Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  May 20, 2011                                                                     Robert P. Young, Jr.,
                                                                                             Chief Justice

  140385                                                                           Michael F. Cavanagh
                                                                                         Marilyn Kelly
                                                                                   Stephen J. Markman
                                                                                   Diane M. Hathaway
                                                                                       Mary Beth Kelly
  IRENE M. BROWN and GARY N. BROWN,                                                    Brian K. Zahra,
            Plaintiffs-Appellees,                                                                 Justices

  v                                                      SC: 140385
                                                         COA: 283521
                                                         Oakland CC: 2006-076956-NO
  TAUBMAN COMPANY, L.L.C.,
          Defendant-Appellant,
  and
  SOUTHEAST SERVICE CORPORATION,
  d/b/a SSC SERVICE SOLUTIONS, and IPC
  INTERNATIONAL CORPORATION,
              Defendants-Appellees.

  _________________________________________/

         On March 8, 2011, the Court heard oral argument on the application for leave to
  appeal the September 24, 2009 judgment of the Court of Appeals. On order of the Court,
  the application is again considered, and it is DENIED, there being no majority in favor of
  granting leave to appeal or taking other action.

           MARILYN KELLY, J. (concurring).

          I concur in the Court’s order denying defendant’s application for leave to appeal.
  I write separately in response to the dissent.

         This case involves a slip-and-fall accident. Plaintiff arrived at Great Lakes
  Crossing Shopping Center around 8:00 p.m. on the day of her accident. While traversing
  a walkway leading to an entrance to the shopping center, plaintiff slipped and fell on
  black ice, injuring her leg. She did not see the ice before she fell.

          The trial court granted defendant’s motion for summary disposition, concluding
  that the black ice on which plaintiff slipped was open and obvious. The Court of Appeals
  reversed the trial court and reinstated plaintiff’s case, holding that there were material
  questions of fact as to whether the ice was open and obvious. 1 We granted oral argument
  on defendant’s application for leave to appeal. 2


  1
    Brown v Taubman Co, LLC, unpublished opinion per curiam of the Court of Appeals,
  issued September 24, 2009 (Docket No. 283521).
  2
      486 Mich 939 (2010).
                                                                                           2

       The dispositive question in this case is whether the black ice was open and
obvious such that an average person of ordinary intelligence should have discovered it
upon casual inspection. 3 If so, defendant is entitled to summary disposition. 4 In this
case, plaintiff presented evidence creating questions of fact that rendered summary
disposition inappropriate.

       Plaintiff testified that it was sunny and unseasonably warm on the day she fell.
Defendant countered with weather reports showing that temperatures ranged between 22
and 32 degrees. What the temperature was at the time of the accident and during the
hours before it should be resolved by a trier of fact, not a trial judge or justice of this
Court as a matter of law.

       Furthermore, the dissent cites testimony that snow was visible on the ground near
the sidewalk. However, photographs of the walkway in question show no snow on the
walkway. Rather, there were trace amounts of snow in bushes next to the sidewalk. In
fact, defendant admitted that the walkway itself was snow-free. The fact that the parties
have presented conflicting testimony regarding the presence of snow around the walkway
further demonstrates the existence of questions of fact.

       Also supporting plaintiff’s claim that the black ice was not open and obvious was
testimony from one of defendant’s security guards. The guard testified that he returned
to the scene of the accident to spread salt on the walkway, knowing plaintiff had fallen
there. He could not see the ice that was there.

       The dissent opines that a lifelong resident of Michigan should be aware that black
ice forms during the winter. Hence it is open and obvious even when invisible. 5 If this
position were adopted by the Court, people in Michigan would be on notice that, in
winter, black ice is to be expected and no liability for falling on it exists. This
proposition is unprecedented in Michigan law. As our Court of Appeals has astutely
observed, black ice, defined as an invisible or nearly invisible coating of ice on a paved
surface, is not by its nature open and obvious. 6


3
  Bertrand v Allen Ford, Inc, 449 Mich 606, 611 (1995) (stating that “if the particular
activity or condition creates a risk of harm only because the invitee does not discover the
condition or realize its danger, then the open and obvious doctrine will cut off liability if
the invitee should have discovered the condition and realized its danger.”).
4
    See Novotney v Burger King Corp (On Remand), 198 Mich App 470, 475 (1993).
5
 It appears that the dissent would adopt a categorical rule that all icy conditions are open
and obvious during a Michigan winter.
6
    Slaughter v Blarney Castle Oil Co., 281 Mich App 474, 483 (2008).
                                                                                          3

       Finally, the dissent erroneously claims that my position would lead to property
owners always being held liable for accidents arising from black ice. As stated above,
the proper inquiry to determine liability for black ice accidents is whether a reasonable
person should have discovered the ice upon casual inspection and realized its danger.
This is an objective standard that not all plaintiffs will be able to satisfy.

       For example, suppose it is winter and there is snow on the ground. John Doe,
walking along a sidewalk, slips and falls on black ice. Jane Doe, following several yards
behind, witnesses the accident. Under this hypothetical, Jane knows or should know that
the sidewalk is hazardous. Thus, if she walks on the ice and falls, her claim might
properly be dismissed because, under an objective standard, a reasonable person would
be alerted to the danger. But John, if he had no reason to discover the black ice, should
not be charged with knowledge of the hazardous condition simply because it is winter
and snow is on the ground. 7

        To determine whether a genuine issue of material fact exists, we consider the
pleadings, affidavits, and other relevant record evidence in a light most favorable to
plaintiff, the nonmoving party. 8 Applying that principle to this case, summary
disposition should not have been entered in favor of defendant. The dissent fails to
meaningfully apply this standard of review to the facts before the Court. I believe the
Court of Appeals properly reversed the trial court’s grant of summary disposition in favor
of defendant.

         CAVANAGH, J., joins the statement of MARILYN KELLY, J.

      YOUNG, C.J., and MARY BETH KELLY, J., would reverse the judgment of the Court
of Appeals.

         MARKMAN, J. (dissenting).

       I respectfully dissent. On a January evening, plaintiff, a lifelong resident of
Michigan, slipped and fell on ice on a walkway adjacent to defendant’s parking lot. On
the day of the fall, temperatures were at or below freezing, and, over the three days
preceding, sleet, ice, and snow had fallen. Although the parking lot surface was mostly
clear of snow, there was snow and ice on the ground, with the areas adjacent to the
parking lot clearly covered in snow and ice. The trial court granted defendant’s motion


7
  I respectfully decline the dissent’s invitation to opine on a limitless variety of factual
circumstances not present in this case in which a defendant would be entitled to summary
disposition.
8
    Radtke v Everett, 442 Mich 368, 374 (1993).
                                                                                          4

for summary disposition, concluding that the ice was “open and obvious,” but the Court
of Appeals reversed.

        I agree with the trial court that, considering the wintry conditions that existed at
the time of plaintiff’s fall, the potential for the walkway to be icy should have been well-
understood by plaintiff. Despite weather records indicating that daytime temperatures at
the time of the fall hovered at the freezing point, plaintiff testified that the day was
“sunny” and “unseasonably warm,” and that she did not see snow or ice on the ground
before she fell. Other observers testified that there was visible snow and ice covering the
grounds of the surrounding area. The Court of Appeals, citing the existence of
conflicting evidence, concluded that reasonable minds could differ regarding whether the
so-called “black ice” was open and obvious. I disagree. A lifelong resident of Michigan
should be well aware that during winter, when for several days snow has been falling,
and when temperatures have been and remain below freezing, ice may form on parking
lots. These factors are more than sufficient, in my judgment, to establish the presence of
potentially hazardous conditions that would have alerted an average person of ordinary
intelligence to discover and react to the “danger” upon casual inspection. Janson v
Sajewski Funeral Home, Inc, 486 Mich 934, 935 (2010). Because plaintiff should have
known that the walkway might be icy, such a condition can fairly be said to have been
“open and obvious.” For these reasons, I would reverse the Court of Appeals and
reinstate the grant of summary disposition for defendant.

      In Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 479 (2008), the Court of
Appeals observed,

              When applying the open and obvious doctrine to conditions
       involving the natural accumulation of ice and snow, our courts have
       progressively imputed knowledge regarding the existence of a condition as
       should reasonably be gleaned from all of the senses as well as one's
       common knowledge of weather hazards that occur in Michigan during the
       winter months. (emphasis added).
Rather than looking at what might be gleaned from “all of the senses,” along with matters
of “common knowledge of weather hazards,” Justice MARILYN KELLY prefers to focus
only upon the visual component of black ice. Under this approach, of course, black ice
will never be considered “open and obvious,” and property owners, to whom black ice is
                                                                                                               5

similarly invisible, will always be held liable for accidents arising from this condition. 9
Further, contrary to the analysis of Justice KELLY, “[t]he [“open and obvious”] test is
objective, and the inquiry is whether a reasonable person in the plaintiff’s position would
have foreseen the danger, not whether the particular plaintiff knew or should have known
that the condition was hazardous.” Slaughter, 281 Mich App at 479, citing Corey v
Davenport College (On Remand), 251 Mich App 1, 5 (2002). That “black ice” may have
obtained in this case does not alter the reality that as wintry conditions persist in this
state, a reasonable person will increasingly be alerted to the hazardousness of such
conditions, and will increasingly be assumed to have encountered conditions fairly
characterized as “open and obvious.”

       This case illustrates the ongoing confusion in the law of this state concerning the
“open and obvious” status of “black ice,” confusion that this Court has an obligation at
some point to dispel. Instead, once again, we fail to afford guidance and direction on this
matter, leaving in place conflicting and discordant decisions, and thereby enabling
defendants and plaintiffs to each rely upon different precedents in support of their
respective positions that “black ice” is or is not “open and obvious.” See, e.g., Janson,
486 Mich at 934; Pray v Baybest Ribs, LLC, 488 Mich 979 (2010); Powell v Save-A-Lot,
485 Mich 959 (2009); Kenny v Kaatz Funeral Home, Inc, 472 Mich 929 (2005);
Slaughter, 281 Mich App at 474; Kenny v Kaatz Funeral Home, Inc, 264 Mich App 99
(2004); and the instant case. As the highest court of this State — a state in which snow
and ice have sometimes been known to accumulate during winter months — it is our
responsibility to address the confusing and inconsistent approaches in our caselaw and to
clarify the rights and obligations of persons who must regularly confront these
conditions.

       ZAHRA, J., did not participate because he was on the Court of Appeals panel.




9
  Justice KELLY responds to this assertion by positing a hypothetical in which, apparently
like lemmings going over a cliff, one person after another slips and falls on the same
black ice. At some point, we are assured, a plaintiff who has witnessed preceding slips
and falls, and who has nonetheless proceeded onto the same black ice, “might” not
prevail in a lawsuit. The preposterousness of this hypothetical speaks eloquently as to the
black ice rule that the dissent would establish and for the consequences of her rule to
property owners within this state.



                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         May 20, 2011                        _________________________________________
       t0517                                                                 Clerk
