Gary Kalosis v. Woods of Livonia Association
329331
| Mich. Ct. App. | Mar 16, 2017Background
- On Jan 28, 2013 Gary Kalosis slipped on black ice while entering his car parked beneath an open-sided carport at his condominium complex; snow had fallen the day before and the property had been plowed and salted.
- Plaintiff wore nonskid shoes and admitted he saw snow/ice outside his unit before leaving but did not look at the ground under the carport before falling; photos show snow/slush and some salt near the parking spot.
- Woods of Livonia Association owned/managed the property; Woods had gutters installed in 2010 along the front (but not the back) of the carports to prevent snow/water buildup where residents enter.
- Kearns Brothers contracted with Woods to install gutters on the front sides; Allied Gutter (subcontractor) performed the installation at Kearns’ and Woods’ direction.
- Apartment Services contracted with Woods to plow and salt the premises; records showed salting on Jan 27 and again the morning of Jan 28.
- Trial court granted summary disposition (MCR 2.116(C)(10)) for all defendants; plaintiff appealed. Court of Appeals affirmed for all defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Woods was liable for the icy condition under premises liability / open-and-obvious doctrine | Kalosis: black ice under carport was not open and obvious; Woods created/allowed condition and had notice | Woods: winter conditions and visible snow would alert an average person; hazard was open and obvious | Affirmed for Woods; ice was open and obvious given wintry conditions and no special aspects made it unreasonably dangerous |
| Whether Kearns was negligent for not recommending gutters on the back side (causation/duty) | Kalosis: Kearns should have advised installing gutters on backs of carports; absence caused pooling and freezing | Kearns: hired only to install gutters on the front as requested; no duty to provide broader recommendation; no evidence to rebut | Affirmed for Kearns; no genuine issue that Kearns’ role was limited and plaintiff failed to show causation or duty beyond contract |
| Whether Apartment Services owed a separate common-law duty (independent of contract) for salting | Kalosis: Apartment Services failed to properly salt carport area and breached duty of care | Apartment Services: duties arose from contract with Woods; plaintiff not a contract third‑party beneficiary and no independent common-law duty or creation of new hazard | Affirmed for Apartment Services; no duty separate and distinct from contractual obligations and no evidence it created the hazard |
| Whether Allied (subcontractor) was negligent in installing gutters such that they caused the ice | Kalosis: Allied may have installed gutters where not needed or improperly, contributing to ice | Allied: acted as subcontractor and installed gutters as directed; no evidence of defective installation or contribution to ice formation | Affirmed for Allied; no evidence Allied deviated from instructions or caused the condition |
Key Cases Cited
- Hoffner v. Lanctoe, 492 Mich 450 (Mich. 2012) (premises possessor owes duty to protect invitees except for open and obvious dangers; special aspects exception)
- Slaughter v. Blarney Castle Oil Co., 281 Mich App 474 (Mich. Ct. App. 2008) (black ice is typically invisible; open-and-obvious doctrine requires visibility or other indicia)
- Janson v. Sajewski Funeral Home, Inc., 486 Mich 934 (Mich. 2010) (wintry conditions can make ice discoverable on casual inspection)
- Loweke v. Ann Arbor Ceiling & Partition Co., LLC, 489 Mich 157 (Mich. 2011) (duty analysis; a defendant may have tort duty arising from actions beyond contract)
- Fultz v. Union-Commerce Assoc., 470 Mich 460 (Mich. 2004) (no tort duty based solely on breach of contract; must be duty separate and distinct from contract)
- Lugo v. Ameritech Corp., Inc., 464 Mich 512 (Mich. 2001) (discusses open-and-obvious rule and premises liability)