JACQUELYN ROBBINS V VILLAGE CREST CONDOMINIUM ASSOCIATION (Per Curiam Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
JACQUELYN ROBBINS,
UNPUBLISHED
July 30, 2013
Plaintiff-Appellant,
v
No. 300842
Oakland Circuit Court
LC No. 2009-106178-NO
VILLAGE CREST CONDOMINIUM
ASSOCIATION,
Defendant-Appellee.
ON REMAND
Before: SAAD, P.J., and STEPHENS and RONAYNE KRAUSE, JJ.
PER CURIAM.
This case returns to this Court on remand from our Supreme Court for “reconsideration in
light of Hoffner v Lanctoe, 492 Mich 450; 821 NW2d 88 (2012).” Robbins v Village Crest
Condo Ass’n, 493 Mich 945; 827 NW2d 722 (2013). Plaintiff appeals by right an order granting
defendant’s motion for summary disposition in this premises liability action. For the reasons set
forth below, we reverse and remand to the circuit court for further proceedings consistent with
this opinion.
In this case, the circuit court granted summary disposition in favor of defendant because
it found that the condition was open and obvious. Plaintiff alleged that, on November 18, 2008,
she slipped and fell on black ice on defendant’s premises: the parking lot of her condominium.
On appeal, plaintiff argues that the circuit court erred in granting summary disposition in favor of
defendant because there were no indicia of a potential icy condition existing at the time plaintiff
fell. We agree.
“This Court reviews de novo a trial court’s grant or denial of a motion for summary
disposition.” Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). A
motion brought under MCR 2.116(C)(10) is reviewed “by considering the pleadings, admissions,
and other evidence submitted by the parties in the light most favorable to the nonmoving party.
Summary disposition is appropriate if there is no genuine issue regarding any material fact and
the moving party is entitled to judgment as a matter of law.” Id.
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Defendant moved for summary disposition pursuant to MCR 2.116(C)(10), arguing, in
part, that the alleged black ice was open and obvious because there were indicia of a potentially
hazardous condition. In a premises liability action, a plaintiff must prove the elements of
negligence: (1) the defendant owed the plaintiff a duty; (2) the defendant breached that duty;
(3) the breach was the proximate cause of the plaintiff’s injury; and (4) the plaintiff suffered
damages. Benton v Dart Properties, Inc, 270 Mich App 437, 440-441; 715 NW2d 335 (2006)
(citations and quotation marks omitted). As our Supreme Court observed in Hoffner, a premises
possessor’s duty of care to others upon the premises depends on the status of that other person,
and the greatest duty attends to business invitees. Hoffner, 492 Mich at 460 n 8. Specifically,
[i]n Michigan, a premises possessor owes a duty to use reasonable care to protect
invitees from an unreasonable risk of harm caused by dangerous conditions on the
premises, including snow and ice conditions. However, liability does not arise for
open and obvious dangers unless special aspects of a condition make even an
open and obvious risk unreasonably dangerous. This may include situations in
which it is “effectively unavoidable” for an invitee to avoid the hazard posed by
such an inherently dangerous condition. [Id. at 455 (emphases in the original).]
In determining whether a danger is open and obvious, the inquiry is whether an average
person 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).
Several recent precedents support the proposition that weather conditions are relevant to
the open-and-obvious determination, and that landowners have a duty to diminish the risks to
invitees associated with ice and snow. For example, in Slaughter v Blarney Castle Oil Co., 281
Mich App 474; 760 NW2d 287 (2008), this Court affirmed the trial court’s denial of summary
disposition, concluding that a question of fact remained regarding whether an average person of
ordinary intelligence would have been able to discover the danger and risk upon casual
inspection. Slaughter, 281 Mich App at 484. In Slaughter, the plaintiff fell while alighting from
her truck at a gas station sometime between midnight and 1:00 a.m. Id. at 475. There was no
snow on the ground, it had not snowed in a week, the plaintiff had not observed anyone else slip
prior to her fall, and the plaintiff did not see the ice before she fell, but it had started to rain. Id.
at 483. The Court stated:
Contrary to defendant’s assertion that the mere fact of it being wintertime
in northern Michigan should be enough to render any weather-related situation
open and obvious, reasonable Michigan winter residents know that each day can
bring dramatically different weather conditions, ranging from blizzard conditions,
to wet slush, to a dry, clear, and sunny day. As such, the circumstances and
specific weather conditions present at the time of plaintiff’s fall are relevant. We
are not persuaded that the recent onset of rain wholly revealed the condition and
its danger as a matter of law such that a warning would have served no purpose.
[Id. at 483-484 (citation omitted).]
In Janson v Sajewski Funeral Home, Inc, 486 Mich 934, 935; 782 NW2d 201 (2010), the
Michigan Supreme Court reaffirmed Slaughter as governing precedent but reversed the Court of
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Appeals decision and reinstated summary disposition finding that the wintry conditions would
have alerted an average person of ordinary intelligence to discover the danger upon casual
inspection. In Janson, “the slip and fall occurred in winter, with temperatures at all times below
freezing, snow present around the defendant’s premises, mist and light freezing rain falling
earlier in the day, and light snow falling during the period prior to the plaintiff’s fall in the
evening.” Id. The Janson Court reasoned that “these wintry conditions by their nature would
have altered an average user of ordinary intelligence to discover the danger upon casual
inspection.” Id.
Finally, in Hoffner, the Supreme Court held:
With specific regard to ice and snow cases, this Court has rejected the
prominently cited notion that ice and snow hazards are obvious to all and
therefore may not give rise to liability under any circumstances. Rather, a
premises owner has a duty to exercise reasonable care to diminish the hazards of
ice and show accumulation, requiring that reasonable measures be taken within
reasonable time after an accumulation of ice and snow to diminish the hazard of
injury to the invitee. However, it is also well established that wintry conditions,
like any other condition on the premises, may be deemed open and obvious.
Michigan courts thus ask whether the individual circumstances, including the
surrounding conditions, render a snow or ice condition open and obvious such
that a reasonably prudent person would foresee the danger. [Hoffner, 492 Mich at
463-464 (citations and quotation marks omitted).]
Defendant argues that there were indicia of a potentially hazardous condition. Plaintiff
testified that it was “cold” and based on the meteorological records the temperature was below
freezing at the time plaintiff slipped and fell. According to plaintiff, she did not recall seeing any
snow or ice on defendant’s parking lot which was the parking lot of her condominium. Further,
in the days leading up to the incident, there was mild precipitation. In particular, two days before
plaintiff’s fall, less than an inch of snow fell. However, there was no precipitation the day before
the incident and there was also no precipitation on the day of the incident or when plaintiff
traversed on defendant’s premises. In fact, in the days leading to plaintiff’s fall, the temperatures
varied and fluctuated above freezing. In particular, following the snow fall just two days before
the incident, there were periods of temperatures above freezing, and the meteorological records
indicate that, an hour before the incident, the temperature was below freezing.
We conclude that, viewing the evidence in the light most favorable to plaintiff, there is a
material question of fact regarding whether there were indicia of a potentially hazardous
condition. Although, like in Janson, plaintiff’s fall occurred on a “cold” day and the temperature
was below freezing, the temperature had fluctuated above freezing in the days before plaintiff’s
fall. While the meteorological records indicate there were trace amounts of snow on the ground
the day plaintiff fell and that it had snowed two days before, there was no evidence that there
was snow present on defendant’s premises or where plaintiff fell. Further, unlike in Janson,
there was no precipitation on the morning of or the day before the incident. That is, there was no
mist, light freezing rain or snow falling the day before or the day plaintiff fell. Further, there is
no evidence that plaintiff had observed anyone else slip prior to her fall. Like in Slaughter, the
facts of the case at bar establish that merely because there were wintry weather conditions days
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prior to plaintiff’s fall, “each day can bring dramatically different weather conditions” and these
facts are not enough to render any weather-related situation open and obvious. Slaughter, 281
Mich App at 483. Thus, there exists a question of material fact regarding whether the weather
conditions in this case would have alerted an average user of ordinary intelligence to discover the
danger. See Id. at 484. Because there is a question of fact regarding whether there were indicia
of a potentially hazardous condition such that the condition was open and obvious, we need not
decide whether there were special circumstances that made the condition unreasonably
dangerous. See id. at 484.1
With regard to the Supreme Court’s remand order, again, we conclude that the trial court
erred in failing to recognize the existence of a question of fact regarding whether the condition
that allegedly caused plaintiff to fall was open and obvious. That was the only issue raised in the
claim of appeal, and also in plaintiff’s application for leave to appeal in the Supreme Court.
Hoffner adds nothing to existing principles for making that determination, but instead concerned
itself with whether the hazard there at issue—plainly visible ice—was an unavoidable one and so
actionable because of that special aspect. Hoffner, 492 Mich at 465. However, the question of
special aspects was not raised in the instant appeal, or, apparently, even decided below. Hoffner
therefore does not change our conclusion that the trial court erred by failing to recognize the
existence of a question of fact regarding whether the condition that allegedly caused plaintiff to
fall was open and obvious.
In support of its argument that the circuit court correctly granted summary disposition in
its favor, defendant argues that plaintiff’s theory, i.e., that black ice caused her to fall, is not
supported by the record. Specifically, defendant argues that plaintiff offered nothing more than
mere speculation and conjecture to establish that she slipped and fell on black ice. Defendant
argued below that plaintiff’s causation theory was mere conjecture, but the circuit court failed to
address or decide the issue below. “Although filing a cross-appeal is not necessary to argue an
alternative basis for affirming the [circuit] court’s decision, the failure to do so generally
precludes an appellee from raising an issue not appealed by the appellant.” Turcheck v
Amerifund Financial, Inc, 272 Mich App 341, 351; 725 NW2d 684 (2006), citing Kosmyna v.
Botsford Community Hosp, 238 Mich App 694, 696; 607 NW2d 134 (1999). While we could
refuse to consider the issue because defendant has not filed a cross-appeal, we will address the
issue because it involves a question of law for which all necessary facts have been presented.
1
We note, however, that if we were to find that the condition was open and obvious, we would
conclude that there were not special aspects that made it unreasonably dangerous. See Lugo v
Ameritech Corp, Inc, 464 Mich 512, 517; 629 NW2d 384(2001). There is no evidence that the
black ice was unavoidable and it did not impose an unreasonably high risk of severe harm, such
as a 30-foot deep pit in a parking lot. See id. at 518. With regard to Hoffner specifically, given
that plaintiff fell while walking to her car with plans to drive from her home location to another,
Hoffner’s admonishments that the special aspects doctrine does not permit “recovery for a
typical hazard confronted under ordinary circumstances,” Hoffner, 492 Mich at 469, does not
throw into doubt, but rather confirms, this conclusion.
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See Miller v Department of Mental Health, 161 Mich App 778, 783; 411 NW2d 856 (1987)
rev’d on other grounds 432 Mich 426 (1989).
It is well-established that an action for negligence requires a plaintiff to prove four
elements: duty, breach, causation, and damages. Case v Consumers Power Co, 463 Mich 1 6;
615 NW2d 17 (2000). The third element requires a plaintiff to prove both that the defendant’s
negligence was the cause in fact and proximate cause of the injuries. Skinner v Square D Co,
445 Mich 153, 162-163; 516 NW2d 475 (1994). Cause in fact requires a plaintiff to show that,
but for the defendant’s negligence, the injuries would not have occurred. Id. at 164-165. Cause
in fact may be established by circumstantial evidence, but such proof must be subject to
reasonable inference, not mere speculation. Wiley v Henry Ford Cottage Hosp, 257 Mich App
488, 496; 668 NW2d 402 (2003). That is, “a causation theory must have some basis in
established fact” and “a basis in only slight evidence is not enough.” Skinner, 445 Mich at 162163.
Defendant relies on Stefan v White, 76 Mich App 654; 275 NW2d 206 (1977), to support
its argument that summary disposition is appropriate because plaintiff is merely speculating as to
the cause of her fall. Stefan involved a plaintiff who tripped and fell at the defendant’s home.
Id. at 656. The plaintiff was deposed and testified that she did not know how or why she fell. Id.
The plaintiff stated, “I don’t recollect anything . . . I don’t know what happened. I just went
down.” Id. at 657. The Stefan Court found that this testimony contradicted the complaint and
negated a causal relationship between the plaintiff’s fall and the defendant’s premises. Id. at
660. The plaintiff’s deposition testimony in Stefan demonstrated that she had no knowledge of
the actual cause of her. Id. Accordingly, the Stefan Court concluded that the mere occurrence of
the plaintiff’s fall is not enough to raise an inference of negligence on the part of the defendant.
Id. at 661.
Stefan is distinguishable from the case at bar because plaintiff offered a reasonable theory
of causation with respect to her fall. Plaintiff testified that “[a]ll I can tell you is I hit the remote
[to open the car garage], and next thing -- and I’m walking to the car, and I’m on the ground.
And that’s just how it happened.” After plaintiff’s fall, she did not touch the ground or look to
see if there was ice where she fell. However, when asked, “[w]hy do you think it was black
ice?” she simply stated, “[b]ecause I slipped.” We note that if this were the extent of evidence
presented, plaintiff’s theory, that black ice caused her to slip and fall, could be found to have
been premised on mere speculation and conjure. However, there are more facts in the record that
could support a reasonable inference of plaintiff’s causation theory.
Plaintiff testified that she slipped and fell backwards onto her buttocks in defendant’s
parking lot. After she fell, EMS personnel arrived at the scene. They placed her on a spine
board, stabilized her foot, and then attempted to lift the board from the ground; however the
EMS technician slipped and lost his footing. According to plaintiff, the EMS technician then
easily slid the board along the parking lot without the aid of wheels or rollers. A fireman, who
also arrived at the scene, testified that he did not recollect seeing any ice or the EMS technician
slipping or the EMS technician sliding the board along the parking lot. The fireman
acknowledged that he did not leave his truck and that he had little memory of the incident
independent of his report. Despite his testimony, the EMS report indicated that the primary
complaint was “slip and fall on ice.” There was also evidence that the a few days before her fall
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there was mild precipitation and that the temperatures on the days leading to the incident
fluctuated between below and above freezing. On the morning plaintiff fall, the temperature was
below freezing. The record indicates that plaintiff pinpointed the area in which she fell; she
described the mechanics of her fall, i.e., slipping and falling backwards onto her buttocks, and
she observed the EMS technician slipping in the same area. While there is no direct evidence of
the existence of ice, the circumstantial evidence gives rise to a reasonable inference that plaintiff
fell on black ice. Accordingly, plaintiff’s theory of causation is not premised on mere
speculation and conjecture. We conclude that there is an issue of material fact regarding the
cause of plaintiff’s fall, and therefore, summary disposition was not proper.
Finally, defendant argues that the circuit court correctly granted summary disposition in
its favor because it had no notice the condition. We decline to address this issue because the
record in not sufficiently developed to allow us to make a ruling on this issue. In sum, we
conclude that there is a question of fact regarding whether the condition on the premises was
open and obvious. We also conclude that plaintiff has offered sufficient evidence to create a
material question of fact on the element of causation. Therefore, summary disposition was
inappropriate and the circuit court erred in granting summary disposition in favor in defendant.
Reversed and remanded for further proceedings consistent with this opinion. Plaintiff, as
the prevailing party, may tax costs pursuant to MCR 7.219(A).
/s/ Cynthia Diane Stephens
/s/ Amy Ronayne Krause
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