                            STATE OF MICHIGAN

                            COURT OF APPEALS



DEMETRIA MOSES,                                                     UNPUBLISHED
                                                                    January 24, 2017
               Plaintiff-Appellant,

v                                                                   No. 329635
                                                                    Oakland Circuit Court
ARBORS OF ALDINGBROOKE, LLC, doing                                  LC No. 2014-140622-NO
business as ALL SEASONS OF WEST
BLOOMFIELD,

               Defendant-Appellee,

and

SUE’S LANDSCAPING, INC.,

               Defendant.


Before: BECKERING, P.J., and SAWYER and SAAD, JJ.

PER CURIAM.

         Plaintiff appeals as of right a stipulated order of dismissal dismissing her premises
liability action. We affirm.

        Plaintiff challenges the trial court’s order granting defendant’s motion for summary
disposition. Plaintiff argues that the trial court erred in granting defendant’s motion for summary
disposition because a special aspect existed that would preclude application of the open and
obvious doctrine to the alleged hazardous condition on defendant’s premises. We disagree.

        Defendant moved for summary disposition under MCR 2.116(C)(10). The trial court
granted defendant’s motion under MCR 2.116(C)(10), finding that there was no genuine issue of
material fact. Motions for summary disposition are reviewed de novo. Bonner v City of
Brighton, 495 Mich 209, 220; 848 NW2d 380 (2014). A court must consider the pleadings,
depositions, affidavits, admissions, and other documentary evidence which has been filed by the
parties in a light most favorable to the nonmoving party when deciding whether to grant a motion
for summary disposition under MCR 2.116(C)(10). Id. “Summary disposition is appropriate
under MCR 2.116(C)(10) if, ‘[e]xcept as to the amount of damages, there is no genuine issue as
to any material fact, and the moving party is entitled to judgment or partial judgment as a matter

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of law.’ ” Id., citing MCR 2.116(C)(10). “ ‘A genuine issue of material fact exists when,
viewing the evidence in a light most favorable to the nonmoving party, the record which might
be developed . . . would leave open an issue upon which reasonable minds might differ.’ ” Id.,
citing to Debano-Griffin v Lake Co, 493 Mich 167, 175; 828 NW2d 634 (2013).

        A premises liability claim is distinguishable from an ordinary negligence claim in that a
defendant’s duty arises from being an owner, possessor, or occupier of land, rather than from a
duty to conform to a standard of care while performing a certain activity. Lymon v Freedland,
314 Mich App 746, 756; 887 NW2d 456 (2016). Thus when a condition of the land, such as an
icy driveway, leads to injury, the claim is based in premises liability. Id. Here, plaintiff alleges
that she was injured when she slipped on defendant’s icy sidewalk. An icy sidewalk is a
condition of the land. Thus, premises liability is the appropriate framework under which to
analyze plaintiff’s claim.

        A premises possessor owes a duty to invitees to use reasonable care in protecting them
from “unreasonable risks of harm posed by dangerous conditions on the owner’s land.” Hoffner
v Lanctoe, 492 Mich 450, 460; 821 NW2d 88 (2012). An invitee is a person who has an
invitation to enter the land. Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 596-597;
614 NW2d 88 (2000). A landowner has a duty to warn the invitee of any known dangers and to
keep the premises safe. Id. A premises possessor is liable for harm resulting from breaching this
duty of care if it knows or should know of the dangerous condition and the invitee is unaware of
the condition. Hoffner, 492 Mich at 460. A premises possessor is not liable, however, for a
dangerous condition that is open and obvious, because the invitee is aware of the dangerous
condition and should make a reasonable effort to protect themselves. Id. at 460-461. Whether a
snow or ice condition is open and obvious turns on whether a reasonably prudent person under
the circumstances would see the condition as posing a risk to their safety. Id. at 464.

         A condition that is open and obvious may, nonetheless, pose such an unreasonable risk of
harm that a premises possessor will still be held liable. Id. at 461-462. Likewise, “if the
condition is open and obvious, a plaintiff who is injured by the condition may avoid summary
disposition only if there are special aspects to the condition.” Id. at 464. Our Supreme Court has
noted two instances where “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.” Id. at 462. “[T]he standard for “effective unavoidability” is that a person, for all
practical purposes, must be required or compelled to confront a dangerous hazard.” Id. at 469.
In other words, where a person has a choice to avoid the dangerous condition, it is not effectively
unavoidable. Id. The Court reminds us that “exceptions to the open and obvious doctrine are
narrow and designed to permit liability for such dangers only in limited, extreme situations.” Id.
at 472.

         Plaintiff slipped and fell on ice on the sidewalk outside defendant’s assisted living
facility, just before her overnight shift as an emergency monitor ended. Plaintiff admitted that
she was aware of the ice on the sidewalk. Additionally, she knew that it was freezing out, saw it
snow, and observed frost on the windshields of cars outside. A reasonably prudent person under
the circumstances would recognize that the sidewalk was icy and that this could pose a slip-and-
fall hazard. As a longtime Michigan resident, plaintiff was aware that this type of weather could
mean slippery conditions. Plaintiff also admitted to walking carefully on the ice so that she

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would not fall. Plaintiff was aware of the ice and aware that it could cause her to fall. Therefore,
there is no genuine issue of material fact that the dangerous condition was open and obvious.

        Thus, the primary issue is whether the icy sidewalk was effectively unavoidable, thereby
creating an unreasonable risk of harm, which would preclude application of the open and
obvious doctrine. Plaintiff fell on her way back into the building after going outside to warm her
car up. In her deposition, plaintiff admitted that there were several routes back to the building.
In her response to defendant’s motion for summary disposition, plaintiff argued that while there
may have been alternate routes, it is speculation whether any of these routes, including walking
across grass “saturated with water and ice,” were any safer than walking on the sidewalk. In
plaintiff’s deposition, when asked why she did not choose to walk across the grass, plaintiff
answered that “[t]he grass was very wet.” Plaintiff did not state that she had any concern about
the grass being slippery.

       Additionally, plaintiff argued that there was only one unlocked door back into the
building, further implying that she did not have a choice in her route back to the building. In her
deposition, however, plaintiff stated that there were several entrance and exit doors, all of which
she could use if she wanted to. She also confirmed that she only chose that particular door
because that is where she parked.

        Lastly, plaintiff argued that because she had to retrieve her personal belongings from the
building, the icy sidewalk was effectively unavoidable. In support of her argument, plaintiff
relies on an unpublished case; however, unpublished opinions are not binding on this Court and
there are precedential cases that provide better guidance in this matter.

        In Lymon, this Court specifically discusses the idea of walking on grass as an alternate
route where the defendant’s driveway was covered in snow and ice. Lymon, 314 Mich App at
761-762. There, the plaintiff was employed as an aide for an elderly lady in the defendant’s
residence. Id. at 1. In order to reach her patient, the plaintiff had to walk up a very steep snow-
and-ice covered driveway or a very steep snow-and-ice-covered yard. Id. at 8. This Court found
that the plaintiff was compelled to enter the premises to assist her patient, who required the
plaintiff’s care. Id. This Court also considered whether the plaintiff had an alternate route
through the yard and reasoned that there was “a question of fact as to whether the yard provided
a viable alternative route” because the yard was steep and also presented a slippery hazardous
condition. Id. at 9. This Court contrasted this plaintiff’s circumstances with the plaintiff in
Joyce v Rubin, 249 Mich App 231, 238; 642 NW2d 360 (2002), where the plaintiff slipped and
fell on the defendant’s snowy sidewalk while trying to retrieve her personal belongings. Lymon,
314 Mich App at 761. In Joyce, this Court reasoned that the plaintiff could have retrieved her
belongings another day or could have used an alternate route to access the house, even though
plaintiff argued that the defendants refused her access to an alternate route. Id. at 7. Therefore,
in Lymon, this Court held that there was a question of fact as to whether the dangerous condition
was effectively unavoidable where the plaintiff was confronted with potentially dangerous
conditions for all routes to the house. Id. at 9.

        This case is distinguishable from Lymon. Unlike the plaintiff in Lymon, plaintiff did have
an alternate route back to the building. Plaintiff testified that she had alternate routes back to the
building. Even if we were to assume that other sidewalks or paved surfaces were also icy,

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plaintiff stated that her reason for not walking across the grass was that it was “very wet.” She
did not express concern that the grass was slippery or created any other hazard. Like the plaintiff
in Joyce, plaintiff had an alternate route to the building. Therefore, even if plaintiff were
compelled to go back to the building, she had an alternate route. Thus, the dangerous condition
was avoidable.

        In summary, the evidence demonstrates that plaintiff chose to cross the icy sidewalk
multiple times, despite being aware of the ice and the potential for falling and having the choice
not to do so. Plaintiff chose to go warm her car and walk back to the building (and would have
likely crossed the ice a third time on her way back out to her car had she not slipped and fell),
rather than make one trip out to her car at the end of her shift. Even viewing the evidence in the
light most favorable to the plaintiff, it is hard to ignore that plaintiff’s deposition testimony,
which was under oath, does not exactly line up with her arguments in her response to defendant’s
motion for summary disposition. Under oath, plaintiff admitted that there were alternate routes
back to the building, including the grass, but she chose to cross the icy sidewalk to her car and
back, fully aware that she could slip and fall. This Court has held that where a plaintiff has the
choice whether to confront a hazardous condition, the condition is not effectively unavoidable.
Hoffner, 492 Mich at 469. Therefore, the trial court correctly found that there was no genuine
issue of material fact as to whether the hazardous condition was open and obvious and that there
were no special aspects that would preclude application of the open and obvious doctrine.

       Affirmed.



                                                            /s/ Jane M. Beckering
                                                            /s/ David H. Sawyer
                                                            /s/ Henry William Saad




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