             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                  revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS



RONNY RETTMAN,                                                        UNPUBLISHED
                                                                      November 26, 2019
               Plaintiff-Appellant,

v                                                                     No. 344439
                                                                      Monroe Circuit Court
SANCTUARY AT MARIAN PLACE, also known                                 LC No. 17-140427-NO
as TRINITY CONTINUING CARE SERVICES,

               Defendant-Appellee.


Before: CAMERON, P.J., and CAVANAGH and SHAPIRO, JJ.

PER CURIAM.

       Plaintiff appeals as of right an order granting summary disposition to defendant in this
premises liability action. We affirm.

        On February 13, 2014, at about 8:30 p.m., plaintiff slipped and fell on an icy sidewalk
while walking to his apartment in a complex owned by defendant. Plaintiff testified that he did
not think it was completely dark outside and could not recall any problem seeing the route to his
apartment. Plaintiff admits that he did not look down at the sidewalk when he began walking,
and did not see any ice until after he fell. The responding officer, Brian Winsjansen, noted that
there was obvious ice where plaintiff had fallen. Plaintiff testified that three alternative routes to
his apartment existed, but he did not testify that he had examined the alternative routes and found
them unsafe.

        Plaintiff sued defendant alleging general negligence. After discovery, defendant filed a
motion for summary disposition under MCR 2.116(C)(10). The trial court granted defendant’s
motion on the ground that plaintiff failed to produce evidence demonstrating that the alternative
routes available to him were unsafe. Therefore, the ice was an open and obvious danger that was
not effectively unavoidable.

       On appeal, plaintiff argues that a genuine issue of material fact exists as to whether ice on
defendant’s sidewalk was effectively unavoidable. We disagree.




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       We review de novo a trial court’s decision to grant a motion for summary disposition.
Lakeview Commons v Empower Yourself, LLC, 290 Mich App 503, 506; 802 NW2d 712 (2010).
A motion brought under MCR 2.116(C)(10) tests the factual support of a plaintiff’s claim and
should be granted if, after consideration of the evidence submitted by the parties in the light most
favorable to the nonmoving party, no genuine issue regarding any material fact exists. Id.

       It is undisputed that the ice was open and obvious. The ice was visible, at least in the
immediate area where plaintiff fell, according to the responding officer’s report and plaintiff’s
own testimony. Therefore, defendant did not have a duty to warn or protect plaintiff unless a
special aspect—an open and obvious yet still unreasonable or an effectively unavoidable
danger—existed. See Hoffner v Lanctoe, 492 Mich 450, 463; 821 NW2d 88 (2012).

        Plaintiff argues that the ice was effectively unavoidable. But plaintiff testified that there
were three alternative routes to his apartment and that he did not know the condition of those
other routes. The only person who observed them was the responding police officer who
reported that except for the area where plaintiff fell there had been “copious” salting. Plaintiff
presented no evidence that anyone else had inspected the alternative routes on the day of the
incident and found them unsafe. Thus, contrary to his argument, his case is not similar to the
facts presented in Lymon v Freedland, 314 Mich App 746, 759-760; 887 NW2d 456 (2016).
Plaintiff’s reliance on a report generated by Corporal Herrick, who inspected the premises three
days after plaintiff’s fall, is misplaced. As the trial court concluded, Corporal Herrick’s
observations three days later had little, if any, probative value as to conditions on the day of the
accident. Further, there was no evidence showing that plaintiff was unable to avoid the ice by
simply stepping around it onto the grass. And we reject plaintiff’s argument that because he was
wearing an orthopedic boot it was not practical for him to seek an alternative route given the
short distances involved.

       In summary, the icy area was open and obvious and there was no evidence to establish a
genuine issue of material fact as to whether the ice on defendant’s sidewalk was effectively
unavoidable.

       Affirmed.



                                                              /s/ Thomas C. Cameron
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Douglas B. Shapiro




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