                           STATE OF MICHIGAN

                            COURT OF APPEALS



LAROSA BUTLER,                                                        UNPUBLISHED
                                                                      August 2, 2018
               Plaintiff-Appellee,

v                                                                     No. 336671
                                                                      Wayne Circuit Court
GOLD MOUNTAIN INC, d/b/a EASY PICK                                    LC No. 15-015302-NO
FOOD MARKET,

               Defendant-Appellant.


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

RONAYNE KRAUSE, J. (dissenting)

       I respectfully dissent, because I find that plaintiff adequately established a genuine
question of fact regarding defendant’s actual notice of the ice, and I would find the ice not to be
open and obvious. I would therefore affirm and remand for further proceedings.

        I agree with the lead opinion that this Court should decline the parties’ invitations to draw
conclusions about the truthfulness of each others’ witnesses. White v Taylor Distributing Co,
Inc, 275 Mich App 615, 624-625; 739 NW2d 132 (2007). My colleagues, explicitly or
implicitly, nevertheless do so. At a summary disposition stage of proceedings, the courts “may
not weigh the evidence or make determinations of credibility,” and summary disposition is
improper if the evidence is conflicting. Patrick v Turkelson, 322 Mich App 595, 605-606; 913
NW2d 369 (2018) (quotation omitted). When reviewing a motion for summary disposition
under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, the court “must
consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the
party opposing the motion, and grant the benefit of any reasonable doubt to the opposing party.”
Radke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993).

      The lead opinion accurately recites portions of plaintiff’s testimony. However, a more
complete recitation is as follows:

              [Defendant’s attorney]. Tell me about your conversation with the guy that
       was dealing with the bottles.

                       [Plaintiff’s attorney]: I’ll object to form.



                                                 -1-
       A. I walked in and a lady was first that I talked to, told her I fell, the bottle
guy told me to be careful, that’s what he said, he told me to “Be careful.”

        Q. And why did he say to be careful?

                [Plaintiff’s attorney]: Object to foundation.

                [Defendant’s attorney]: Let me rephrase.

        Q. Did he tell you why he was telling you to be careful?

        A. Because when I walked in I told them both I fell.

        Q. Okay.

        A. And he was like “You should be careful.” And me and the lady
interacted.

        Q. What did the lady say to you when you told her you fell?

        A. She said – what did she say. I walked in and I said “I just fell outside
the store.”

                And she said to me “Oh.” She said “Oh, you fell out there?”

                I said “Yeah.”

                And that’s when the bottle guy said – yeah, “Be careful.”

              And she said to me “Oh,” something of she was “Sorry,” and she
was sorry and with a – with a grin.

        Q. I’m sorry?

       A. With a smile, with a grin, that’s what I recall and she was – they were
going to take care of it.

        Q. She said they were going to take care it of? [sic]

       A. Yeah, she said they were going to take care of it. As if they knew it
was there like we’ll take care of it with a grin, was kind of –

        Q. What did you fall on?

        A. I fell on ice right here (indicating)

                                            * * *



                                          -2-
       Q. So the lady inside she said “Sorry” and grinned at you. Did you have
any other conversation with her?

       A. No.

       Q. Did you ask her to fill out an incident report or anything like that?

       A. No.

       Q. Did you tell her what caused your fall?

       A. No. Told her I slipped and fell.

       Q. Did you tell her there was ice out there?

       A. I told the bottle guy, me and the bottle guy. Her, she was grinning.

                                         * * *

        Q. I only have a few more questions for you. The lady that you saw at the
store, you didn’t get her name. Did you tell me that you did not recall what color
hair she had?

       A. No. I don’t recall what color hair she had, I just remember –

       Q. Okay.

       A. –her apologizing and saying that she would get to the ice out there that
they hadn’t got to.

       Q. And you said she was behind the counter?

       A. Yes.

                                         * * *

       [Plaintiff’s attorney]. And we were talking about – counsel asked about
conversation [sic] you had with the employee when you got – entered into the
store.

       A. Uh-huh (affirmative).

        Q. So I just want to talk to you about that. You indicated that the
employee said – after you told her that you had fallen, she said she would take
care of it. What did she mean when she indicated she would take care of it, what
did she indicate to you?

                [Defendant’s attorney]: Object to form and foundation. You can
answer.

                                        -3-
                [The witness]: She said I can answer?

        Q. Yeah, you can answer.

       A. Okay. She said – I told her I fell and she said – she told me she was
sorry but with a little funky grin, little smirk behind it, but she did tell me that she
would get to it, that they hadn’t got to it but they would get to it –

        Q. Okay.

        A. – I guess put salt out.

        Q. Okay.

       A. But that they hadn’t had time to put salt out or get salt out so that she
would get to it but she did apologize.

       Q. Okay. So it sounds like she acknowledged that she had known about it
but didn’t have time to get to put salt out?

                [Defendant’s attorney]: I would object to form and foundation.

        A. She acknowledged that she knew.

        Q. What was your impression by what she said how long she had known
about it?

                [Defendant’s attorney]: Again, object to form and foundation.

        A. Just amazed that you knew and didn’t do anything.

       Q. Okay. And what was your impression of how long she had known
about the ice that you slipped on?

                [Defendant’s attorney]: Same objection.

        A. Okay. Say it again.

        Q. Want me to rephrase it?

        A. Yeah.

         Q. That’s fine. When she told you – you indicated that she said she
would get to it, she didn’t have time to, because – to put the salt out but she would
get to it?

        A. She would get to it.

        Q. So she acknowledged that she was aware of it –

                                          -4-
         A. Yes, ma’am.

       Q. – correct? And what was your impression when she told you that
about how long she had known that the ice was out there?

                  [Defendant’s attorney]: Same objection to the foundation of the
question.

         A. She didn’t do anything, that she had left it out there, and I told her I
fell.

         Q. And afterwards did you see her go out there and –

         A. No.

         Q. – put salt down?

         A. No. And the guy never went either.

                                          * * *

        [Defendant’s attorney]. Now you had said that the lady that you talked to
that she said they’d take care of it and that you took this to mean that she knew
about it. Why did you think she knew about it?

       A. Because she said she knew, she said that she hadn’t got to it, that she
would take care of it.

         Q. She hadn’t gotten to what?

         A. I guess putting salt out.

         Q. Is that what she said to you or did she say – I mean, like what were her
words?

         A. That was our conversation. Like I said, I walked into the store, told her
I fell, the lady and the guy, and she said – she apologized, she said okay, she
apologized to me with the laugh, and then after the laugh she said she would get
to it, and I guess they hadn’t – she said they hadn’t got to it or they would get to
it.

         Q. Do you know which she said?

         A. Can’t recall but I’m think’n that she really said to me that she hadn’t
got to it and she would get to it.

         Q. But you’re not sure?



                                         -5-
          A. No. And I don’t know if the bottle guy went out and put the salt out
either.

                                            * * *

       Q. So between the five minutes that you – or I’m sorry. Between the time
that you had the conversation with her and the time you left about five minutes
passed?

       A. I’m saying the time he came – yeah, when I left out [sic] five minutes
she didn’t come out or she didn’t come and put salt out, she didn’t come out
behind me at all.

          Q. Okay. Did she ever say to you that she saw the ice?

          A. She indicated that she knew it was out there.

          Q. When did she say that?

         A. When we had the conversation, I told you when I said to her that – she
said I would get to it, they hadn’t got to it or they was [sic] going to get to it and
like I said, her or the guy never left out [sic] behind me.

         Q. I understand that. But you’re saying that her saying that they would
get to it --

          A. They were going to get to it. She was going to take care of it.

          Q. Did she ever say to you “I know there’s ice out there”?

          A. No, she didn’t say “I know there’s ice out there” –

          Q. Okay.

          A. – but she did indicate that she knew it was out there.

          Q. And in what way did she indicate that to you?

          A. That she would get to it.

          Q. So when she said “she would get to it” to you that meant she knew?

       A. She said she was going to handle it, that they hadn’t got out there, she
would get to it.

      Q. But she never actually said outright that she knew that there was
something out there; is that correct?

          A. That they hadn’t handled it so that she knew.

                                           -6-
       Q. I’m not asking for what you –

       A. Oh, okay.

       Q. – I mean, you’re speculating right now, aren’t you?

       A. Okay.

      Q. Wouldn’t you agree that that’s speculation, you’re assuming that you
knew what she meant when she said (inaudible) –

               [Plaintiff’s attorney]: Object to form.

       Q. But she didn’t actually say that she knew it was ice, did she?

       A. I’m not assuming, I’m telling you she knew the ice was out there.

       Q. How do you know she (inaudible) –

       A. She said she was going to get to it, that they hadn’t got to it, so if you
hadn’t got to it you knew the ice was out there.

                                          * * *

       [Plaintiff’s attorney]. And I know you just went back and forth with
counsel about what was said by the employee at the store.

       A. Yes.

       Q. And you indicated that the employee knew the ice was out there by
what she was telling you?

       A. Yes.

       Q. So when you walked in you told her that you had fallen on ice;
correct?

       A. Yes.

       Q. And what did she say in response?

        A. That she would take care of it, that they hadn’t got to it and she would
take care of it, and she apologized to me.

       Q. So she knew the ice was out there?

               [Defendant’s attorney]: Objection, form and foundation –

       A. Yes.

                                        -7-
                       [Defendant’s attorney]: – speculation.

               Q. Did she – so she said “Sorry,” she smirked.

               A. Yes.

               Q. And then she said – what did she say?

               A. That she would take care of it, that they hadn’t got to it and she would
       take care of it.

Consequently, I believe the lead opinion mischaracterizes plaintiff’s testimony. Contrary to the
lead opinion’s assertion, plaintiff did not “admit[] that at no time did either person specifically
acknowledge the presence of ice.” Rather, plaintiff only admitted that neither employee said that
they knew of the ice in in those exact words. I believe my colleagues, explicitly or implicitly,
unfairly deem plaintiff’s testimony speculative because some of her responses were unclear or
because plaintiff could not recall the entirety of her conversation verbatim.

        Plaintiff’s testimony establishes a genuine question of fact whether defendant’s clerk had
actual notice of the ice. First, plaintiff repeatedly emphasized that the clerk said she “hadn’t got
to” the ice. Such a statement necessarily implies awareness that there had been a matter to
address; in other words, knowledge of a pre-existing condition. Even if plaintiff could not recall
specifically what words the clerk used, any limitations of plaintiff’s memory go to the weight
and credibility the trier of fact may choose to give her testimony, not to its admissibility. Triple
E Produce Corp v Mastronardi Produce, Ltd, 209 Mich App 165, 175; 530 NW2d 772 (1995);
People v Burch, 170 Mich App 772, 775; 428 NW2d 772 (1988). Furthermore, to the extent it
may be ambiguous whether plaintiff was recounting further conversation or surmising the clerk’s
intent, any doubt must be construed in favor of plaintiff as the non-moving party. Radke, 442
Mich at 374.

        Additionally, plaintiff’s partial reliance on nonverbal communication, such as the clerk’s
facial expression and demeanor, is consistent with how people communicate. See Gadde v Mich
Consolidated Gas Co, 377 Mich 117, 127; 139 NW2d 722 (1966). Our jurisprudence is founded
on the principle that the trier of fact may draw non-speculative conclusions based in part on
witnesses’ demeanor and an associated “plethora of subjective and objective factors” that cannot
be captured in words. See People v Stewart, 36 Mich App 93, 98; 193 NW2d 184 (1971); see
also People v Paille, 383 Mich 621, 627-628 n 2; 178 NW2d 465 (1970). Furthermore, “facial
expressions, body language, and manner of answering questions” are considered “[p]erhaps the
most important criteria in selecting a jury” to attorneys conducting voir dire, People v Unger,
278 Mich App 210, 258; 749 NW2d 272 (2008), which would be reasonable to apply to jurors or
to any other person acting as a trier of fact. An admission may be implicit, Shook v Proctor, 27
Mich 349, 359-360 (1878), and testimony is not improperly conclusory merely because a witness
can only recall “the main fact” of what was spoken rather than the “particular expressions.”
Chambers v Hill, 34 Mich 523, 524-525 (1876). Plaintiff expressly stated that the clerk
acknowledged her prior awareness of the ice, which by itself creates a triable question of fact.
However, even presuming plaintiff was merely stating a conclusion, I believe the lead opinion



                                                -8-
inappropriately discounts plaintiff’s objective and particularized articulations of why she drew
that conclusion.

        Because there is a genuine question of fact as to whether defendant was on actual notice
of the ice, it is necessary to address whether the ice was open and obvious. Premises owners in
Michigan are required to exercise reasonable care to protect invitees from unreasonable risks of
harm from dangerous conditions on the premises, unless the dangerous condition is open and
obvious. Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 477-478; 760 NW2d 287
(2008). This Court has rejected the contention that black ice is open and obvious per se “without
evidence that the black ice in question would have been visible on casual inspection before the
fall or without other indicia of a potentially hazardous condition.” Id. at 483. As the lead
opinion’s recitation of the evidence suggests, little, if any, evidence of such indicia existed. As a
consequence, there is no basis for finding the black ice open and obvious. Id.

        At a summary disposition stage of proceedings, the issue before the court is not whether a
party should ultimately prevail at trial on the basis of the admitted evidence, but whether the
admitted evidence shows a question of fact within the exclusive province of the trier of fact. See
Lytle v Malady (On Reh), 458 Mich 153, 175-176 n 23; 579 NW2d 906 (1998) (WEAVER, J.)
(quoting Anderson v Liberty Lobby, Inc, 477 US 242, 249-250; 106 S Ct 2505; 91 L Ed 2d 202
(1986), for the proposition that although evidence must be more than “merely colorable” to raise
an issue for trial, “the judge’s function is not himself to weigh the evidence and determine the
truth of the matter but to determine whether there is a genuine issue for trial”). I believe the lead
opinion subjects plaintiff’s deposition testimony to excessive scrutiny at this stage of the
proceedings. Plaintiff’s testimony constitutes competent evidence that defendant’s clerk was
actually aware of the ice at defendant’s door. I would therefore affirm the trial court’s denial of
summary disposition and remand for further proceedings.

                                                              /s/ Amy Ronayne Krause




                                                -9-
