                          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KEN YOUNG,                                                          UNPUBLISHED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.

GLEICHER, J. (concurring).

        I concur in full with the majority opinion. I write separately to respectfully respond to
the dissent’s open and obvious danger analysis.

         The dissent tacitly admits that a fact question exists regarding whether the ice on which
plaintiff fell was visible on casual inspection. That fact question is not material, the dissent
insists, because the surrounding wintery conditions supplied “visual clues” of dangers that might
be present, rendering the ice open and obvious as a matter of law.

       This approach comes dangerously close to resurrecting the natural accumulation doctrine,
which our Supreme Court discarded in Quinlivan v Great Atlantic & Pacific Tea Co, Inc, 395
Mich 244, 261; 235 NW2d 732 (1975). Moreover, the dissent’s focus on the weather is
misplaced. This is a premises liability case, which means that the legal issues relate to the
condition of the land rather than the status of the climate.

        Quinlivan is instructive on both scores. The plaintiff in that case parked in a “snow-
covered and icy” grocery store parking lot, took several steps, and fell. Id. at 247. He alleged
that “defendants negligently permitted a dangerous icy condition to exist in the parking lot area,”
and a jury agreed. Id. at 248. This Court reversed, invoking the reasoning of the natural
accumulation doctrine. That doctrine holds that a premises owner is not liable for injuries due to
the natural accumulation of snow and ice. See Quinlivan v Great Atlantic & Pacific Tea Co, Inc,
51 Mich App 242, 244; 214 NW2d 911 (1974). This Court’s opinion highlighted that during the
week before Mr. Quinlivan’s injury, 4.3 inches of snow fell and the “parking lot surface was
covered with icy patches, dry patches, and piles of snow.” Id. Because no evidence supported
that the defendant had “increased the hazard created by the natural accumulation of snow and
ice,” this Court reversed the jury’s verdict.


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       The Supreme Court emphatically rejected that wintery conditions relieve a premises
owner of the responsibility to exercise reasonable care. A unanimous Court adopted the Alaska
Supreme Court’s approach to the duty owed to invitees during winter, expressed in Kremer v
Carr’s Food Ctr, Inc, 462 P2d 747 (Alas, 1969). In Kremer, the Alaska Supreme Court held that
snowy surroundings do not eliminate a landowner’s duty of care:

       The mere fact that snow and ice conditions prevail for many months throughout
       various locations in Alaska is not in and of itself sufficient rationale for the
       insulation of the possessor of land from liability to his business invitee. Nor do
       such climatic conditions negate the possibility that the possessor should have
       anticipated harm to the business invitee despite the latter’s personal knowledge of
       the dangerous snow and ice conditions or the general obviousness of such
       conditions. [Id. at 752 (emphasis added).]

        In Quinlivan, 395 Mich at 261, our Supreme Court borrowed the reasoning of the Alaska
Supreme Court, rejecting “the prominently cited notion that ice and snow hazards are obvious to
all and therefore may not give rise to liability.” The Court expressed that although an invitor
does not guarantee an invitee’s safety, “the invitor has a duty to exercise reasonable care to
diminish the hazards of ice and snow accumulation.” Id. This requires “that reasonable
measures be taken within a reasonable time after an accumulation of ice and snow to diminish
the hazard of injury to the invitee.” Id. In regard to Mr. Quinlivan, the Court summarized:

       Evidence at trial indicated that at the time of the accident the parking lot was ice
       and snow covered and very slippery. Snow had not fallen for several days and
       there was no evidentiary indication that salt had been applied to the parking lot
       surface. Measuring the appropriate duty against the evidence, the jury could have
       permissibly determined that A & P’s failure to exercise reasonable care caused
       plaintiff's injuries. [Id. at 261.]

       This case differs from Quinlivan in a meaningful way. Here, the parking lot was not ice
and snow covered. But the Supreme Court’s holding in Quinlivan means that even when wintry
conditions abound, a premises owner maintains a duty of due care. In other words, mere “visual
clues” of winter do not abrogate the invitor’s duty of care. Indeed, the Supreme Court in
Quinlivan strenuously rejected “the prominently cited notion that ice and snow hazards are
obvious to all and therefore may not give rise to liability.” And unlike in Quinlivan, here there
were no clues on the premises that the area around the gas pumps was dangerous.

        Despite this factual distinction, Quinlivan guides my respectful rejection of the dissent’s
analysis. Even in the winter, the time-honored principles of premises liability law apply. When
snow covers the ground and patches of ice are in view, an invitor nevertheless “has a duty to
exercise reasonable care to diminish the hazards of ice and snow accumulation[.]” Hoffner v
Lanctoe, 492 Mich 450, 464; 821 NW2d 88 (2012). The dissent goes astray, I believe, by
conflating wintry conditions with an open and obvious danger created by a condition on the
premises.

      Objectively (and as the dissent concedes), whether the ice on which plaintiff slipped was
“open and obvious” is a subject of dispute in this case. The weather conditions, the dissent

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argues, tip the legal scale toward a finding of no duty. According to the dissent, the condition of
the environment, rather than the condition of the premises, defines the landowner’s duty. I
submit that Quinlivan repudiated this reasoning. But even if that case is distinguishable for
reasons I cannot fathom, I would find the dissent’s argument logically flawed.

        This is a premises liability case. In a premises liability action, we focus on the condition
of the premises. When evaluated in the light most favorable to plaintiff, the gas station premises
did not reveal any ice. That is not to say that the surrounding weather conditions are irrelevant.
Whether plaintiff should have expected to encounter ice based on the temperatures and the
climatic changes that occurred over the course of that day raises a question of comparative
negligence, and not duty. See Quinlivan, 395 Mich at 261: “The conduct of the invitee will often
be relevant in the context of contributory negligence.”

        I agree with the dissent in this repsect: this Court’s “decisions have been somewhat
inconsistent in this area of the law.” Our Supreme Court has contributed to the inconsistencies.
In Lugo v Ameritech Corp, Inc, 464 Mich 512, 523-524; 629 NW2d 384 (2001), the Supreme
Court instructed that “it is important for courts in deciding summary disposition motions by
premises possessors in ‘open and obvious’ cases to focus on the objective nature of the condition
of the premises at issue, not on the subjective degree of care used by the plaintiff.” Indeed, the
Lugo Court chastised the circuit court for engaging in precisely the same reasoning as advanced
by the dissent:

       The trial court’s remarks indicate that it may have granted summary disposition in
       favor of defendant because the plaintiff “was walking along without paying
       proper attention to the circumstances where she was walking.” However, in
       resolving an issue regarding the open and obvious doctrine, the question is
       whether the condition of the premises at issue was open and obvious and, if so,
       whether there were special aspects of the situation that nevertheless made it
       unreasonably dangerous. In a situation where a plaintiff was injured as a result of
       a risk that was truly outside the open and obvious doctrine and that posed an
       unreasonable risk of harm, the fact that the plaintiff was also negligent would not
       bar a cause of action. This is because Michigan follows the rule of comparative
       negligence. Under comparative negligence, where both the plaintiff and the
       defendant are culpable of negligence with regard to the plaintiff’s injury, this
       reduces the amount of damages the plaintiff may recover but does not preclude
       recovery altogether. [Id. at 523.;]

       Yet, as the dissent points out, the Supreme Court’s orders in Janson v Sajewski Funeral
Home, Inc, 486 Mich 934, 935; 782 NW2d 201 (2010), and Cole v Henry Ford Health Sys, 497
Mich 881; 854 NW2d 717 (2014), seem to support that wintry conditions factor into the open
and obvious danger analysis. I respectfully disagree with the dissent’s interpretation of those
orders. But to the extent that the orders shifted the focus from the objective condition of the
premises to the plaintiff’s subjective degree of care, I find them unhelpful and at odds with Lugo.

       In Cole, 497 Mich at 881, the Supreme Court cited “indicia” of winter—snow on the
ground, temperatures below freezing, and recent precipitation—as support for the proposition
that “A reasonably prudent person would foresee the danger of icy conditions on the mid-winter

                                                -3-
night the plaintiff's accident occurred.” In Janson, 486 Mich at 935, the Court expounded:
“These wintry conditions by their nature would have alerted an average user of ordinary
intelligence to discover the danger upon casual inspection.” These comments about the weather
have nothing to do with the objective conditions of the land. Rather, they relate solely to the
plaintiffs’ failure to use due care under the prevailing climatic circumstances by watching out for
possible dangers. The orders speak in the language of comparative negligence, not duty.

        In my view, the weather conditions that existed when plaintiff Ken Young fell should
inform whether either he or defendant breached their respective duties of care, not whether such
duties existed in the first place. Hazardous conditions in the environment—snow, fog, fireworks,
barking dogs—may support that a party negligently failed to heed warnings of danger. But such
conditions do not negate the duty of reasonable care owed to an invitee.



                                                            /s/ Elizabeth L. Gleicher




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