            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



MICHELLE HAGGART, also known as                                    UNPUBLISHED
MICHELLE HAGGART-WESNER,                                           February 21, 2019

               Plaintiff-Appellant,

v                                                                  No. 341007
                                                                   Macomb Circuit Court
HILLS OF REGENCY I CONDOMINIUM                                     LC No. 2016-004405-NO
ASSOCIATION and KRAMER-TRIAD
MANAGEMENT GROUP, LLC,

               Defendants-Appellees,

and

CONSTRUCTION PLUS, INC., and
CONSTRUCTION PLUS LANDSCAPING
SERVICES, INC.,

               Defendants.


Before: CAVANAGH, P.J., and BORRELLO and REDFORD, JJ.

PER CURIAM.

        In this premises liability action, plaintiff appeals as of right an order granting summary
disposition under MCR 2.116(C)(10) in favor of defendants Hills of Regency I Condominium
Association and Kramer-Triad Management Group, LLC (“defendants”).1 For the reasons set
forth in this opinion, we affirm.




1
  Defendants Construction Plus, Inc., and Construction Plus Landscaping Services, Inc., were
dismissed from the case by a separate order and are not parties to this appeal.
                                        I. BACKGROUND

        This case arises out of a slip-and-fall in which plaintiff allegedly slipped on an unseen
patch of ice on a driveway outside of a condominium. According to plaintiff’s deposition
testimony, plaintiff arrived at the condominium at 8:30 a.m. on the morning of December 23,
2013, to clean and put up Christmas decorations for the couple who lived there. She parked in
the cul-de-sac in front of the condominium and made two trips, without incident, from her
vehicle to the condominium in order to carry in her cleaning supplies. Approximately two hours
after her arrival, plaintiff went back outside to get a handheld vacuum out of her vehicle, and she
slipped and fell as she was walking down the driveway.

        Plaintiff testified in her deposition that she had noticed snow on the grass; that it “was a
sunny day, melty”; and that it “was kind of icky” when she first arrived at the condominium.
During her earlier trips up the driveway when she first arrived, plaintiff had noticed that “[t]here
was some snow, but it wasn’t slippery”; she walked around the snow. Plaintiff testified that she
had lived in Michigan her entire life and was aware of the potential for ice. As she walked to her
car immediately before her fall, plaintiff attempted to walk down the driveway on the clearest,
driest path to avoid some “chunky stuff” that was apparently a broken piece of the curb located
“on the apron where the street meets the bottom of the driveway.” Plaintiff indicated that at least
some portion of the cement driveway was damp with moisture, but plaintiff testified that she did
not see any ice in the area either before or after she fell. Nonetheless, plaintiff testified that she
“knew” she had slipped on “black ice” and that she knew it was black ice “[b]ecause there was
nothing on the ground but the cement.” Plaintiff stated that there was no ice when she arrived at
the condominium at 8:30 a.m., but she claimed without explanation that the ice must have
formed sometime between her arrival and her fall at 10:30 a.m. Plaintiff did not know if there
had been rain or snow on the day of her fall before she arrived at the condominium, but she did
not think that it had rained. She also did not know what the weather had been like the night
before, and she did not know if the temperature was above freezing that day.

        Plaintiff instituted this action against defendants asserting, among other things, a
premises liability claim. 2 Defendants moved for summary disposition, arguing that the alleged
condition was an open and obvious condition and that plaintiff had not introduced any evidence
that defendants had actual or constructive notice of it. Plaintiff responded, arguing that a
question of fact existed regarding whether defendants had constructive notice of the condition;
that the condition was not open and obvious; and that even if the condition was open and
obvious, there was a genuine issue of material fact regarding whether it was effectively
unavoidable. The trial court ruled that there was no genuine issue of material fact that the ice on
which plaintiff slipped was an open and obvious condition, and the court further concluded that it




2
  In addition to her premises liability claim, plaintiff’s complaint included three additional
counts. The trial court also dismissed these additional counts on summary disposition, and
plaintiff does not challenge these rulings on appeal. The only issue before this Court is the
propriety of the trial court’s ruling on plaintiff’s premises liability claim.


                                                 -2-
was not effectively unavoidable. Thus, the trial court granted defendants summary disposition
and dismissed plaintiff’s premises liability claim against them.

        On appeal, plaintiff argues that the trial court erred when it granted defendants summary
disposition of plaintiff’s premises liability claim. Specifically, plaintiff argues that the trial court
erred (1) because there was a genuine issue of material fact regarding whether defendants had
constructive notice of the alleged condition and (2) because there was a genuine issue of material
fact regarding whether the condition was effectively unavoidable, even if it was open and
obvious.

                                     II. STANDARD OF REVIEW

         A trial court’s decision concerning summary disposition is reviewed de novo. Walters v
Nadell, 481 Mich 377, 381; 751 NW2d 431 (2008). A motion for summary disposition pursuant
to MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Joseph v Auto Club Ins
Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012). This Court “review[s] a motion brought
under MCR 2.116(C)(10) by considering the pleadings, admissions, and other evidence
submitted by the parties in the light most favorable to the nonmoving party.” Latham v Barton
Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). “Summary disposition is appropriate if
there is no genuine issue regarding any material fact and the moving party is entitled to judgment
as a matter of law.” Id. “A genuine issue of material fact exists when the record, giving the
benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable
minds might differ.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). The
moving party has the initial burden to support its claim with documentary evidence, after which
the burden “shifts to the nonmoving party to demonstrate a genuine issue of disputed fact exists
for trial.” AFSCME v Detroit, 267 Mich App 255, 261; 704 NW2d 712 (2005). Meeting this
burden requires the nonmoving party to “present documentary evidence establishing the
existence of a material fact, and the motion is properly granted if this burden is not satisfied.” Id.
“Circumstantial evidence can be sufficient to establish a genuine issue of material fact, but mere
conjecture or speculation is insufficient.” McNeil-Marks v MidMichigan Med Ctr-Gratiot, 316
Mich App 1, 16; 891 NW2d 528 (2016).

        “Questions regarding whether a duty exists are for the court to decide as a matter of law.”
Mouzon v Achievable Visions, 308 Mich App 415, 418; 864 NW2d 606 (2014). We review
issues of law de novo. Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 477; 760 NW2d
287 (2008).

                                            III. ANALYSIS

        “With regard to invitees,[3] a landowner owes a duty to use reasonable care to protect
invitees 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). However, a land possessor has no
duty to protect or warn with respect to open and obvious dangers. Id. “Whether a danger is open


3
    The parties do not dispute that plaintiff was an invitee.


                                                   -3-
and obvious depends on whether it is reasonable to expect that an average person with ordinary
intelligence would have discovered it upon casual inspection.” Id. at 461. This standard is an
objective one. Id. When the alleged dangerous condition involves ice and snow, Michigan
courts consider “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.” Id. at 463-464.

        Nevertheless, a land possessor may still be subject to liability if “special aspects of a
condition make even an open and obvious risk unreasonable.” Id. at 461. Our Supreme Court
has recognized “two instances in which the 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 463. “[N]either a common condition nor an avoidable condition is
uniquely dangerous.” Id.

        In this case, plaintiff does not argue that the alleged condition of black ice was not open
and obvious, and our analysis is thus confined to determining whether there were special aspects
that would prevent the open and obvious doctrine from barring this claim. Hoffner, 492 Mich at
464 (“[I]f 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.”). Furthermore,
with respect to special aspects, plaintiff only argues that the alleged condition was effectively
unavoidable. “Unavoidability is characterized by an inability to be avoided, an inescapable
result, or the inevitability of a given outcome.” Id. at 468. “[A] hazard must be unavoidable or
inescapable in effect or for all practical purposes.” Id. In other words, “the 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; see also id. at 456 (“[A]n ‘effectively
unavoidable’ condition must be an inherently dangerous hazard that a person is inescapably
required to confront under the circumstances.”). In contrast, “situations in which a person has a
choice whether to confront a hazard cannot truly be unavoidable, or even effectively so.” Id. at
469.

        Plaintiff relies on Lymon v Freedland, 314 Mich App 746; 887 NW2d 456 (2016), to
support her argument that the alleged condition was effectively unavoidable. In Lymon, the
plaintiff was an essential home healthcare aid working for an elderly patient with dementia and
Parkinson’s disease who required “constant care and could not be left alone.” Lymon, 314 Mich
App at 749-750, 761-762. The plaintiff arrived at the patient’s residence, which was located on a
hill and had a steep driveway, one evening for an overnight shift. Id. at 750. The plaintiff had to
park in the street because she could not drive her vehicle up the driveway without bottoming out.
Id. When she arrived, the plaintiff was confronted with a driveway that “was covered in snow
with ice build-up underneath” and a yard that was impassible due to the incline. Id. at 750-751.
The plaintiff testified that “the only way the yard could be safely traversed was ‘with some ski
sticks maybe.’ ” Id. at 751. There was further evidence that foliage next to the house obstructed
the path and would likely require someone using the alternate path through the yard to still walk
on some part of the driveway. Id. at 762. After walking about halfway up the driveway, the
plaintiff fell and was injured. Id. at 751. This Court held that although other individuals were
able to successfully access the home by way of the slippery yard, the evidence left open a
question of fact regarding whether the “plaintiff was compelled to confront the hazardous risk


                                                -4-
posed by the snowy and icy conditions” at the residence. Id. at 762-764. The Lymon Court
reasoned as follows:

       [P]laintiff in this case was compelled to enter the premises because she was a
       home healthcare aide who could not abandon her patient. As an essential home
       healthcare aide, plaintiff did not have the option of failing to appear for work.
       Gloria was an elderly patient with dementia and Parkinson’s disease, and plaintiff
       was scheduled to care for her throughout the night. Hence, abandoning Gloria
       was not an option, leaving plaintiff compelled to traverse two equally hazardous
       pathways. On the one hand, plaintiff could traverse the steep, snowy, and icy
       driveway. On the other hand, plaintiff could have traversed the steep yard next to
       the driveway, but this route also contained slippery, hazardous conditions.
       Evidence showed that some individuals were able to successfully navigate this
       route to the home, supporting the argument that the hazards on the driveway may
       have been avoidable. However, other evidence left open a question of fact as to
       whether the yard provided a viable alternative route. [Id. at 761-762.]

        The instant case is clearly distinguishable from Lymon. Plaintiff does not claim that her
only available routes between the condominium and her vehicle involved “equally hazardous
pathways” such that she had to choose which dangerous hazard to confront. Id. at 762. Instead,
plaintiff merely argues that the alleged condition was effectively unavoidable because she
consciously chose the particular path on which she fell. But our Supreme Court has explained
that it is necessary to “consider the risk posed by the condition a priori, that is, before the
incident involved in a particular case”; it is thus “inappropriate to conclude in a retrospective
fashion that merely because a particular plaintiff, in fact, suffered harm or even severe harm, that
the condition at issue in a case posed a uniquely high risk of severe harm.” Hoffner, 492 Mich at
461-462 (quotation marks and citation omitted). Moreover, plaintiff’s reason for being at the
condominium—to perform basic cleaning tasks and to put up Christmas decorations—does not
present the same level of necessity and urgency as providing round-the-clock care for a patient
with dementia and Parkinson’s disease who could not be left alone. See Lymon, 314 Mich App
at 749-750, 761-762. Plaintiff has thus failed to demonstrate that there exists a genuine issue of
material fact regarding whether she was required for all practical purposes to confront a
dangerous hazard such that the alleged hazard could be considered effectively unavoidable.
Hoffner, 492 Mich at 469. Accordingly, the trial court did not err by granting defendants
summary disposition and concluding that the alleged condition was open and obvious with no
special aspects that would make the open and obvious risk unreasonable.

        Finally, in light of this conclusion, it is unnecessary to address plaintiff’s additional
argument regarding whether defendants had constructive notice of the alleged dangerous
condition. A premises possessor may be subject to liability for a breach of the duty of ordinary
care owed to invitees “when the premises possessor knows or should know of a dangerous
condition on the premises of which the invitee is unaware and fails to fix the defect, guard
against the defect, or warn the invitee of the defect.” Hoffner, 492 Mich at 460. In other words,
a plaintiff must show that a premises possessor had actual or constructive notice of the alleged
dangerous condition in order to demonstrate a breach of the land possessor’s duty. In this case,
however, there was no legitimate factual question that defendants had no duty because of the
open and obvious nature of the alleged condition, and the question whether defendants had

                                                -5-
constructive notice is therefore irrelevant; plaintiff’s premises liability claim necessarily fails
because defendants were entitled to summary disposition in their favor on the duty element. See
Mouzon, 308 Mich App at 418 (A plaintiff asserting a premises liability action “must prove the
elements of negligence: (1) the defendant owed the plaintiff a duty, (2) the defendant breached
that duty, (3) the breach was the proximate cause of the plaintiff's injury, and (4) the plaintiff
suffered damages.”) (quotation marks and citation omitted).

       Affirmed.



                                                            /s/ Mark J. Cavanagh
                                                            /s/ Stephen L. Borrello
                                                            /s/ James Robert Redford




                                                -6-
