SANDRA NYLAND V KMART
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STATE OF MICHIGAN
COURT OF APPEALS
SANDRA NYLAND and CHARLES NYLAND,
UNPUBLISHED
March 17, 2011
Plaintiffs-Appellants,
v
No. 295464
Muskegon Circuit Court
LC No. 09-046520-NO
KMART,
Defendant-Appellee,
and
WILSON-64, L.L.C.,
Defendant.
Before: SERVITTO, P.J., and GLEICHER and SHAPIRO, JJ.
PER CURIAM.
In this premises liability action, plaintiffs Sandra Nyland and Charles Nyland, husband
and wife, appeal as of right the trial court’s order granting summary disposition in favor of
defendant, Kmart Corporation. We reverse and remand.
This case presents an unusual fact scenario. On March 11, 2007, plaintiff Sandra Nyland
was injured when she fell on the sidewalk outside the front entrance to Kmart at about 9:00 a.m.1
She alleged that there was an approximately three foot area of ice immediately in front of the
entrance to the store that was completely hidden under a layer of sand and that she discovered
the ice only after she was on the ground after falling. The incident report prepared by
defendant’s employee after plaintiff fell was consistent with plaintiff’s testimony. The
employee’s report stated that he inspected the area after the plaintiff’s fall and that he found “ice
1
As a result of the fall, plaintiff tore her rotator cuff and underwent surgery and physical
therapy.
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just outside of the door [that] was covered by a layer of dirt.” It also stated that the condition
formed “overnight” due to “temperature changes.”
Defendant’s loss prevention manager testified that there was an eave or sign over the area
that dripped water allowing water to accumulate in that small area and then to freeze when the
temperature dropped. He testified that when he arrived at about 8:00 that morning he believed
the area was only wet, not icy. He also testified that there was naturally-accumulating dirt
covering the area, not sand, and that no sand had been intentionally placed over the area. He
agreed that about an hour before plaintiff fell he “didn’t see or notice anything that was an
obvious danger that a patron walking in would have to be concerned about.” The manager
conceded that when he went to the site of plaintiff’s fall after she fell he found “a slippery area,”
but testified that he did not move the dirt to see if there was ice below it. He also testified that
while the store typically salts icy areas, the store was out of salt that day. Finally, he testified
that it was store protocol to take a photo of the relevant area when a customer slips and falls, but
that he could not locate any photo taken that morning in response to plaintiff’s request for
production.
Defendant moved for summary disposition pursuant to MCR 2.116(C)(10) on the
grounds that the hazard that caused plaintiff to fall was open and obvious and that there were no
special aspects present making it unavoidable or unreasonably dangerous. The trial court granted
the motion. We review that decision de novo. Ormsby v Capital Welding, Inc, 471 Mich 45, 52;
684 NW2d 320 (2004). In doing so, we consider the affidavits, depositions, pleadings,
admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party. Rose v Nat’l Auction Group, Inc, 466 Mich 453, 461; 646 NW2d 455 (2002).
Summary disposition is appropriate where there is no genuine issue regarding any material fact
and the moving party is entitled to a judgment as a matter of law. Id.
It is undisputed that the ice was covered and not visible. Whether one adopts plaintiff’s
testimony that the area was covered in sand, or the testimony of defendant’s employees that the
area was covered by a “layer of dirt,” the record does not support the conclusion that, as a matter
of law, the ice was visible by casual observation. Typically, if a hazard cannot be seen, it cannot
be construed as open and obvious. The evidence agrees that no one discerned the presence of the
ice before plaintiff fell.
The parties do not dispute that the weather was sunny, that it had not snowed for several
days and, most important, that there was no snow or ice anywhere in the parking lot or
walkways, other than the patch of ice under the dirt. Whether the dirt was placed to cover the ice
specifically, or came to cover it accidentally, when plaintiff encountered the soil, the danger of
slipping on an icy surface was simply indiscernible. Moreover, unlike the conditions described
in Ververis v Hartfield Lanes, 271 Mich App 61; 718 NW2d 382 (2006), the existing weather
conditions afforded no warning that potentially slippery patches of ice endangered patrons
entering the store.
One can certainly argue that it would have been more prudent to walk around the dirtcovered area, as the dirt may have suggested the possibility that there was something different
about the area. Indeed, plaintiff conceded at her deposition that had she noticed the sand, she
would likely have walked around it because “[she] would have thought there would have been a
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reason for it to be there.” Plaintiff’s testimony in this regard is clearly relevant to the existence
of comparative negligence as she admitted that she did not notice the dirt-covered area and that if
she had she would have avoided it even though she was not aware of any specific hazard.
However, this arguably insufficient level of subjective attention does not render the hidden ice
open and obvious as a matter of law. “When deciding a summary disposition motion based on
the open and obvious danger doctrine, ‘it is important for courts . . . to focus on the objective
nature of the condition of the premises at issue, not on the subjective degree of care used by the
plaintiff.’” Watts v Michigan Multi-King, ___ Mich App ___; ___ NW2d ___ (2010), slip op at
3, quoting Lugo, 464 Mich at 523-524. As we stated in Novotney v Burger King, 198 Mich App
470, 475; 499 NW2d 379 (1993), “it is not relevant to the disposition of this matter whether
plaintiff actually saw the [hazard].” Rather, the question is whether “the nature of the [hazard
was] discoverable on casual inspection.”2 Id. The mere presence of sand or dirt in an otherwise
snow and ice free area does not suggest the presence of underlying ice. Nor does a patch of dirt
or sand on a sidewalk, standing alone, constitute an objectively open and obvious danger.
Given our ruling, we need not address plaintiff’s alternative argument that special
circumstances existed concerning the dangerous condition.
Reversed and remanded. We do not retain jurisdiction.
/s/ Deborah A. Servitto
/s/ Elizabeth L. Gleicher
/s/ Douglas B. Shapiro
2
Indeed, to the extent a factfinder could conclude that the dirt or sand was placed on the ice
deliberately, a reasonable factfinder also could conclude that the defendant’s actions concealed,
albeit inadvertently, what would have otherwise been an open and obvious icy condition.
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