PERRY M KANTNER V ANN ARBOR TOWER PLAZA
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STATE OF MICHIGAN
COURT OF APPEALS
PERRY M. KANTNER, d/b/a KANTNER &
ASSOCIATES,
UNPUBLISHED
November 16, 2004
Plaintiff-Appellant,
v
ANN ARBOR TOWER PLAZA
CONDOMINIUM ASSOCIATION, KRAMER
TRIAD MANAGEMENT GROUP, and TRIAD
MANAGEMENT CORPORATION,
No. 250202
Washtenaw Circuit Court
LC No. 01-000032-NI
Defendant-Appellees.
Before: Cooper, P.J., and Fitzgerald and Hoekstra, JJ.
HOEKSTRA, J., (dissenting).
I respectfully dissent.
The question in this case is essentially the same as that presented in Kenny v Kaatz
Funeral Home Inc, __ Mich App __; __ NW2d __ (Docket No. 248720, issued October 12,
2004): “[C]an it be said, as a matter of law, that a reasonably prudent person with ordinary
intelligence would have been able to perceive and foresee the dangerous condition.” Id. at slip
op p 6. [emphasis in original] However, because there are significant factual differences from
those presented in Kenny, I conclude that the answer in this case is “yes.”
Here, plaintiff was aware that on the day of this occurrence, January 12, 1998, it rained
and sleeted while he was indoors working. Plaintiff left work at 7:15 p.m. and was injured
walking to his car. Any reasonably prudent person living and working in Michigan during the
winter months understands that rain and sleet during the daylight hours can result in the
formation of black ice, particularly as temperatures drop during the nighttime. Thus, plaintiff
had sufficient knowledge to foresee the possibility of ice forming and should have been on the
lookout for it. Additionally, no covering of snow, nor any other circumstance prevented plaintiff
from discovering the icy condition.
Further, the majority’s analysis regarding whether defendants had notice of the icy
condition is immaterial because plaintiff makes no claim that special aspects existed that would
have made the icy condition unreasonably dangerous. Mann v Shusteric Enterprises Inc, 470
Mich 320, 332-333; 683 NW2d 573 (2004). Nor could such a claim be made successfully under
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the circumstances of this case. The black ice that plaintiff slipped on was not covered or
obscured. And the location of plaintiff’s fall was on decorative paving bricks located between
the curb and sidewalk. Thus, the location of plaintiff’s fall was easily avoidable. Consequently,
I would affirm.
/s/ Joel P. Hoekstra
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