Michigan Appeals Court Finds Black Ice on Which Plaintiff Slipped Was “Open and Obvious”

The Michigan Court of Appeals recently ruled that the black ice on which a plaintiff was injured was open and obvious, triggering no legal duty for the defendants to exercise reasonable care and rendering summary judgment appropriate.

In February 2011, plaintiff Trawmisha Toney visited Eastland Mall in Harper Woods, which is owned and operated by the defendants. While traversing the parking lot, Toney slipped on ice and was injured. She sued for premises liability, alleging the defendants had violated their duty to warn her of a dangerous situation on their property — specifically, black ice.

Toney’s deposition testimony indicated that the day of the incident was a cold and dark winter day. Furthermore, the ice on which she slipped was not visible before she slipped or immediately after she fell. She indicated the ice was only visible after security guards threw salt and she could see it slide around. The security guards, she testified, almost fell themselves. Soon after the fall, Toney testified that she saw another woman slip and fall. She stated that the fall caused her neck and back pain, as well as memory difficulty.

The defendants moved for summary judgment, arguing that the ice presented an open and obvious danger with no special circumstances. The trial court granted the motion, and Toney appealed.

In affirming, the Michigan Court of Appeals first laid out the relevant legal rules and standards. In a premises liability action, the plaintiff must prove the general 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. Typically, a property owner owes a duty to exercise reasonable care to protect those invited to the land (invitees) from unreasonable risks of harm caused by dangerous conditions. There is no obligation, however, to warn someone of dangers so obvious and apparent that they are expected to discover them and protect themselves.

Whether a danger is open and obvious depends on whether it is reasonable to expect an average person with ordinary intelligence to discover it upon casual inspection. In considering this doctrine with regard to ice and snow, Michigan courts have “progressively imputed knowledge regarding the existence of a condition as should reasonably be gleaned from all senses as well as one’s common knowledge of weather hazards that occur in Michigan during winter months.” The Michigan intermediate court has therefore held that hazards presented by snow and ice in Michigan winters are typically open and obvious. The court, however, has made an exception for black ice, reasoning that its definition as invisible or nearly invisible is “inherently inconsistent with the open and obvious danger doctrine.”

In support of their motion, the defendants presented Toney’s deposition testimony and a photograph of the parking lot shortly after the fall. Toney testified that the ice was invisible but also stated that it was winter. Toney admitted that the photograph showed clearly visible ice, but she testified that the lighting and angle must have been different because she could not see the ice when she fell. While Toney testified that there was no snow in the parking lot on the day of her fall, the testimony was undermined by the photograph.

The court reasoned that given it was winter in Michigan, it was cold, and there was snow on the ground, Toney was presented with a situation from which it could “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” that there was likely black ice in the parking lot. Thus, the plaintiff did not create a sufficient factual dispute regarding the black ice to withstand summary judgment.

Toney additionally argued that the icy handicapped parking area created a special aspect rendering the parking lot unreasonably dangerous. The appeals court disagreed, noting that it already rejected this argument in a previous case:  “[t]he fact that the ice patch on which plaintiff fell was located near a handicapped parking space did not give rise to a uniquely high likelihood of harm or severity of harm.” The court reasoned that the potential to slip on an icy and slippery parking lot did not “constitute a uniquely high likelihood or severity of harm and remove the condition from the open and obvious danger doctrine.” Similarly, the court found that Toney’s argument that the black ice being in the handicap parking area created an unreasonably dangerous situation lacked merit.

The appeals court concluded that since the condition of the parking lot was open and obvious, and no special aspect existed to render the condition unreasonably dangerous, the trial court properly granted the defendants’ motion for summary judgment.

Personal injury lawyer Kelly Neumann at the Neumann Law Group represents victims of accidents 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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Michigan Appeals Court Holds Plaintiff Failed to Demonstrate Defendant Had Sufficient Notice of Sidewalk Defect, Neumann Law Group, April 20, 2016.

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