                          STATE OF MICHIGAN

                           COURT OF APPEALS



JIM MCAULIFFE,                                                      UNPUBLISHED
                                                                    August 11, 2016
               Plaintiff-Appellee,

v                                                                   No. 323407
                                                                    Genesee Circuit Court
LAVILLA RESTAURANT, INC., doing business                            LC No. 13-099725-NO
as LA VILLA RESTAURANT & PIZZERIA,

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and SAWYER and STEPHENS, JJ.

PER CURIAM.

       In this classic slip and fall action, defendant, Lavilla Restaurant, Inc., doing business as
La Villa Restaurant & Pizzeria, appeals by leave granted1 the trial court’s August 8, 2014 order
denying its motion for summary disposition under MCR 2.116(C)(10). We reverse and order
summary disposition in favor of defendant.

                                       I. BACKGROUND

        This case arises out of a slip and fall accident that occurred on January 26, 2010, at
approximately noon, in a driveway on defendant’s property that led to the back door of
defendant’s restaurant. Contrary to the dissent’s assertion, we base our decision upon facts that
are largely undisputed. Plaintiff’s job was to deliver beer. At the time of the accident, he had
been delivering to defendant for approximately three years. When plaintiff started delivering to
defendant, the president of defendant corporation, Constantino Iacobini, told plaintiff that when
he was making deliveries he should park in the street and use the back entrance to the restaurant,
because if he went through the front door it would disturb defendant’s customers. A driveway
led from the street to the delivery door. Plaintiff could not park in the driveway because it was
too small for his truck, so he walked up the driveway to make his deliveries.

       On the day of the accident, it was cold with intermittent snowfalls. A dusting of snow
covered the ground. Defendant generally used a contractor to plow the driveway, and his

1
 McAullife v Lavilla Restaurant, Inc, unpublished order of the Court of Appeals, entered March
19, 2015 (Docket No. 323407).



                                                -1-
employee, Kenneth Wahra, typically salted and removed snow when necessary. However, it is
not clear from the record whether the driveway was plowed or salted the morning plaintiff fell.

        The morning of the accident, plaintiff parked in the street and delivered beer to defendant
via the back door, as instructed. He then returned to his truck with some empty cans and bottles
from defendant, and went back into the restaurant to give defendant a bill and collect payment.
While returning to his truck the second time, plaintiff slipped on some snow-covered ice on the
driveway. Regrettably, plaintiff was seriously injured as a result of the fall, and these injuries
limited his ability to work and caused significant pain and suffering.

         Plaintiff filed a three-count complaint on January 22, 2013, pleading general negligence,
nuisance and premises liability. In particular, plaintiff alleged that defendant (1) was negligent
for forcing plaintiff to use the unsafe rear entrance instead of the safe, front entrance, (2) failed to
maintain a safe premises, and (3) maintained a private and public nuisance. Defendant moved
for summary disposition under MCR 2.116(C)(10), arguing that as to plaintiff’s premises
liability claim, the slippery conditions were open and obvious. In supplemental pleadings
defendant argued that plaintiff’s general negligence and nuisance claims were, also, unsupported
in fact or law.

        The trial court denied defendant’s motion regarding the premises liability claim finding
that the condition of ice accumulation in a depression in the driveway covered by snow was not
open and obvious. The court deferred ruling on the viability of the general negligence and
nuisance claims stating, “that can be determined if and when this case goes to trial before it goes
to a jury. After I hear all of the evidence, I can then decide what theories go to the jury and what
theories don’t.”

                                   II. STANDARD OF REVIEW

        “This Court reviews de novo a trial court’s ruling on a defendant’s motion for summary
disposition.” Wyoming Chiropractic Health Clinic, PC v Auto-Owners Ins Co, 308 Mich App
389, 390; 864 NW2d 598 (2014) (citation omitted). If an issue upon which reasonable minds
might differ is evident, a genuine issue of material fact exists. Quinto v Cross & Peters Co, 451
Mich 358, 38; 547 NW2d 314 (1996).

       A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint.
       In evaluating a motion for summary disposition brought under this subsection, a
       trial court considers affidavits, pleadings, depositions, admissions, and other
       evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable
       to the party opposing the motion.” [Maiden v Rozwood, 461 Mich 109, 120; 597
       NW2d 817 (1999).]

“[P]roofs must be admissible in evidence.” Maiden, 461 Mich at 119. “The contents of the
complaint are accepted as true unless contradicted by documentation submitted by the movant.”
Id.

       This Court also reviews de novo a trial court’s determination of the existence of a duty.
Laier v Kitchen, 266 Mich App 482, 496; 702 NW2d 199 (2005). “Ordinarily, whether a duty



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exists is a question of law for the court. If there is no duty, summary disposition is proper.” Id.
(Internal citation omitted).

                       III. GENERAL NEGLIGENCE AND NUISANCE

        Defendant first argues that the trial court erred when it denied it summary relief as to
plaintiff’s general negligence and nuisance claims because plaintiff alleged facts that only sound
in premises liability, not ordinary negligence or nuisance. Plaintiff, to the contrary, argues that
the issue is not ripe for our review because of the trial court’s deferral. Alternatively, plaintiff
argues that summary judgment should not be granted on either claim because defendant was
actively negligent in forbidding him to use the main entrance and thereby forced him to use the
rear door and traverse the driveway without exercising care to maintain the driveway in a safe
condition. Additionally, plaintiff argues that the unsafe condition of the driveway constituted a
private and public nuisance. We will address this issue because it was fully briefed at the trial
level. Cf. People v Redden, 290 Mich App 65, 90, n 11; 799 NW2d 184 (2010).

       “To establish a prima facie case of negligence, a plaintiff must prove four elements: (1) a
duty owed by the defendant to the plaintiff, (2) breach of that duty, (3) causation, and (4)
damages.” Laier, 266 Mich App at 495; (quotation marks and citation omitted). “[T]he duty
owed in a general negligence claim is that ‘every person who engages in the performance of an
undertaking has an obligation to use due care or to act so as not to unreasonably endanger the
person or property of another.’ ” Jahnke v Allen, 308 Mich App 472, 475; 865 NW2d 49 (2014)
quoting Schenk v Mercury Marine Div, Lowe Indus, 155 Mich App 20, 25; 399 NW2d 428
(1986). A negligence claim may be brought for injuries arising from the conduct of a landowner
where the conduct rather than the condition of the land gives rise to that injury. Laier, 266 Mich
App at 493-494.

        In Laier, the plaintiff sued for wrongful death based on both an ordinary negligence
theory, and a premises liability theory. Id. at 495. The injury in Laier occurred when the
landowner asked the decedent to assist in the repair of the hydraulic hose of a tractor front–
loader. Id. at 485. The Court concluded that summary disposition was not appropriate on the
ordinary negligence claim because the defendant’s conduct, and his possible breach of his duty
to exercise ordinary care while engaging in that conduct, was the basis of the potential liability
for the ordinary negligence claim. Id. at 493-494, 497. The premises claim in Laier was based
upon a failure to warn the decedent about the clamp on the hydraulic system that was the subject
of the repair. Id. at 497. The Court concluded that summary disposition was not appropriate on
the premises liability claim either, because there was a genuine issue of material fact about
whether the danger posed by the clamped hose was open and obvious. Id. at 500.

       Here, plaintiff argues that the ordinary negligence cause of action springs from the “harm
caused by the actions of [defendant] in forbidding [plaintiff] to use the main entrance and forcing
him to use the designated door for delivery without exercising care to maintain the driveway and
make sure it was safe for his ingress/egress.” This circumstance is unlike that of Eaton v Winnie,
20 Mich 156 (1870), a venerable case from the nineteenth century concerning diseased sheep. In
Eaton, the plaintiff, a purchaser of land, brought his sheep onto his new property where they
contracted a disease. Id. The seller, when sued, argued that the purchaser knew that diseased
sheep had been on the land and negligently grazed his sheep on the same land. Id. at 164.


                                                -3-
However, evidence was introduced that the seller made a representation to the purchaser that a
night’s frost would render the land incapable of transmission of the disease. Id. at 163. The
seller argued unsuccessfully that the inured shepherd was negligent in believing his assertions
and should not recover. Id. at 165-166.

        There is no record evidence of any statements by the defendant landowner in this case
that the passageway of this plaintiff was safe from ice, snow or uneven pavement. We are not
imputing any negligence to plaintiff here. Instead, this is a circumstance where the directive
alone is not the reason for injury. Plaintiff’s argument on appeal is also that the fall was not
occasioned by the directive alone. He argues that the directive made with real or constructive
knowledge of the alleged dangerous condition constituted a breach of duty by defendant.
Directing a delivery person to use the back door does not, in itself, breach the duty of ordinary
care. Contrast this with Laier, where the defendant raised the bucket of a front-end loader four
to five feet off the ground, so a man could get under the bucket to repair the same hydraulic
system that was holding the bucket in place, and defendant failed to secure the bucket to ensure it
would not fall on the man. 266 Mich App at 485-486. There, even without considering the issue
of the clamped hydraulic hose, there was clearly a genuine issue of material fact about whether
the defendant breached the duty of ordinary care with his conduct. In the instant case, there is no
genuine issue of material fact regarding the ordinary negligence claim, because defendant did not
engage in conduct that violated the duty of ordinary care. Defendant’s motion for summary
disposition of plaintiff’s ordinary negligence claim should have been granted.

        Plaintiff also alleges private and public nuisance. Plaintiff does not however, either in the
lower court record or in his brief on appeal, explain how the facts of this case could give rise to
either a private or public nuisance cause of action. Regarding private nuisance, plaintiff must
have property rights that defendant interfered with. See Capitol Properties Group, LLC v 1247
Ctr Street, LLC, 283 Mich App 422, 431-432; 770 NW2d 105 (2009). 2 Defendant did not
interfere with any property right held by plaintiff. Plaintiff must make this showing to sustain a
case of private nuisance. Id. Regarding public nuisance, plaintiff has presented no evidence that
the alleged defective driveway unreasonably interfered3 with any “common right enjoyed by the

2
    “One is subject to liability for a private nuisance if”
          (a) the other has property rights and privileges in respect to the use or enjoyment
          interfered with, (b) the invasion results in significant harm, (c) the actor's conduct
          is the legal cause of the invasion, and (d) the invasion is either (i) intentional and
          unreasonable, or (ii) unintentional and otherwise actionable under the rules
          governing liability for negligent, reckless, or ultrahazardous conduct [Capitol
          Properties Group, LLC v 1247 Ctr St, LLC, 283 Mich App 422, 428-29; 770
          NW2d 105 (2009) quoting Cloverleaf Car Co v Phillips Petroleum Co, 213 Mich
          App 186, 193; 540 NW2d 297 (1995).]
3
 “The term ‘unreasonable interference’ includes conduct that (1) significantly interferes with the
public's health, safety, peace, comfort, or convenience, (2) is proscribed by law, or (3) is known
or should have been known by the actor to be of a continuing nature that produces a permanent
or long-lasting, significant effect on these rights.” Cloverleaf Car Co, 213 Mich App at 190.



                                                    -4-
general public.” Cloverleaf Car Co v Phillips Petroleum Co, 213 Mich App 186, 190; 540
NW2d 297 (1995). There is thus no genuine issue of material fact in regards to the nuisance
claims, and defendant’s motion for summary disposition regarding those claims should have
been granted.

                                   IV. PREMISES LIABILITY

         Defendant next argues that there is no genuine issue of material fact that the dangers
posed by the slippery driveway were open and obvious, and further, that no special aspects
existed to avoid application of the open and obvious doctrine. Alternatively, defendant argues
that it cannot be held liable because it did not have actual or constructive notice of the condition.
We agree in part and disagree in part.

       “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.” Sanders v
Perfecting Church, 303 Mich App 1, 4; 840 NW2d 401 (2013) (quotation omitted). A claim will
sound in premises liability when liability “emanates merely from the defendant’s duty as an
owner, possessor, or occupier of land,” and the plaintiff alleges “a failure to warn of a dangerous
condition or [] a breach of duty in allowing the dangerous condition to exist.” Laier, 266 Mich
App at 489, 493. “[A]lleging that defendant created the condition ‘does not transform the claim
into one for ordinary negligence.’ ” Jahnke, 308 Mich App at 475 quoting Buhalis v Trinity
Continuing Care Servs, 296 Mich App 685, 692; 822 NW2d 254 (2012).

        “The starting point for any discussion of the rules governing premises liability law is
establishing what duty a premises possessor owes to those who come onto his land.” Hoffner v
Lanctoe, 492 Mich 450, 460; 821 NW2d 88 (2012). Plaintiff was a business invitee, because he
was present at defendant’s restaurant in a professional capacity. See Stitt v Holland Abundant
Life Fellowship, 462 Mich 591, 597; 614 NW2d 88 (2000). A landowner is liable to an invitee
for injuries caused by a condition of the land when the owner:

       (a) knows, or by the exercise of reasonable care would discover, the condition,
       and should realize that it involves an unreasonable risk of harm to such invitees,
       (b) should expect that they will not discover or realize the danger, or will fail to
       protect themselves against it, and (c) fails to exercise reasonable care to protect
       them against the danger. [Prebenda v Tartaglia, 245 Mich App 168, 169; 627
       NW2d 610 (2001).]

        This duty does not encompass removal of dangers that are open and obvious. Lugo v
Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). Open and obvious dangers are
those that would either be already known to an invitee or those that are so obvious that they are
reasonably expected to be discovered by an invitee. Id.; See Slaughter v Blarney Castle Oil Co,
281 Mich App 474, 478; 760 NW2d 287 (2008), lv den 483 Mich 984 (2009) quoting Novotney v
Burger King Corp (On Remand), 198 Mich App 470, 474; 499 NW2d 379 (1993) (“A premises
possessor is generally not required to protect an invitee from open and obvious dangers. The
logic behind the open and obvious danger doctrine is that ‘an obvious danger is no danger to a




                                                -5-
reasonably careful person.’ ”). The snow and ice on the driveway on the day of plaintiff’s
accident was open and obvious.4

        Plaintiff further argues however, that the danger was not merely the slippery condition of
the driveway, but the slipperiness combined with the uneven, poorly maintained nature of the
driveway. While we agree with defendant that the ice and snow are open and obvious as a
matter of law, we disagree as to whether the existence of uneven surfaces under the ice and snow
is discoverable even upon casual inspection by an ordinary person. Dangers are open and
obvious when an “invitee might reasonably be expected to discover them.” Lugo, 464 Mich at
516 (quotation omitted). We agree with the dissent that in certain circumstances a landowner
may have a duty to protect and warn an invitee of dangers that are posed by icy or snowy
conditions. We, also agree, that the combination of ice, snow and other features of the land may
render dangers neither open nor obvious. Common sense aside, however, the record must
contain competent evidence that this plaintiff’s fall was occasioned by the combination of both
ice, snow and unevenness, and that the landowner had notice. According to plaintiff’s
deposition, ice covered by snow caused his fall. Additionally, plaintiff presents no evidence as
to the duration of the uneven condition. At best, plaintiff shows that the driveway and concrete
were in substantial part the original paving.

       Plaintiff points to the deposition of Kenneth Wahra, defendant’s employee, who plaintiff
argues indicated that “ice on an uneven driveway make [sic] an uneven driveway additionally
dangerous.” Wahra testified:

             Q. [] And would you agree with me that ice on an uneven driveway
       makes an uneven driveway even more dangerous?

               A. Could be.

Wahra gave a noncommittal response. Even if he gave an affirmative response, and assuming
his testimony on this point would be admissible evidence properly considered when deciding a
motion for summary disposition, that answer would not indicate that Wahra thought the
driveway was more dangerous because it was uneven. Instead, it would indicate that uneven icy
driveways are more dangerous than uneven driveways that are not icy. It is undoubtedly true
that all driveways, level or not, are more dangerous when icy. Thus, Wahra’s answer does not
support the proposition that the uneven nature of the driveway contributed to plaintiff’s injury.

       Plaintiff fails to present sufficient evidence to establish that the uneven pavement was a
cause of his fall and to create a genuine issue of material fact. See Laier, 266 Mich App at 495.

       Even if a danger is open and obvious, if the condition is unreasonably dangerous or the
danger is unavoidable, that condition has special aspects that impose on a premises possessor “a
duty to undertake reasonable precautions to protect invitees from that risk.” Lugo, 464 Mich at
517; Hoffner, 492 Mich at 461 (“[L]iability may arise when special aspects of a condition make

4
 “Generally, the hazard presented by snow and ice is open and obvious, and the landowner has
no duty to warn of or remove the hazard.” Buhalis, 296 Mich.App at 694 (citation omitted).



                                               -6-
even an open and obvious risk unreasonable.”). In deciding whether a condition has special
aspects in the context of summary disposition:

       the critical question is whether there is evidence that creates a genuine issue of
       material fact regarding whether there are truly ‘special aspects’ of the open and
       obvious condition that differentiate the risk from typical open and obvious risks
       so as to create an unreasonable risk of harm, i.e., whether the ‘special aspect’ of
       the condition should prevail in imposing liability upon the defendant or the
       openness and obviousness of the condition should prevail in barring liability.
       [Lugo, 464 Mich at 517-518.]

        Our Supreme Court has acknowledged “two instances in which the special aspects of an
open and obvious hazard could give rise to liability: when the danger is unreasonably dangerous
or when the danger is effectively unavoidable.” Hoffner, 492 Mich at 463. “[T]he standard for
‘effective unavoidability’ is that a person, for all practical purposes, must be required or
compelled to confront a dangerous hazard. As a parallel conclusion, situations in which a person
has a choice whether to confront a hazard cannot truly be unavoidable, or even effectively so.”
Id. at 469. See e.g. Attala v Orcutt, 306 Mich App 502, 505; 857 NW2d 275 (2014) (“plaintiff
had to encounter the icy conditions and that the entire parking lot was covered with thick ice, the
hazard was effectively unavoidable and, therefore, the open and obvious danger doctrine did not
vitiate defendants’ duty.”); See also Lugo, 464 Mich at 518 (“for example, a commercial
building with only one exit for the general public where the floor is covered with standing
water.”).

        Plaintiff argues that the danger he faced was effectively unavoidable because “he was
given no other option by the landowner but to use the designated delivery door at issue.” In
further support, plaintiff submits, as supplemental authority under MCR 7.212(F)5, this Court’s
recent decision in Lymon v Freedland, ___ Mich App ___; ___ NW2d ___ (2016). Lymon
involved an in-home health care aid who was injured while reporting to work after she slipped
and fell on the defendant’s steep driveway that was covered with ice and snow. Id. at ___; slip
op at 2. Contrary to the dissent’s assertion that we viewed this case with “ivory tower disdain,”
we reviewed the circumstances carefully to determine if this plaintiff faced a circumstance that
was, at best a Hobson’s choice. We agree with Lymon, that circumstances may render a danger
effectively unavoidable. The plaintiff in Lymon, who had complained about the slippery
pathway repeatedly to the homeowner, was a healthcare worker. Unless she attempted to

5
 Supplemental Authority. Without leave of court, a party may file an original and four copies of
a one-page communication, titled “supplemental authority,” to call the court's attention to new
authority released after the party filed its brief. Such a communication,
       (1) may not raise new issues;

       (2) may only discuss how the new authority applies to the case, and may not
       repeat arguments or authorities contained in the party's brief;

       (3) may not cite unpublished opinions. [MCR 7.212(F).].




                                                -7-
traverse the ice-covered pathway, her patient would have had no caregiver. The Lymon Court
held

       a reasonable juror could conclude that plaintiff did not have a choice as to
       whether to confront the icy conditions. As a home health care aide, plaintiff did
       not have the option of abandoning her patient, an elderly woman who suffered
       from dementia and Parkinson's disease. Plaintiff did not confront the hazard
       merely because she desired to participate in a recreational activity, but rather, a
       rational juror could conclude that she was “compelled by extenuating
       circumstances” and had “no choice” but to traverse the risk. [Id. at ___; slip op.
       at 9; (citation omitted).].

        Plaintiff argues that like the plaintiff in Lymon, he was at defendant’s restaurant to
perform work and did not have the option of failing to appear for work, nor did he have the
option to use any other path, therefore, he was “compelled by extenuating circumstances” to
traverse the dangerous driveway. We agree that plaintiff was instructed by the property owner to
deliver his goods via the rear pathway. In the face of Hoffner, the Lymon Court relied on the fact
that the healthcare worker’s critical obligations to a vulnerable patient could lead a rational trier
of fact to find that she was compelled to confront a known danger. The consequences for such a
choice extend far beyond workplace discipline. Here, plaintiff suffered injury on his way to
deliver a bill after he had deposited his goods. We agree that he might have been subject to
negative employment consequences had he chose not to make the delivery. The record is devoid
of any proofs in this regard, however. Given proofs that a request to deliver the bill through the
front door or to deliver goods on another day would have resulted in significant negative
consequences, this case might also present a Lymon issue for the trier of fact. The instant case
however, does not present the extenuating circumstances of Lymon. Having reviewed plaintiff’s
supplemental authority, we conclude that there is no genuine issue of material fact about whether
the danger was avoidable.

       Finally, defendant argues that it did not know, nor did it have reason to know, that there
was a patch of ice located in the driveway. Neither did defendant create that condition.
Therefore, defendant cannot be held liable for plaintiff’s injuries. This Court need not address
this argument given our conclusion that the dangers plaintiff encountered were open and
obvious, which justifies reversal of the trial court’s order denying summary disposition.

       Reversed.

                                                              /s/ David H. Sawyer
                                                              /s/ Cynthia Diane Stephens




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