                          STATE OF MICHIGAN

                           COURT OF APPEALS



JACK BARCH,                                                         UNPUBLISHED
                                                                    October 20, 2016
               Plaintiff-Appellant,

v                                                                   No. 327914
                                                                    Van Buren Circuit Court
RYDER TRANSPORTATION SERVICES,                                      LC No. 14-640261-NO
RYDER INTEGRATED LOGISTICS, INC., and
TOTAL LOGISTIC CONTROL, LLC,

               Defendants-Appellees.


Before: K. F. KELLY, P.J., and O’CONNELL and BOONSTRA, JJ.

PER CURIAM.

        Plaintiff, Jack Barch, appeals as of right the trial court’s order granting summary
disposition to defendants, Ryder Transportation Services, Ryder Integrated Logistics, Inc., and
Total Logistic Control, LLC (collectively, Ryder). We affirm.

                                I. FACTUAL BACKGROUND

         Barch testified at his deposition that he was employed as a truck driver. On February 13,
2012, he was scheduled to deliver ice cream to Ryder’s facilities. It was a snowy day and Barch
was aware that the parking lot was covered with “[l]ight snow over what I figure was, you know,
being icy underneath.” When Barch arrived, he parked his truck and walked across the parking
lot to the office to receive further instructions about where to unload it. There was no clear path
across the parking lot. After walking about ten yards, he slipped and fell on his shoulder.

        According to Barch, he went into the office and attempted to report the incident, but the
office employee would not accept his report. The employee took Barch’s bill of lading and
assigned him to a loading dock, where Barch needed help to unload his truck because he was
unable to reach high enough to operate the doors. After unloading his truck, Barch arranged for
another driver to complete his next delivery.

       As Barch drove out of the parking lot, he realized that he had hurt his arm badly, and he
stopped the truck. Barch testified that he parked the truck in the middle of the parking lot,
“where the cars are parked for the office,” and went in to speak with the office employee. Again,
the employee would not allow Barch to fill out an accident report, so he returned to his truck,
called his employer on his cellular phone, and created an accident report for himself. Barch

                                                -1-
returned to his employer and was eventually diagnosed with a torn rotator cuff in his shoulder,
which required surgery.

        Barch filed a complaint against Ryder, alleging that the hazard posed by the icy parking
lot was effectively unavoidable because Ryder required him to park in a certain area and traverse
the parking lot from his truck to the office. Ryder moved for summary disposition, contending
that Barch could have chosen not to confront the hazard. The trial court granted summary
disposition to Ryder, concluding that the danger was not effectively unavoidable because Barch
could have chosen other options than traversing the icy parking lot. Barch now appeals.

                                  II. STANDARD OF REVIEW

        This Court reviews de novo the trial court’s decision on a motion for summary
disposition. Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 115; 839 NW2d 223
(2013). A party is entitled to summary disposition under MCR 2.116(C)(10) if “there is no
genuine issue as to any material fact, and the moving party is entitled to judgment . . . as a matter
of law.” The trial court must consider all the documentary evidence in the light most favorable
to the nonmoving party. MCR 2.116(G)(5). A genuine issue of material fact exists if, when
viewing the record in the light most favorable to the nonmoving party, reasonable minds could
differ on the issue. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).

                                         III. ANALYSIS

        Barch contends that the trial court erred when it determined that there was no genuine
issue of material fact regarding whether the hazard posed by the icy parking lot was effectively
unavoidable because Barch had no choice but to cross the icy parking lot. We disagree.

        A party may maintain a negligence action, including a premises liability action, only if
the defendant had a duty to conform to a particular standard of conduct. Riddle v McLouth Steel
Prods Corp, 440 Mich 85, 96; 485 NW2d 676 (1992). A premises owner has a duty to protect
invitees—persons who enter the owner’s premises at his or her express or implied invitation—
from hidden or latent defects on his or her property. Id. at 90-91. The open and obvious doctrine
provides that the premises owner does not have the duty to warn invitees of conditions “where
the dangers are known to the invitee or are so obvious that the invitee might reasonably be
expected to discover them[.]” Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 500;
418 NW2d 381 (1988).

        However, a premises owner may be liable even for open and obvious dangers in some
narrow circumstances. Hoffner v Lanctoe, 492 Mich 450, 472; 821 NW2d 88 (2012). A
landowner may be liable if the open and obvious danger has special aspects “that differentiate
the risk from typical open and obvious risks so as to create an unreasonable risk of harm[.]”
Lugo v Ameritech Corp, Inc, 464 Mich 512, 517; 629 NW2d 384 (2010). Special aspects include
hazards that are “effectively unavoidable” or that present “a substantial risk of death or serious
injury[.]” Id. at 518. To be effectively unavoidable, “a hazard must be unavoidable or
inescapable in effect or for all practical purposes.” Hoffner, 492 Mich at 468. “The mere fact
that a plaintiff’s employment might involve facing an open and obvious hazard does not make



                                                -2-
the open and obvious hazard effectively unavoidable.” Bullard v Oakwood Annapolis Hosp, 308
Mich App 403, 412; 864 NW2d 591 (2014).

         In this case, Barch failed to provide support for his assertion that he could not have
parked his truck in any other location to avoid the hazard. To the contrary, Barch testified at his
deposition that, as he was leaving the facility, he parked his truck near where the cars parked for
the office. Barch was not physically trapped. Additionally, there was evidence that Barch had a
cellular telephone in his possession and could have either called Ryder to report the conditions,
see Bullard, 308 Mich App at 413, or called the office to make other arrangements to deliver his
bill of lading and receive his delivery bay assignment. We conclude that the trial court did not
err when it determined that Barch did not present evidence showing a genuine issue of material
fact regarding whether the icy parking lot was effectively unavoidable.

       We affirm. As the prevailing party, Ryder may tax costs. MCR 7.219(A).

                                                            /s/ Kirsten Frank Kelly
                                                            /s/ Peter D. O’Connell
                                                            /s/ Mark T. Boonstra




                                                -3-
