KATHERINE JEAN HAY V MCKINLEY & ASSOCIATES INC
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STATE OF MICHIGAN
COURT OF APPEALS
KATHERINE JEAN HAY and JOHN HAY,
UNPUBLISHED
December 16, 2010
Plaintiffs-Appellants,
v
No. 291594
Washtenaw Circuit Court
LC No. 07-001344-NO
McKINLEY & ASSOCIATES, INC.,
Defendant-Appellee.
Before: SAWYER, P.J., and FITZGERALD and SAAD, JJ.
FITZGERALD, J. (dissenting).
I respectfully dissent from the majority’s conclusion that plaintiffs failed to produce
sufficient evidence to create a genuine issue of material fact as to whether the ice upon which
plaintiff Katherine Hay fell was open and obvious.
Ice that is not visible, such as black ice, is not necessarily open and obvious. Slaughter v
Blarney Castle Oil Co, 281 Mich App 474, 483; 760 NW2d 287 (2008). Rather, its status
depends on whether there is evidence that the ice in question was visible to a casual inspection,
or whether there were other indicia of a potential danger. Id. Such other indicia may include
circumstances such as the presence of snow in the area or covering the ice, the recent occurrence
of any type of precipitation combined with freezing temperatures, or a situation where the
plaintiff observed others slipping before she herself slipped. Id. at 479-481.
Here, plaintiffs’ three witnesses indicated that the ice on which plaintiff slipped appeared
to be the same color as the pavement and was not clearly visible. Defendant produced
photographs of the scene, taken within minutes of the incident, in which the ice is clearly visible
and distinct from the surrounding pavement. However, the witnesses testified that these
photographs do not accurately reflect what was visible to the naked eye. Additionally, plaintiff
testified that she had not encountered any other snow or ice while travelling that day, though it
may have snowed lightly the day before. Finally, there is no evidence that plaintiff saw or heard
about anyone else slipping in the location where she fell.
When viewed in the light most favorable to the plaintiffs, the witnesses’ testimony casts
doubt on the relevance of defendant’s photographic evidence. Also, according to the testimony,
the ice was not visible and there were no indicia of a hazardous condition. The evidence
therefore leaves open a genuine issue of material fact as to whether an average person could have
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detected the presence of the ice by a casual inspection. In my view, summary disposition in
favor of defendant was inappropriate. I would reverse and remand.
/s/ E. Thomas Fitzgerald
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