                          STATE OF MICHIGAN

                           COURT OF APPEALS



BRANDIE LEMMERHART,                                                 UNPUBLISHED
                                                                    September 7, 2017
               Plaintiff-Appellant,

v                                                                   No. 334045
                                                                    St. Joseph Circuit Court
TIMOTHY MARCINIAK, JUDY L.                                          LC No. 15-000751-NI
MARCINIAK, and MAPLE PARK
RECREATION CENTER, INC,

               Defendants-Appellees.


Before: BOONSTRA, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ.

RONAYNE KRAUSE, J. (concurring).

        I respectfully concur. I write separately primarily because I would not dismiss plaintiff’s
argument pertaining to the illumination level in the skating rink’s parking lot merely because
counsel expressed at oral argument a lack of confidence in that argument. Although I conclude
that plaintiff did not sufficiently establish a cause of action on that basis, I also conclude that
such an argument is not intrinsically unsupportable.

        I note as well that notwithstanding our Supreme Court’s claim that a generation ago it
had “‘reject[ed] the prominently cited notion that ice and snow hazards are obvious to all and
therefore may not give rise to liability’ under any circumstances.” Hoffner v Lanctoe, 492 Mich
450, 463-464; 821 NW2d 88 (2012), quoting Quinlivan v Great Atlantic & Pacific Tea Co, Inc,
395 Mich 244, 261; 235 NW2d 732 (1975) (alteration by the Hoffner Court), I do not find the
trial court’s statement that our Supreme Court’s actual decisions reflect precisely the opposite to
be unreasonable. This Court held that black ice, by itself, is not necessarily open and obvious
per se in the absence of any other indicia that it might exist due to its intrinsic nature as being
invisible. Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 483-484; 760 NW2d 287
(2008). Nonetheless, our Supreme Court has clearly indicated that even black ice is necessarily
open and obvious in the presence of any hint that it might possibly exist. Ragnoli v North
Oakland-North Macomb Imaging, Inc, 500 Mich 967, 967; 892 NW2d 377 (2017).

         Nevertheless, it would appear that a total lack of illumination, under which it would be
literally impossible for even a person who knows ice is likely to be present to detect it without
slipping on it, might perhaps still give rise to premises liability. See Knight v Gulf & Western
Properties, Inc, 196 Mich App 119, 127-128; 492 NW2d 761 (1992). However, ordinary “low

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lighting” caused by a mere lack of illumination is still insufficiently dark. Ragnoli, 500 Mich at
967. Plaintiff’s husband made a reference in his deposition and an affidavit to the parking lot
being dark and unilluminated, thereby apparently stumbling over perhaps the only possible way
ice could still give rise to premises liability in Michigan. Although plaintiff’s counsel apparently
believed otherwise, a party “is entitled to the benefit of testimony in support of a verdict in his
favor despite his expression of an opinion inconsistent therewith.” Ortega v Lenderink, 382
Mich 218, 223; 169 NW2d 470 (1969). Furthermore, the fact that such a theory was not
specifically alleged in the complaint would not necessarily preclude amendment to conform to
the proofs, had there been any. See MCR 2.118. However, I concur with the majority because
there simply was no other evidence presented establishing how dark the parking lot was at the
time of the incident.

       In all other respects, I fully agree with the majority.

                                                                 /s/ Amy Ronayne Krause




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