Michael Alioto v. Richard Astrein, 329646

Background

On Feb 9, 2013, Alioto slipped on ice in Willits Alley behind a building owned by the Astreins; the alley is owned by the City of Birmingham.
Alioto sued the Astreins and a tenant (Oliver’s Trendz), alleging ice formed from a downspout on the Astreins’ building created an unnatural, unavoidable hazard.
Oliver’s Trendz was later resolved by case evaluation; defendants moved for summary disposition under MCR 2.116(C)(10).
The trial court struck defendants’ initial motion as untimely, then granted leave to file; Alioto’s response brief was filed late and the court refused to consider it, though Alioto argued the same points at oral argument.
Trial court granted summary disposition for defendants, finding no genuine issue that defendants created or allowed the hazardous condition given (1) the City owned and maintained the alley and (2) the lease assigned maintenance duties to the tenant; the court also found the icy condition was open and obvious and avoidable.
Alioto appealed, challenging (a) the grant of summary disposition and (b) the court’s refusal to consider his untimely brief.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendants owed and breached a duty by discharging water that froze in a public alley	Astrein’s downspout created an unnatural, code-violative accumulation of ice making a public nuisance and thus breached their duty to maintain premises	No duty to maintain the City-owned alley; lease assigns maintenance to tenant; downspout complied with code and did not create actionable hazard	No duty/breach shown as matter of law; plaintiff failed to create genuine issue of material fact
Whether ice was open and obvious or had "special aspects" removing it from the open-and-obvious doctrine	The ice resulted from defendants’ conduct and was not necessarily open or avoidable	Ice (black ice) had indicia of hazard, was visible, and the alley allowed an alternate route around the ice	Ice was open and obvious with no special aspects; condition avoidable by alternate route
Whether plaintiff’s expert opinion created a factual dispute on causation/defect (code violation)	Expert engineer opined downspout violated code and created hazardous accumulation	Expert letter did not address openness, unreasonableness, or unavoidable nature; photos/deposition show visibility and avoidability	Expert evidence insufficient to raise genuine factual dispute on duty/breach or special aspects
Whether the trial court abused discretion by not considering plaintiff’s untimely response brief	Refusal was an unduly harsh sanction that impaired plaintiff’s ability to oppose the motion	Court acted within scheduling-order discretion; plaintiff had notice of consequences and argued orally at hearing	No abuse of discretion; any error harmless because oral argument and record did not alter outcome

Key Cases Cited

West v. General Motors Corp., 469 Mich 177 (sets standard for genuine issues of material fact at summary disposition)
Liparoto Construction, Inc. v. General Shale Brick, Inc., 284 Mich App 25 (court considers record in light most favorable to nonmoving party)
Buhalis v. Trinity Continuing Care Svcs., 296 Mich App 685 (elements required to survive summary disposition in negligence action)
Lugo v. Ameritech Corp., Inc., 464 Mich 512 (open-and-obvious doctrine is integral to premises-owner duty)
Grimes v. King, 311 Mich 399 (duty to maintain building to prevent injury to persons using adjoining public street)
Janson v. Sajewski Funeral Home, Inc., 486 Mich 934 (black ice may be open and obvious when indicia of hazard are present)
Slaughter v. Blarney Castle Oil Co., 281 Mich App 474 (discussion of indicia supporting open-and-obvious finding)
Allison v. AEW Capital Mgt, LLP, 481 Mich 419 (standard for granting summary disposition where record leaves no issue on which reasonable minds could differ)
Gavett v. City of Jackson, 109 Mich 408 (landowners may discharge roof water onto sidewalks; not per se liable when water flows to ground)