JANSON v. SAJEWSKI FUNERAL HOME INC (2009)

Plaintiff appeals as of right from an opinion and order granting summary disposition in favor of defendant. We reverse and remand.

This case arises out of plaintiff's slip and fall on black ice in defendant's parking lot. The injury took place in the early evening on March 2, 2006; there had been light precipitation earlier in the day and temperatures had been below freezing all day. The roads were clear, although a witness testified that they had been icy in the morning and salt trucks had been out. Defendant's parking lot had been largely cleared of snow, and it had been salted in the morning because it had been icy. By the afternoon, defendant's operator believed there was no ice remaining on the lot. A witness testified that he had difficulty walking through the lot due to patches of black ice “everywhere in the parking lot” shortly before plaintiff's fall. At approximately 6:15 p.m., plaintiff parked his car at the far end of the parking lot because the lot was mostly full. Plaintiff had been to defendant's funeral home numerous times previously.¹ Plaintiff walked approximately three-quarters of the way from his car to the entrance when he slipped and fell. Plaintiff testified that the area where he fell was a slippery patch of ice five to six feet wide and that he encountered no other ice on the lot. Defendant's operator did not “see any ice per se,” but found the area of the fall “a little bit on the slick side.” A witness to plaintiff's fall, Phillip Steven Merrow, believed plaintiff slipped on one of the patches of ice in the parking lot. Plaintiff fractured his right ankle.

At issue in this appeal is whether the trial court correctly granted summary disposition in defendant's favor, concluding that the icy conditions on defendant's parking lot were open and obvious and that black ice possessed no special aspects that would preclude application of the open and obvious doctrine. A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v. Rozwood, 461 Mich. 109, 118; 597 NW2d 817 (1999). We find that the trial court erred.

“To establish a prima facie case of negligence, a plaintiff must prove: (1) the defendant owed a duty to the plaintiff, (2) the defendant breached that duty, (3) the defendant's breach caused the plaintiff's injuries, and (4) the plaintiff suffered damages.” Kosmalski ex rel Kosmalski v. St John's Lutheran Church, 261 Mich.App 56, 60; 680 NW2d 50 (2004). Plaintiff was an invitee on defendant's premises, so defendant owed plaintiff a duty of care to warn of any known dangers, use reasonable care to prepare the premises and make them safe, and, if applicable, effectuate necessary repairs. Kennedy v. Great Atlantic & Pacific Tea Co, 274 Mich.App 710, 712; 737 NW2d 179 (2007); Stitt v. Holland Abundant Life Fellowship, 462 Mich. 591, 596-597; 614 NW2d 88 (2000). However, an invitor generally need not warn invitees of “open and obvious” dangers. If the danger and the risk therefrom would be readily apparent to an ordinary person upon casual inspection, issuing a warning is usually pointless. See Slaughter v. Blarney Castle Oil Co, 281 Mich.App 474, 478-479; 760 NW2d 287 (2008). But an exception to the “open and obvious” doctrine is where “special aspects” make a condition either effectively unavoidable or pose an unreasonably high risk of severe harm. Id.

We initially reject defendant's argument that black ice in Michigan is open and obvious as a matter of law. In fact, very nearly the opposite is true: the “overriding principle” behind “many definitions” of black ice is its invisibility, which is “inherently inconsistent with the open and obvious doctrine. Slaughter, supra at 482-483. Rather, several cases have held that ice may be open and obvious under some circumstances where other facts present should have alerted a Michigan resident to the likelihood of the hazard. Precedent from this Court and from our Supreme Court has explained that a long-term Michigan resident should be aware that ice might lurk under snow or after certain kinds of weather conditions,² that observing other people slipping on a surface should constitute a warning that the surface is slippery, and that ordinary ice may well be visible. See Ferveris v. Hartfield Lanes (On Remand), 271 Mich.App 61, 65-67; 318 NW2d 382 (2006). But in the absence of some other, visible indicia of an otherwise-invisible hazard, black ice per se simply cannot be “open and obvious.” See Slaughter, supra at 483.

In this case, weather records and testimony indicated that the temperature remained below freezing on the day of the incident, but the precipitation was light and had tapered off earlier that day. Plaintiff testified that the roads leading to defendant's funeral home were clear. Defendant's parking lot also appeared to be clear. Plaintiff testified that he had not encountered any other patches of ice in defendant's parking lot prior to his fall. Defendant's operator testified that he salted the parking lot and that the area where plaintiff fell seemed slippery even though he did not see any ice there. Merrow testified that there were patches of ice throughout the parking lot and although he encountered them, he did not see any of them. We find nothing in the record to show that plaintiff saw anyone else slip on the parking lot surface, nor do we find any indication that there was any snow around the area where plaintiff fell. Given these facts, application of the open and obvious doctrine would not be appropriate.

Given our conclusion that the trial court erred in applying the open and obvious doctrine, we need not consider whether any special aspects of the situation would otherwise have precluded the doctrine's application.

Reversed and remanded. We do not retain jurisdiction.

FOOTNOTES

1.  Plaintiff testified that the VFW organization customarily held memorial services for deceased veterans at defendant's funeral home. Plaintiff, a retired Command Sergeant Major of the United States Army, attended such memorial services regularly.

2.  We have not found any published authority suggesting whether or not a resident of any other state, or a Michigan resident who had not lived in Michigan for any great length of time, would also be expected to predict ice underneath snow or understand the vagaries of Michigan weather.

DAVIS, J.