                           STATE OF MICHIGAN

                            COURT OF APPEALS



ESTATE OF LEE F. HARTIN, JR., by DAWN M.                              UNPUBLISHED
SIMONS, Personal Representative,                                      December 14, 2017

               Plaintiff-Appellant,

GALLAGHER BASSETT SERVICES, INC.,

               Intervening-Plaintiff,

v                                                                     No. 337216
                                                                      Jackson Circuit Court
VISTA GRANDE VILLA,                                                   LC No. 15-003245-NO

               Defendant-Appellee.


Before: MARKEY, P.J., and HOEKSTRA and RONAYNE KRAUSE, JJ.

PER CURIAM.

       In this premises liability action, plaintiff appeals as of right the trial court order granting
summary disposition to defendant under MCR 2.116(C)(10). Because the ice in defendant’s
parking lot was open and obvious and the ice was not effectively unavoidable, we affirm.

        Defendant Vista Grande Villa is a retirement community in Jackson, Michigan. In
January of 2014, decedent Lee F. Hartin, Jr. was employed by a company called Sodexo, which
provided food services for defendant. Hartin worked for Sodexo in defendant’s kitchen. In the
late afternoon on January 16, 2014, Hartin exited defendant’s building through the employee
door near the loading dock and proceeded to walk into the parking lot where he slipped and fell
on ice. As a result of his fall, Hartin broke his ankle, for which he later underwent surgery.
Following surgery, he suffered a pulmonary embolism, which caused his death.

       On November 25, 2015, Hartin’s sister, Dawn Simons, acting as personal representative
of Hartin’s estate, filed the current lawsuit against defendant. The complaint alleged that Hartin
“slipped on a hidden patch of black ice” while walking from defendant’s building to his car in
the employee parking lot. According to the complaint, the black ice constituted an unreasonably
dangerous condition and defendant acted negligently by allowing ice to accumulate, by failing to
warn Hartin of the danger, and by failing to take reasonable measures, in a reasonable time, to
remove the hazard. Defendant moved for summary disposition under MCR 2.116(C)(10).



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        The trial court granted defendant’s motion for summary disposition, concluding that the
ice was an open and obvious danger in light of indicia of hazardous conditions, including
freezing temperatures and snow on the ground. Based on the availability of alternate exits from
the building, the trial court also rejected plaintiff’s argument that the ice was effectively
unavoidable. Plaintiff moved the trial court for reconsideration, which the trial court denied.
Plaintiff now appeals as of right.

       On appeal, plaintiff contends that the trial court erred by granting defendant’s motion for
summary disposition. According to plaintiff, questions of fact remain regarding whether the
black ice can be considered an open and obvious hazard because the ice was not visible to
individuals at the scene immediately after Hartin’s fall and the evidence was conflicting in terms
of the weather conditions. Additionally, plaintiff maintains that, even if the ice was open and
obvious, it was effectively unavoidable because plaintiff was an employee using the designated
employee door on his way to the employee parking lot.

       We review de novo a trial court’s decision to grant a motion for summary disposition.
Miller v Purcell, 246 Mich App 244, 246; 631 NW2d 760 (2001). A motion under MCR
2.116(C)(10) tests the factual support for a claim, and the motion is properly granted if there is
no genuine issue as to any material fact. Bagby v Detroit Edison Co, 308 Mich App 488, 490;
865 NW2d 59 (2014). “When ruling on a motion brought under MCR 2.116(C)(10), the court
must consider the affidavits, pleadings, depositions, admissions, and other documentary evidence
submitted by the parties in the light most favorable to the party opposing the motion.” The Cadle
Co v City of Kentwood, 285 Mich App 240, 247; 776 NW2d 145 (2009). “A genuine issue of
material fact exists when reasonable minds could differ on a material issue.” Braverman v
Granger, 303 Mich App 587, 596; 844 NW2d 485 (2014).

        “In a premises liability action, a plaintiff 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.” Benton v Dart
Props, Inc, 270 Mich App 437, 440; 715 NW2d 335 (2006). “[T]he existence of a legal duty is a
question of law for the court to decide.” Buhalis v Trinity Continuing Care Sers, 296 Mich App
685, 693; 822 NW2d 254 (2012) (citation and quotation marks omitted). “In general, a premises
possessor owes a duty to an invitee to exercise reasonable care to protect the invitee from an
unreasonable risk of harm caused by a dangerous condition on the land.” Lugo v Ameritech
Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). A landowner breaches this duty of care
“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 v Lanctoe, 492 Mich 450, 460; 821 NW2d 88 (2012).

        Generally, “a landowner does not have to protect invitees from open and obvious
dangers, because such dangers, by their nature, apprise an invitee of the potential hazard, which
the invitee may then take reasonable measures to avoid.” Bullard v Oakwood Annapolis Hosp,
308 Mich App 403, 409; 864 NW2d 591 (2014) (citation and quotation marks omitted).
“Whether a danger is open and obvious depends on whether it is reasonable to expect that an
average person with ordinary intelligence would have discovered it upon casual inspection.”
Hoffner, 492 Mich at 461. “The 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

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knew or should have known that the condition was hazardous.” Slaughter v Blarney Castle Oil
Co, 281 Mich App 474, 479; 760 NW2d 287 (2008).

        “[W]intry conditions, like any other condition on the premises, may be deemed open and
obvious.” Hoffner, 492 Mich at 464. In deciding whether wintry conditions are open and
obvious, the inquiry is “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 464. Even black ice, which is transparent and nearly
invisible, may be considered an open and obvious danger, provided that there are “indicia of a
potentially hazardous condition.” Janson v Sajewski Funeral Home, Inc, 486 Mich 934, 935;
782 NW2d 201 (2010); Slaughter, 281 Mich App at 483. Indicia of potentially hazardous
conditions include, among others, below freezing temperatures, snow on the ground, and
precipitation, before or during, a plaintiff’s fall. See, e.g., Cole v Henry Ford Health Sys, 497
Mich 881; 854 NW2d 717 (2014); Janson, 486 Mich at 935. Ultimately, an individual will be
“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.” Slaughter, 281 Mich App at 479.

        While it is generally true that a premises possessor is not required to protect an invitee
from open and obvious dangers, this rule does not apply if the hazard has “special aspects” that
make even an open and obvious risk unreasonable. Hoffner, 492 Mich at 461; Lugo, 464 Mich at
517. One instance in which a special aspect may give rise to liability is when the danger is
effectively unavoidable. Id. at 463. “[T]he standard for ‘effective unavoidability’ is that a
person, for all practical purposes, must be required or compelled to confront a dangerous hazard.
As a parallel conclusion, situations in which a person has a choice whether to confront a hazard
cannot truly be unavoidable, or even effectively so.” Id. at 469 (emphasis in Hoffner). “Put
simply, the plaintiff must be ‘effectively trapped’ by the hazard.” Bullard, 308 Mich App at 412.
“The mere fact that a plaintiff’s employment might involve facing an open and obvious hazard
does not make the open and obvious hazard effectively unavoidable.” Id.

        In this case, Hartin was not deposed before his death, and there is little in the record
regarding Hartin’s description of his fall. According to medical records, Hartin told medical
personnel that he “fell down on ice.” See MRE 804(4). Two individuals who worked in the
building—Demetrus Heard (a Sodexo employee) and Robert Wight (a maintenance worker for
defendant)—went to assist Hartin not long after his fall. Neither Heard nor Wight recalled
seeing any ice on the ground where Hartin fell. Despite the paucity of evidence, we will assume
for purposes of this appeal that reasonable minds could conclude that Hartin fell on ice and that
the ice was black ice.

        However, even if the ice was apparently difficult to see, the weather conditions at the
time of Hartin’s fall demonstrate that there were other indicia of the hazardous condition. In
particular, the accident occurred in January, in Michigan; and, Hartin was a longtime resident of
Michigan, who would be familiar with the formation of ice in winter. See Slaughter, 281 Mich
App at 480. According to weather data submitted by the parties, on the date of Hartin’s fall,




                                               -3-
Jackson had a low temperature of 16.1 degrees, a high of 27.1, and a mean temperature of 21.7
degrees.1 Heard and Simons confirmed that it was “cold,” and Wight could not remember a
specific temperature but he thought it was in the “low 30s,” “right around 32 degrees.” There
had also been snow in Jackson during the week of Hartin’s fall, and snow remained on the
ground. Heard—who was present at the scene where Hartin fell—testified that, although he
could not remember if it was actively snowing when he went outside to assist Hartin, there was
“snow on the ground.” More generally, Simons confirmed that it had snowed in Jackson during
the days before Hartin’s fall and that there was still snow on the ground.2 These wintery
conditions, including below freezing temperatures coupled with snow on the ground, would alert
an average user of ordinary intelligence to the potentially icy condition in the parking lot. See
Cole, 497 Mich 881; Janson, 486 Mich at 935. Thus, the danger of black ice was open and
obvious.

        In contrast, in attempting to create a material question of fact, plaintiff relies heavily on
Wight’s testimony to the effect that bad weather “came up fast” on the afternoon of Hartin’s fall.
However, Wight did not contradict the evidence of freezing temperatures and snow on the
ground; and, his testimony does not create a material question of fact. For the most part, Wight
stated that he did not recall the weather. He did not remember if it snowed in the days before
Hartin’s fall, he did not recall if there was snow or ice on the ground, and he did not recall if it
was actively snowing when he first went outside. At most, insofar as Wight testified that some


1
  On appeal, plaintiff claims that the weather data should not be considered because the data
constitutes inadmissible hearsay for which no foundation was laid. This argument is without
merit. First, both parties submitted weather data in connection with their summary disposition
arguments. Having submitted weather data to the trial court, plaintiff cannot claim on appeal
that the trial court’s consideration of weather data was improper. See Genna v Jackson, 286
Mich App 413, 422; 781 NW2d 124 (2009) (“[E]rror requiring reversal cannot be error to which
the aggrieved party contributed by plan or negligence.”). Second, with a proper foundation,
weather records would be admissible at trial. See MRE 803(6); MCL 600.2124; Hart v Walker,
100 Mich 406, 410; 59 NW 174 (1894). As long as there is “a plausible basis” for the admission
of the weather records, the trial court did not err by considering the weather data incident to
deciding a motion for summary disposition. See Barnard Mfg Co, Inc v Gates Performance
Engg, Inc, 285 Mich App 362, 373; 775 NW2d 618 (2009). See also MCR 2.116(G)(6). In
contrast, we will not consider defendant’s newspaper article regarding the road conditions in
Jackson on the day of Hartin’s fall. Newspapers articles are typically inadmissible hearsay,
Baker v Gen Motors Corp, 420 Mich 463, 511; 363 NW2d 602 (1984), and defendant has
offered no plausible basis for the admission of the article. Because the newspaper article is
inadmissible hearsay, it may not be considered when deciding a motion for summary disposition.
See Maiden v Rozwood, 461 Mich 109, 125; 597 NW2d 817 (1999).
2
  Plaintiff argues on appeal that Simons’s deposition testimony should not be considered
because, although she was in Jackson on the day of Hartin’s fall, she was not at defendant’s
facility on that date. This concern goes to the weight of Simons’s testimony, not its
admissibility. See Ignaszak v McCray Refrigerator Co, 221 Mich 10, 16; 190 NW 756 (1922).
And, the trial court did not err by considering this evidence.


                                                -4-
salting was done after Hartin’s fall because bad weather conditions “came up fast,” his testimony
could suggest that the weather may have worsened shortly after Hartin’s fall.3 Nevertheless,
Wight did not dispute Heard’s and Simons’s testimony that it snowed in the days before Hartin’s
fall and Wight did not contradict Heard’s testimony that there was snow on the ground at the
time of Hartin’s fall. Whether or not the weather worsened shortly after Hartin’s fall, it remains
true that, when exiting the building, Hartin confronted indicia of hazardous weather conditions,
including below freezing temperatures, snowfall in the days before his fall, and snow on the
ground at defendant’s facility. Given these indicia of hazardous conditions in the parking lot, the
danger of black ice was open and obvious. See Cole, 497 Mich 881; Janson, 486 Mich at 935.

         Finally, there is no merit to plaintiff’s assertion that the black ice was effectively
unavoidable. According to plaintiff, the ice was effectively unavoidable because, as an
employee, Hartin used the designated employee door to exit the building on his way to the
designated employee parking lot. While it is true that Hartin visited the building as an employee,
his employee status, on its own, does not render the open and obvious hazard effectively
unavoidable. Bullard, 308 Mich App at 412. The correct inquiry is whether Hartin was, for all
practical purposes, required or compelled to confront the ice. See Hoffner, 492 Mich at 463.
Regardless of Hartin’s employee status, it is uncontested that the building contains numerous
doors. And, while there is evidence that the employees typically used the back door to enter and
exit, there is no evidence that they were forbidden from using alternative doors or that they were
compelled to confront icy conditions outside the employee door. To the contrary, Heard testified
that, if it was slippery or dangerous outside the employee door, he could, as an employee, use a
different exit or talk to someone at the front desk about clearing the area.4 Wight confirmed that


3
  It is somewhat unclear from Wight’s testimony whether the conditions of which he spoke
“came up fast” before or after Wight’s fall. If before, the worsening winter weather would only
provide further indicia of hazardous conditions.
4
  To the extent plaintiff claims that, even if Hartin had used another door, he would have
confronted the patch of black ice, this argument is unsupported and undeveloped. In the trial
court, plaintiff offered pictures, taken in September of 2016, which show water in the parking
lot, not far from the employee entrance near the loading dock. However, nothing in the
photographs suggests that Hartin would have encountered an icy hazard, or any hazard, had he
exited the building through a different door. Thus, to extent plaintiff relies on Lymon v
Freedland, 314 Mich App 746, 762-764; 887 NW2d 456 (2016), this reliance is misplaced
because that case involved a situation in which all routes to the home were covered in ice and
snow, meaning that the plaintiff had no choice but to confront an open and obvious danger
because she did not have the option of abandoning her elderly patient. In contrast, there is no
evidence of ice or other hazards on the routes from other exits to Hartin’s vehicle. And, in any
event, regardless of what door he used, according to Heard’s testimony, employees had the
ability to talk to someone in the building about addressing dangerous or slippery conditions
outside. Cf. Bullard, 308 Mich App at 413 (“[H]e had the option of speaking with his
employer . . . regarding the conditions on the roof.”). Insofar as plaintiff briefly asserts that
additional discovery is necessary regarding the photographs and water in the parking lot, it does
not appear that further discovery has a reasonable chance of uncovering support for plaintiff’s


                                                -5-
the maintenance crew salted “problem areas” in response to complaints. Given the availability
of other options, including alternative routes and the ability to speak with someone about
dangerous conditions, Hartin was not effectively trapped by the hazard. See Bullard, 308 Mich
App at 413; Corey v Davenport Coll of Bus, 251 Mich App 1, 6; 649 NW2d 392 (2002). There
was nothing inevitable or inescapable about Hartin’s decision to exit the employee door and
confront the black ice, and thus the black ice cannot be considered effectively unavoidable. See
Hoffner, 492 Mich at 463.

       Because the black ice was open and obvious and not effectively unavoidable, the trial
court did not err by granting defendant’s motion for summary disposition under MCR
2.116(C)(10).

       Affirmed. Having prevailed in full, defendant may tax costs pursuant to MCR 7.219.



                                                           /s/ Jane E. Markey
                                                           /s/ Joel P. Hoekstra
                                                           /s/ Amy Ronayne Krause




claims, and thus summary disposition was appropriate. See Peterson Novelties, Inc v City of
Berkley, 259 Mich App 1, 25; 672 NW2d 351 (2003).


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