                         STATE OF MICHIGAN

                          COURT OF APPEALS



KEN YOUNG,                                                        UNPUBLISHED
                                                                  February 6, 2018
              Plaintiff-Appellant,

v                                                                 No. 333794
                                                                  Oakland Circuit Court
WALTON OIL, INC.,                                                 LC No. 2015-145680-NO

              Defendant-Appellee.


Before: MURRAY, P.J., and FORT HOOD and GLEICHER, JJ.

PER CURIAM.

        Ken Young slipped and fell on ice while walking toward a gas pump at Walton Oil. The
circuit court summarily dismissed Young’s complaint against the gas station owner, ruling that
there was no evidence Walton Oil had notice of the icy condition and that the condition was open
and obvious. Young created fact questions regarding both issues. Accordingly, we vacate the
circuit court’s order of summary disposition and remand for further proceedings.

                                      I. BACKGROUND

        On a cold winter evening, Young stopped at Walton Oil to fill his tank. Young testified
that as he exited his car and began to walk in the direction of a gas pump, he slipped and fell.
The area was well-lit and entirely cleared of snow. He did not see any ice.

        Yaser Al Asadi managed the gas station that evening. He testified that he inspected the
area near the pumps when he arrived for work at 3:00 p.m. and saw no ice. In fact, Al Asadi
claimed that he could not see any ice even after Young fell. He declared, “There’s no ice
outside.”

       Another manager, Youssef Krayem, later watched a store video that included Young’s
    1
fall. According to Krayem, the video showed that the parking lot “was pretty clean. There’s no
even [sic] ice, nothing.” He speculated that possibly water had collected and frozen in a “crack


1
 Apparently Walton Oil did not retain a copy of the video, and no one other than Krayem has
watched it.


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here and there.” He admitted that he was able to see a patch of ice “[l]ike a foot wide” near the
pump when he personally inspected the area the next morning.2

       Ultimately, the circuit court dismissed Young’s premises liability action. The court
summarized that neither Young nor Al Asadi, who had inspected the property that day, saw the
ice upon which Young fell, even after the incident. There was no evidence regarding the length
of time the ice had been on the ground. Accordingly, the court determined, there was no
evidence that Walton Oil had notice of the dangerous condition. The court also determined that
the condition was open and obvious such that Walton Oil had no duty to warn. Specifically, the
court noted that the grass surrounding the gas station was snow covered and it was very cold that
day. Young “could have, and should have, expected ice on the ground” under those conditions.

                                          II. ANALYSIS

        Young now appeals the circuit court’s summary disposition order. “We review a trial
court’s decision on a motion for summary disposition de novo.” Zaher v Miotke, 300 Mich App
132, 139; 832 NW2d 266 (2013). Summary disposition under MCR 2.116(C)(10) is proper
when “there is no genuine issue as to any material fact, and the moving party is entitled to
judgment . . . as a matter of law.” Jimkoski v Shupe, 282 Mich App 1, 4; 763 NW2d 1 (2008).
“In reviewing a motion under MCR 2.116(C)(10), [we] consider[] the pleadings, admissions,
affidavits, and other relevant documentary evidence of record in the light most favorable to the
nonmoving party to determine whether any genuine issue of material fact exists to warrant a
trial.” Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). See also MCR
2.116(G)(5).

        “To establish a prima facie case of negligence, a plaintiff must prove that ‘(1) the
defendant owed the plaintiff a legal duty, (2) the defendant breached the legal duty, (3) the
plaintiff suffered damages, and (4) the defendant’s breach was a proximate cause of the
plaintiff’s damages.’ ” Hill v Sears, Roebuck & Co, 492 Mich 651, 660; 822 NW2d 190 (2012),
quoting Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162; 809 NW2d 553
(2011). “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). With regard to invitees, a premises owner
has a “legal duty . . . to exercise reasonable care to protect invitees from an unreasonable risk of
harm caused by a dangerous condition of the land that the landowner knows or should know the
invitees will not discover, realize, or protect themselves against.” Bertrand v Alan Ford, Inc,
449 Mich 606, 609; 537 NW2d 185 (1995) (quotation marks and citation omitted).




2
 When describing that ice patch, Krayem contradicted his earlier testimony, asserting that he
was able to see the ice on the video.


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        However, “a premises possessor is not required to protect an invitee from open and
obvious dangers.” Lugo v Ameritech Corp, Inc, 464 Mich 512, 517; 629 NW2d 384 (2001). An
objective test applies for determining whether a dangerous condition is open and obvious: would
an average person of ordinary intelligence discover the danger and the risk it presents on casual
inspection? Novotney v Burger King Corp (On Remand), 198 Mich App 470, 474; 499 NW2d
379 (1993). Accordingly, for Young to prove that the circuit court erred in granting Walton
Oil’s motion for summary disposition, he must “come forth with sufficient evidence to create a
genuine issue of material fact that an ordinary user upon casual inspection could not have
discovered the existence” of the danger. Id. at 475. Given that neither Young nor Al Asadi
could see the ice, we must assume that it was not visible on casual inspection.

        Logically, ice that is invisible or nearly so is not “open and obvious” as a matter of law;
one would not expect an average person to be able to discern a nearly invisible thing on casual
inspection. We acknowledge that in a brief order, the Supreme Court suggested that “wintery
conditions by their nature” should alert an average person “to discover the danger upon casual
inspection.” Janson v Sajewski Funeral Home, Inc, 486 Mich 934, 935; 782 NW2d 201 (2010).
But in a later opinion, 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),
the Court emphasized that it has consistently “ ‘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.”

       In other words, the presence of snow and cold temperatures does not create an irrefutable
presumption of accompanying ice. While “wintry conditions, like any other condition on the
premises, may be deemed open and obvious,” the central question remains “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,
486 Mich at 464. Therefore, the Supreme Court elucidated, “a premises owner has a duty to
exercise reasonable care to diminish the hazards of ice and snow accumulation” by taking
“reasonable measures” within a “reasonable time after an accumulation of ice and snow to
diminish the hazard of injury to the invitee.” Id. (quotation marks and citation omitted).

       We interpret this language as counseling courts to apply an individualized analysis in ice
cases rather than rubber-stamping a “wintry conditions” rule deeming every patch of ice on
property opened to invitees open and obvious as a matter of law. The facts of this case
demonstrate that ice may not be visible on casual inspection despite a surrounding winter
landscape.

        It snowed only lightly and briefly on the day of Young’s fall, and there was no
accumulation. The parking lot had been cleared of snow that had fallen earlier in the week.
Young testified that he did not see the ice. The representative of the gas station who was
actually present that night did not see any ice. The witnesses’ inability to discern the presence of
the ice means that a jury should decide whether an average person of ordinary intelligence would
have discovered it on casual inspection, bearing in mind that it was February in Michigan.

        A fact question also exists regarding whether Walton Oil had constructive knowledge of
the ice’s presence. There is no record evidence that Walton Oil had actual notice of the ice. But

                                                -3-
the constructive notice doctrine contemplates liability if a defendant knew or should have known
of a dangerous condition on the premises.

        An invitee such as Young is “entitled to expect” that a premises possessor will “take
reasonable care to know the actual conditions of the premises and either make them safe or warn
the invitee of dangerous conditions.” Kroll v Katz, 374 Mich 364, 373-374; 132 NW2d 27 (1965)
(quotation marks omitted). This Court has recognized that an occupier’s knowledge of the
“actual conditions” of the premises demands adequate inspection to discover latent dangers:

       “The occupier is not an insurer of the safety of invitees, and his duty is only to
       exercise reasonable care for their protection. But the obligation of reasonable
       care is a full one, applicable in all respects, and extending to everything that
       threatens the invitee with an unreasonable risk of harm. The occupier must not
       only use care not to injure the visitor by negligent activities, and warn him of
       latent dangers of which the occupier knows, but he must also inspect the premises
       to discover possible dangerous conditions of which he does not know, and take
       reasonable precautions to protect the invitee from dangers which are foreseeable
       from the arrangement or use.” [Conerly v Liptzen, 41 Mich App 238, 241-242;
       199 NW2d 833 (1972), quoting Prosser, Torts (3d ed), § 61, pp 402-403,
       (emphasis added).]

         The employees of Walton Oil knew that ice sometimes formed on the surface of the gas
station. They kept salt at the ready for deployment in preventing slippery patches. One
employee specifically acknowledged that ice sometimes develops in pavement “cracks.” These
realities of a gas station in winter would reasonably support a need for regular inspections of the
premises. Further, a Walton Oil employee testified that an inspection occurred several hours
before Young’s fall.

        Viewed in the light most favorable to Young, the ice on which he fell was present at 3:00
p.m. when Al Asadi claims to have inspected the premises. We base this conclusion on the fact
that nothing changed, weather-wise, throughout that afternoon and evening. The temperature
remained the same: well below freezing. There was no snow. No evidence supports that
something happened that would have suddenly caused a patch of ice to form. The reasonable
inference is that if Al Asadi actually inspected the premises at 3:00 p.m., he did so negligently.
And although the ice may have been difficult to see, Al Asadi’s duty included looking for
hazards, not merely casually inspecting the premises. Price v Kroger Co of Mich, 284 Mich App
496, 500; 773 NW2d 739 (2009). A jury could reasonably find that Al Asadi should have seen
the ice, especially since Krayem found it the next day when he inspected the premises.

        “Generally, the question of whether a defect has existed a sufficient length of time and
under circumstances that the defendant is deemed to have notice is a question of fact, and not a
question of law.” Banks v Exxon Mobil Corp, 477 Mich 983, 984; 725 NW2d 455 (2007), citing
Kroll, 374 Mich at 371. Questions of fact abound in this case both as to notice and whether the
ice was open and obvious.




                                                -4-
      Accordingly, we vacate the grant of summary disposition in Walton Oil’s favor and
remand for further proceedings. We do not retain jurisdiction.




                                                     /s/ Karen M. Fort Hood
                                                     /s/ Elizabeth L. Gleicher




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