The Michigan Court of Appeals recently held that there was a genuine factual dispute regarding whether special circumstances imposed a duty on defendants to exercise reasonable care to diminish the hazards of ice and snow accumulation on the driveway on which a plaintiff was injured.
In November 2012, Gloria Freedland moved from an assisted living center into her daughter Karen Freedland’s home in Ann Arbor. Gloria suffered from dementia and Parkinson’s disease. Karen hired Interim Health Care to provide in-home care for Gloria. Plaintiff Joyanna Lymon worked for Interim as a nurse. From November 2012 to January 2013, Lymon provided care for Gloria.
On January 1, 2013, Lymon parked her car on the street outside the Freelands’ home because her vehicle previously “bottomed out” when she attempted to use the driveway. Lymon recalled that there had been rain the previous few days, and there was “slippery slush” on the driveway. She mentioned the driveway’s condition to Karen, who instructed Lymon to drive up the driveway to avoid the slippery conditions. Lymon explained, however, that her car couldn’t make it up the driveway. The plaintiff had to do a “penguin waddle” down the driveway when she left. Lymon informed the office manager at Interim that the Freedlands’ driveway was “getting bad.”
On January 4, Lymon arrived at the Freedlands’ house at about 6:00 p.m. She noticed that the driveway was far worse than it had been two days prior, covered in snow and ice. Lymon parked on the street and proceeded to walk up the driveway. About halfway up the drive, she slipped and fell. She felt a “numbing/tingling” sensation, but she managed to get up and continue to the house. Soon after arriving inside, Lymon started feeling “excruciating pain,” so she called Interim’s owner and her boyfriend, Desmond Jones. Jones attempted to move the plaintiff down the driveway to his vehicle in a sled but failed. They eventually had to call 911. Lymon had suffered a severely fractured tibia and fibula, which required surgery and months of rehabilitation. She was rendered unable to work. At the time of her deposition, she needed to use a walker to move.
In July 2013, the plaintiff filed suit, alleging that the defendants negligently maintained the driveway, which was unavoidable to traverse in the course of her employment.
Following discovery, the defendants moved for summary disposition in February 2014. They argued that the plaintiff’s claim failed because the danger posed by the driveway was open and obvious, and no special circumstances applied. The defendants further argued that the danger was not unavoidable because the plaintiff could have taken a different route to the house by walking on the yard.
In her response, Lymon argued that her claim was not barred by the open and obvious doctrine because there were special aspects related to the danger. Specifically, the plaintiff argued that the driveway presented an unreasonable risk of severe injury or death because it was very steep and covered in ice. She further argued that the danger was effectively unavoidable. Specifically, her employment compelled her to go into the house, and there was no safe path to the house. She maintained that she was presented with two dangerous paths to the house, and therefore the danger was unavoidable.
Following oral arguments, the trial court denied the defendants’ motion for summary disposition. The parties agreed to forego trial, pending the resolution of the appeal.
The appeals court applied the “well-established framework” that governs premises liability claims. It first cited its own precedent for the position that “as a matter of law . . . by its very nature, a snow covered surface presents an open and obvious danger because of the high probability that it may be slippery.”
The appeals court held that although the driveway constituted an open and obvious hazard, liability may still arise when special aspects of a condition render an open and obvious risk unreasonable. According to Michigan precedent, “special aspects” include when the danger is unreasonably dangerous or when the danger is effectively unavoidable because these conditions give rise to a uniquely high likelihood of harm or severity of harm if the risk is not avoided.
Lymon contended that the icy driveway contained a special aspect in that it presented a risk of high severity of harm, such that it amounted to an unreasonably dangerous condition.
The court held that although the slippery conditions coupled with the nature of the sloped driveway presented unsafe conditions, the Michigan Supreme Court has set “an extraordinarily high bar” for a condition to constitute an unreasonable risk of harm. In fact, it must present a “substantial risk of death or severe injury.” The court held that the driveway at issue did not meet this bar.
Regarding Lymon’s next argument that the hazardous driveway was effectively unavoidable, the appeals court cited the Michigan Supreme Court’s holding that an “effectively unavoidable” condition must be an “inherently dangerous hazard that a person is inescapably required to confront under the circumstances.”
The appeals court agreed with Lymon that the hazardous driveway was effectively unavoidable. The court reasoned that Lymon was compelled to enter the premises because she was a home health aide who could not abandon her patient. Gloria was an elderly patient with dementia and Parkinson’s disease, and the plaintiff was scheduled to care for her throughout the night. Abandoning Gloria was not an option, leaving the plaintiff compelled to traverse one of two equally hazardous pathways. On the one hand, Lymon could climb the steep snowy and icy driveway. On the other hand, she could have traversed the steep yard next to the driveway, but this route also contained slippery, hazardous conditions. The evidence left open a question of fact as to whether the yard provided a viable alternative route. Reasonable minds could differ as to whether traversing the yard provided a viable means by which the plaintiff could have effectively avoided the slippery conditions.
Accordingly, the court held that the trial court properly denied the defendants’ motion for summary disposition because there was a genuine issue of material fact as to whether the open and obvious driveway contained special aspects such that the defendants retained a duty to “exercise reasonable care to diminish the hazards of ice and snow accumulation.” Thus, the lower court’s decision was affirmed.
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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