have gone to a different service station to make his purchases of
fuel, coffee, and windshield washer fluid. However, one of the characteristics of
the icy condition is that it was brought about by an unusually severe and uniform
ice storm covering the entire area. Plaintiff patronized defendant's station almost
every weekday pursuant to his employer's directions to fuel his truck first thing in
the morning, and he intended to purchase wiper fluid because he was out of fluid
and the weather was bad. The record contains no evidence that there existed any
available alternatives. Even if there were, the scope of the inquiry is limited to
“the objective nature of the condition of the premises at issue.” Therefore, the
only inquiry is whether the condition was effectively unavoidable on the
premises. Here, there was clearly no alternative, ice-free path from the gasoline
pumps to the service station, a fact of which defendant had been made aware
several hours previously. The ice was effectively unavoidable. [Id. at 593-594
(citations omitted).]
Analysis of special aspects entails a determination whether an unreasonable risk of harm
existed despite the open and obvious nature of the hazard, which can be the case where a hazard
is effectively unavoidable. Lugo v Ameritech Corp, Inc, 464 Mich 512, 517-518; 629 NW2d 384
(2001). The Lugo Court stated:
[W]e conclude that, with regard to open and obvious dangers, 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.
An illustration of such a situation might involve, for example, a
commercial building with only one exit for the general public where the floor is
covered with standing water. While the condition is open and obvious, a customer
wishing to exit the store must leave the store through the water. In other words,
the open and obvious condition is effectively unavoidable. [Id.]
Here, plaintiff merely testified that “there was ice all where my car was.” This is simply
inadequate to create a factual dispute on unavoidability. Minimally, the evidence needed to
clearly show that it was impossible to access the car without traversing ice-covered snow. There
was also the possibility of plaintiff asking one of defendant’s employees to bring the car up. In
sum, plaintiff failed to establish an issue of fact on unavoidability.
I respectfully concur.
/s/ William B. Murphy
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