A plaintiff was injured when he slipped and fell on black ice while entering his car, which was parked underneath a carport at his condominium complex. He filed suit against (1) the condominium association; (2) a company that had contracted with the association approximately three years earlier to install gutters along the front side of the carport; (3) the company that actually installed the gutters pursuant to a subcontract with the contractor; and (4) the company that had contracted to provide snow and ice removal services for the condominium complex. The trial court entered separate orders granting summary disposition in favor of each defendant, pursuant to MCR 2.116(C)(10). The plaintiff appealed, and the Michigan Court of Appeals affirmed.
On appeal, the plaintiff contended that the trial court improperly granted summary disposition in favor of the association because the ice on which he fell was not open and obvious, and the association cannot avoid liability for a condition that it created or permitted to exist because it had actual or constructive notice of such a condition.
The appeals court disagreed, holding the trial court properly granted summary disposition because there was no genuine issue of material fact as to whether the ice was open and obvious.
Specifically, the court reasoned that the temperature was below freezing on the previous day and during the night before the plaintiff fell on January 28, 2013. The temperature had just begun to rise above freezing earlier in the morning before the plaintiff, a life-long Michigan resident, approached his vehicle at approximately 10:30 a.m. Consistent with the clear presence of snow in the photographs taken immediately after the incident, weather reports indicated that approximately two inches of snow had fallen on the previous day.
Likewise, the plaintiff testified at his deposition that he looked outside before he left and saw that “[i]t was wet and [sic] icy snow. There was snow in the driveway.” Significantly, he testified that he decided to wear “nonskid” shoes that are “supposed to be safe for walking in oil, ice, or snow,” specifically based on his observations of the wintery conditions outside, and he wore a coat and gloves because he realized that it was cold outside. The plaintiff also testified that snow on the pavement was in his field of vision as he approached the carport and looked in the direction of his car.
The appeals court concluded that it had “no doubt that these conditions would have alerted an average user of ordinary intelligence to discover, upon casual inspection, a potentially hazardous situation from ice or melting and refreezing snow underneath the open-air carport.”
Since the record clearly demonstrated that the icy condition on which the plaintiff fell was neither unreasonably dangerous nor effectively unavoidable, the trial court properly granted summary disposition in favor of the association based on the open and obvious doctrine.
Next, the plaintiff contended that the trial court improperly granted summary disposition in favor of the contractor, based on a lack of causation in light of an employee of the condominium’s testimony. The plaintiff argued that the contractor was negligent when it failed to advise the association to install gutters along the back sides of the carports. He theorized that the absence of gutters along the back side allowed snow and water to fall off the roof in the back of his carport and drain toward the front, resulting in an accumulation of water underneath the carport, where it then froze.
The appeals court rejected this argument, reasoning that the unrebutted evidence in the record indicated that the contractor was hired by the association solely for the purpose of installing gutters on the front sides of the carports. The employee specifically explained that the association never requested or inquired about the installation of gutters at the back of the carports. Since the plaintiff did not present any evidence that established a genuine issue of material fact regarding whether the contractor’s role was more expansive than the employee’s description, summary disposition for the contractor was proper.
Next, the plaintiff contended that the trial court improperly granted summary disposition in favor of the snow and ice removal service because it had a duty to salt the carport area pursuant to its contract with the association, and it owed a separate common-law duty to the plaintiff to use ordinary care when it performed that task.
The appeals court rejected this argument, reasoning that there was no evidence that the removal service created the condition that caused the plaintiff’s fall, and the plaintiff did not allege or identify the existence of a common-law duty owed by the removal service to him, separate and distinct from its contractual obligations to the association. Thus, the trial court did not err in granting this defendant’s motion for summary disposition.
Lastly, the plaintiff argued that the trial court improperly granted summary disposition in favor of the subcontractor because there were genuine issues of material fact as to whether it properly installed the gutters on the carport. Specifically, the plaintiff contended that the subcontractor may be liable for his injuries under a theory of negligence because it neglected to install gutters “where they were truly needed.”
The appeals court again rejected this argument. It held that since the subcontractor’s only involvement was limited to installing the gutters as specified in its subcontract with the contractor, and there was no evidence that it failed to install the gutters in accordance with that contract, or that the installed gutters even contributed to the formation of the ice that caused the plaintiff’s fall, the trial court properly granted its motion for summary disposition.
For these reasons, the appeals court held the trial court properly granted summary disposition in favor of all of the defendants.
The premises liability attorneys at the Neumann Law Group represent injured people throughout Michigan from offices in Traverse City and Grand Rapids. Call us at (231) 463-0122 or at (616) 717-5666 for a free consultation.
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