Nick Zimmer v. Harbour Cove on the Lake Condominium Community
331545
| Mich. Ct. App. | Mar 14, 2017Background
- On Jan 20, 2014, plaintiff slipped and fell on ice on a condominium sidewalk while walking to a friend’s unit and broke his femur. Defendants: Harbour Cove (owner), Select Community Management (manager), Creation Keeper (snow contractor).
- Plaintiff alleged black ice formed in part because of defective drainage/misplaced gutter downspouts and improper snow piling; pleaded ordinary negligence, premises liability, and nuisance.
- Harbour Cove and Select moved for summary disposition under MCR 2.116(C)(10), arguing the hazard was open and obvious and the claim sounded in premises liability. Creation Keeper moved arguing no duty or breach.
- Trial court concluded the claims against Harbour Cove and Select were premises-liability claims barred by the open-and-obvious doctrine; reserved nuisance and Creation Keeper issues, later dismissed those too and denied reconsideration.
- Plaintiff appealed; the Court of Appeals reviewed de novo whether genuine issues of material fact existed and whether the open-and-obvious doctrine or other doctrines prevented recovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Harbour Cove/Select can be liable in ordinary negligence separate from premises liability | Their active conduct (misplaced downspouts, snow piling) created the dangerous condition, giving rise to ordinary negligence | The facts allege a dangerous condition on the land; liability, if any, arises only under premises liability rules | Dismissed: claim is exclusively premises liability; ordinary negligence not available here (court treated plaintiff as invitee) |
| Whether Creation Keeper owed and breached a duty in snow removal | Creation Keeper improperly piled snow near downspouts, contributing to ice, breaching ordinary-care duty | No evidence Creation Keeper departed from ordinary snow-removal practices; no genuine factual dispute of breach | Dismissed: duty may exist but plaintiff failed to show a factual dispute on breach |
| Whether the icy condition (black ice) was open and obvious | Black ice was invisible; allegedly not open and obvious | Wintery conditions, visible snow, and time/facts would alert an average person—therefore open and obvious | Dismissed: ice was open and obvious given winter conditions and visible snow; no special aspect made it unreasonably dangerous |
| Whether a nuisance claim (public/private) survived dismissal | Plaintiff invoked nuisance (citing Betts) based on accumulation of ice/snow | Michigan law does not support a public-nuisance claim for ordinary ice/snow accumulation; plaintiff showed no distinct harm different than the public | Abandoned/ dismissed: plaintiff failed to brief or show distinct harm; nuisance claim not sustained |
Key Cases Cited
- Clark v. Dalman, 379 Mich. 251 (1967) (duty analysis when plaintiff is invitee/licensee; distinguishing active conduct vs. dangerous condition)
- Buhalis v. Trinity Continuing Care Servs., 296 Mich. App. 685 (2012) (premises liability governs even when possessor allegedly created the hazardous condition)
- Lugo v. Ameritech Corp., Inc., 464 Mich. 512 (2001) (premises possessor’s duty to invitees; open-and-obvious exception)
- Hoffner v. Lanctoe, 492 Mich. 450 (2012) (open-and-obvious dangers generally relieve possessor of duty absent special aspects)
- Slaughter v. Blarney Castle Oil Co., 281 Mich. App. 474 (2008) (black ice may be open and obvious when other indicia of danger exist)
- Laier v. Kitchen, 266 Mich. App. 482 (2005) (distinguishing liability for dangerous instrumentalities/active conduct from premises-condition cases)
- Loweke v. Ann Arbor Ceiling & Partition Co., LLC, 489 Mich. 157 (2011) (elements of negligence; duty arising from undertakings)
- Bailey v. Schaaf, 494 Mich. 595 (2013) (no general duty to aid absent special relationship)
- Peterson Novelties, Inc. v. City of Berkley, 259 Mich. App. 1 (2003) (appellate briefing rules: issues inadequately briefed are abandoned)
- Joyce v. Rubin, 249 Mich. App. 231 (2002) (objective standard for open-and-obvious danger)
- Janson v. Sajewski Funeral Home, 486 Mich. 934 (2010) (summary affirmance cited for proposition that open-and-obvious dangers can support dismissal)