Lead Opinion
I. NATURE OF THE CASE
Undеr Michigan law, a premises possessor generally owes no duty to an invitee to warn of or protect from open and obvious dangers, such as ice and snow, absent special aspects. We hold that, for the reasons set forth below, the icy condition that plaintiff encountered was open and obvious. We also hold that, as a matter of law, if a premises possessor provides a clear means of ingress and egress and an invitee strays off the normal pathway onto an area that is obviously not reserved for that purpose, the landowner has not breached its duty of “reasonable care.” When a pathway for normal access is made avаilable to an invitee and the dangers of straying off the clear path are, as here, open and obvious, the premise possessor owes no duty to warn or protect such an invitee.
II. FACTS
In January 2008, plaintiff, Mary Buhalis, slipped and fell on ice on a patio near the front entrance of a building owned by defendant, Trinity Continuing Care Services.
Joshua Shock, the maintenance technician for the nursing home, testified that part of his job is to remove snow and place salt on the walkways and entrance areas of the building. Mr. Shock testified that the sidewalks and main entrance walkway were clear of ice and snow when Ms. Buhalis fell. He further testified that he never salted or removed ice from the patios and that generally they were not maintained during the winter months. According to Mr. Shock, the large awning over the main walkway “performed as designed, in directing rain and melting snow and ice away from the covered walkway and entrance to the building, and onto the uncovered cement patio areas adjacent to each side of the awning.” Mr. Shock recalled that on the day Ms. Buhalis fell, there was visible ice on the patio in the area where plaintiff slipped. According to Ms. Buhalis, she was aware that ice and snow could accumulate on the patio, that the awning caused water to fall onto the patio where it could freeze and thaw, and that Trinity had posted a sign that cautioned, “SIDEWALKS, PARKING LOTS AND COMMON AREAS MAY BE WET, SNOWCOVERED [sic] AND SLIPPERY,” but Ms. Buhalis maintained that she did not see any ice on the patio before she slipped. However, Ms. Buhalis recalled that after she fell she saw that she had slipped on a patch of ice.
Ms. Buhalis sued Trinity, alleging various claims of liability. In Docket No. 296535, Trinity appeals by leave granted
III. ORDINARY NEGLIGENCE
We agree with Trinity that the trial court erred when it denied its motion for summary disposition on Ms. Buhalis’s first amended complaint, in which she asserted that Trinity should be held liable for ordinary negligence. This Court reviews de novo a trial court’s ruling on a motion for summary disposition. Ligon v Detroit,
Here, Ms. Buhalis alleged that she was injured when she slippеd on ice and fell; that is, she alleged that she was injured when she encountered a dangerous condition on Trinity’s premises. Though she asserted that Trinity’s employees caused the dangerous condition at issue, this allegation does not transform the claim into one for ordinary negligence. Id. Rather, she clearly pleaded a claim founded on premises liability. Therefore, Ms. Buhalis’s negligence claim is a common-law premises liability claim and, to the extent that she purported to allege an ordinary negligence claim in addition to her premises liability claim, the trial court should have dismissed that claim.
TV. OPEN AND OBVIOUS DANGER AND DUTY OF REASONABLE CARE
On cross-appeal in Docket No. 296535, Ms. Buhalis argues that the trial court errеd by granting Trinity’s first motion for summary disposition regarding plaintiffs premises liability claim because Ms. Buhalis contends the ice on which she fell was not open and obvious.
“In a premises liability action, a plaintiff must prove the 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 plaintiffs injury, and (4) the plaintiff suffered damages.” Benton v Dart Props Inc,
“Generally, the hazard presented by snow and ice is open and obvious, and the landowner has no duty to warn of or remove the hazard.” Royce v Chatwell Club Apartments,
In Slaughter v Blarney Castle Oil Co,
Here, Ms. Buhalis failed to establish a genuine issue of material fact with regard to whether the ice was open and obvious because, even if the ice could be fairly characterized as clear, Ms. Buhalis knew of the danger of ice on the patio and other indicia of a potentially icy condition would have alerted an average user of ordinary intelligence to discover the danger on casual inspection.
Evidence showed that it rained and snowed the day before plaintiffs fall. Though temperatures rose during the night before the incident, Ms. Buhalis admitted that after she fell she could see the patch of ice on which she slipped, and Mr. Shock testified that when he went to move Ms. Buhalis’s trike after her fall the ice on the patio was evident. Further, at the time of her fall, Ms. Buhalis had lived through 85 Michigan winters. She testified that she knew that even when sidewalks are clear, there is danger of “black ice” on the ground. Ms. Buhalis also testified that she knew that water fell from the awning onto the patio and that ice may develop from a freeze-thaw cycle. She further stated that she had chosen to park her trike away from the awning because she knew there could be ice present from water runoff. Ms. Buhalis was also specifically aware of the caution sign warning that the common areas could be wet, snow-covered, and slippery, but she knowingly chose not to heed the warning and, thus, voluntarily exposed herself to the hazard.
We further observe that there is no question of fact with regard to whether Trinity exercised reasonable care to protect invitees from the dangers of ice and snow. The degree of care required of a premises possessor is to “take reasonable measures within a reasonable period of time after the accumulation of snow and ice to diminish the hazard of injury to [the plaintiff, but] only if there is some special aspect that makes such accumulation unreasonably dangerous.” Mann v Shusteric Enterprises, Inc,
Reasonable minds could not disagree that Trinity exercised “reasonable care.” Trinity provided a size-able, fully cleared walkway to its main entrance, covered by a large awning to protect the walkway from the elements. Mr. Shock also testified that all sidewalks surrounding the building were clear and free of ice and snow. It was not unreasonable for Trinity not to clear ice or snow from its seasоnal patios. Again, during the winter, a premises possessor cannot be expected to remove snow and ice from every portion of its premises, including areas adjacent to a cleared walkway, and Michigan caselaw makes it clear
V DESIGN AND CONSTRUCTION
Trinity argues that Ms. Buhalis’s claims that it defectively designed and constructed the roof of the building and the awning — even if those claims are distinct from the premises liability claim — are barred under MCL 600.5839. That statute protects “any contractor making the improvement.” MCL 600.5839(1). Because there is no evidence that Trinity designed or constructed the roof or the awning, that statute does not apply. For the same reason, Ms. Buhalis’s design and construction claims fail. Trinity presented unrebutted evidence that it did not design or construct the improvements on the premises. In the absence of evidence that Trinity designed or constructed the improvements, Trinity cannot be liable for a defect in their design or construction. See MCR 2.116(C)(10).
VI. REGULATORY AND STATUTORY CLAIMS
We also reject Ms. Buhalis’s claim that she has a cause of action under Mich Admin Code, R 325.21304(2), which requires nursing homes to maintain the premises in “a safe and sanitary condition and in a manner consistent with the public health and welfare.” Ms. Buhalis presents no argument or authority that this regulation provides a private cause of action. See Lash v Traverse City,
Further, were we to assumе (without deciding) that MCL 125.471 applies to Trinity’s facility and to a guest of an occupant, see MCL 125.401 (applying the housing law to certain classes of municipalities) and MCL 125.536 (stating that an occupant has a cause of action under the housing law), we hold that MCL 125.471 does not provide an independent cause of action under the facts of this case. Although the statute imposes an obligation to maintain the roof of a dwelling and to drain rain water, it specifically provides that the duty is imposed to “avoid dampness in the walls and ceilings and insanitary conditions.” Id. That is, it plainly does not impose a duty to remove snow and ice on the grounds outside the dwelling. And Ms. Buhalis did not otherwise allege that her injuriеs resulted from a failure to maintain the dwelling in good repair. See Morningstar v Strich,
VII. conclusion
For the above reasons, the trial court should have granted summary disposition to Trinity on all of Ms. Buhalis’s claims. In light of our resolution of these issues, we need not address the parties’ remaining arguments.
Affirmed in part, reversed in part, and remanded for entry of summary disposition for defendant in Docket Nos. 296535 and 300163. We do not retain jurisdiction.
Notes
Buhalis v Trinity Continuing Care Servs, unpublished order of the Court of Appeals, entered June 4, 2010 (Docket No. 296535).
Buhalis v Trinity Continuing Care Servs, unpublished order of the Court of Appeals, entered May 18, 2011 (Docket No. 300163).
The trial court subsequently set aside its order granting defendant’s first motion for summary disposition, but on different grounds. The trial court did not alter its decision regarding this issue.
Moreover, no special aspects existed that would have differentiated the icy condition from a typical open and obvious risk. “[0]nly those special aspects that give rise to a uniquely high likelihood of harm or severity of harm if the risk is not avoided will servе to remove that condition from the open and obvious danger doctrine. ” Lugo,
Here, the patio was clearly avoidable because Ms. Buhalis was not required to use it and, again, the main walkway to the front entrance was clear. Evidence also showed that a side entrance was available for visitors to use. Moreover, the presence of ice on the patio did not present such a substantial risk of death or severe injury that it was unreasonably dangerous to maintain the condition. Corey v Davenport College of Business (On Remand),
Dissenting Opinion
(dissenting). Although I do not join its analysis, I concur with the majority’s conclusions with regard to plaintiff Mary Buhalis’s ordinary negligence claim as well as her statutory and rеgulatory claims. I must dissent, however, from the majority’s decision to disregard settled premises liability law governing the duties owed by a premises possessor to his or her invitees. In a departure from Michigan’s common law, the majority holds that — as a matter of law — a premises possessor owes no duty to diminish the hazard of ice and snow from its property beyond clearing a single path to and from its main entrance. For the first time in Michigan’s jurisprudence, a premises possessor will have no duty to protect an invitee from a particular class of hazards; hazards that the premises possessor knows about, but that the invitee might not know or have reason to know about — that is, for the first time an inviteе will be relegated to the legal status of a trespasser while in an area of a defendant’s premises where he or she has not trespassed and where he or she is still, for all other purposes, an invitee. To this novel proposition, I cannot subscribe.
I conclude that Buhalis presented evidence that established a question of fact as to whether defendant, Trinity Continuing Care Services, impliedly invited her to use the patio to park her tricycle. Accordingly, she established a question of fact as to whether Trinity had a duty to clear the patio for her, as its invitee, and breached that duty. She also presented evidence from which a reasonable jury could havе concluded that the ice at issue was not open and obvious. Because a jury had to resolve these factual questions, the trial court erred when it dismissed Buhalis’s premises liability claim. I would reverse and remand for a trial on the merits.
I. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision to dismiss a claim under MCR 2.116(0(10). Barnard Mfg Co, Inc v Gates Performance Engineering, Inc,
II. PREMISES LIABILITY
A. THE DUTY TO PROTECT INVITEES USING THE PATIO
On appeal, Trinity argues that it owed no duty to keep ice and snow from the patio because the patio was closed for the winter. The duty that a premises possessor owes to persons visiting his or her property is inextricably intertwined with the visitor’s legal status while visiting the premises.
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if the owner: (a) knows of, or by the exercise of reasonable care would discover, the condition and should realize that the condition involves an unreasonable risk of harm to such invitees; (b) should expect that invitees will not discover or realize the danger, or will fail to protect themselves against it; and (c) fails to exercise reasonable care to protect invitees against the danger. [Id. at 597, citing Quinlivan v Great Atlantic & Pacific Tea Co, Inc,395 Mich 244 , 258;235 NW2d 732 (1975), citing 2 Restatement Torts, 2d, § 343, pp 215-216.]
Typically, whether a premises possessor had a duty cognizable at law is a question of law to be decided by the courts. See Riddle v McLouth Steel Prod Corp,
In this case, Buhalis, who was 86, testified that she liked to visit friends at Sanctuary at the Abbey, a nursing home owned and operated by Trinity. She said that she rode her three-wheeled cycle to the Abbey on the day at issue to deliver a bag of clothing for patients or friends. Therefore, there was evidence from which a reasonable jury could conclude that Buhalis was an invitee to those parts of the premises that visitors typically use. See Stanley v Town Square Coop,
In Nezworski, the plaintiff had gone to the defendant’s restaurant for a Christmas party. Id. at 51. The restaurant had two rooms, a larger room in the front and a smaller room in the rear. Id. at 48-49. Thеre was a door in the rear room that led out to a narrow cement platform, which had been enclosed. On the east end of the platform
On appeal, the defendant argued that it owed the plaintiff no duty to warn or protect her because when the plaintiff went “through the doorway in the rear room and upon the cement platform leading to the alley,” she became a trespasser. Id. at 58. In analyzing the issue, our Supreme Court explained that a premises possessor’s duty can arise from an implied invitation to use the area at issue:
“An implied invitation is one which is held to be extended by reason of the owner or occupant doing something or permitting something to be done which fairly indicates to the person entering that his entry and use of the property is consistent with the intentions and purposes of the owner or occupant, and leads him to believe that the use is in accordance with the design for which the place is adapted and allowed to be used in mutuality of interest.” [Id. at 59, quoting 45 CJ, Negligence, § 220, pp 809-810.]
The Court notеd that there was evidence that “other members of the party were using the rear room” and that the “door leading from such room onto the platform and to the alley was not locked and was open at least a part of the time during the evening.” Nezworski,
In this case, Buhalis testified that she had ridden her tricycle to the Abbey before and parked it on the patio near the entrance. There was also evidence that the Abbey’s employees had seen her do so in the past. Indeed, she parked her tricycle in front of the Abbey’s office window. There was also no evidence that the patio was actually or construсtively closed for the winter; there was no sign or barrier to suggest that the patio was closed and there was no evidence that anyone from the Abbey had told her that she could not use the patio. In addition, when asked whether he salted the patio area, the Abbey’s maintenance man, Joshua Shock, answered: “No, we never did that, unless — if we have extra time or we weren’t really busy that day, then maybe, but never.” This evidence permits an inference that Buhalis had used the patio with the knowledge and implied consent of the Abbey’s staff. Shock’s testimony further established that the Abbey’s maintenance staff would, if they had time, clear the patio — presumably for use by the Abbey’s residents and visitors. Accordingly, there was evidence from which a jury could find that Buhalis’s use of the patio area — even during winter— was “consistent with the intentions and purposes of the owner or
The majority concludes that Trinity had no duty to clear the patio of snow and ice because the patio was closed fоr the winter. That is, it essentially finds that Buhalis was a trespasser to the extent that she strayed from the path that Trinity cleared to its main entrance. To make this finding, the majority must have rejected the evidence that would permit a jury to find that Buhalis reasonably believed that she had the right to use the patio to park her tricycle and did so with Trinity’s implied consent. But this Court — like the trial court below — is not permitted to weigh the evidence or assess credibility on a motion for summary disposition. Skinner v Square D Co,
In addition to improperly weighing the evidence, the majority also uses the facts of this case to fundamentally alter the duty that premises possessors owe to warn or protect their invitees from snow and ice. Under the majority’s new rule, a rule previously unknown to Michigan law, a premises possessor no longer has any duty to clear snow and ice except to provide a path to the “main entrance.” Apparently, a premises possessor’s invitees now “assume the risk” for harms from the hazards posed by snow and ice on the paths leading to every entrancе other than the main entrance and for any other outdoor area that the premises possessor has invited the general public to use during the winter but chooses not to clear of snow and ice. Moreover, I cannot agree with the majority’s apparent conclusion that Trinity necessarily satisfied its duty by posting a sign warning that the main path might be slippery. It is well settled that, although the existence of a duty will often he a question of law, it is for the jury to decide “whether [the defendant’s] conduct in the particular case is below the general standard of care” unless reasonable minds could not differ. Moning v Alfono,
I also cannot agree with the majority’s conclusion that ice is an open and obvious danger as a matter of law because there was evidence that an average person of ordinary intelligence would not notice the ice on casual inspection.
B. OPEN AND OBVIOUS DANGERS
Even though there is a question of fact as to whether Trinity owed a duty to Buhalis as an invitee on the patio, Trinity would not owe Buhalis any duty if the ice at issue was an open and obvious danger. See Lugo v Ameritech Corp, Inc,
Buhalis testified at her deposition that, before she fell, she “look[ed] to see if there was any ice,” but “didn’t see any.” It was only after she fell that she saw thе ice that caused her fall. Further, although Buhalis acknowledged that she saw the ice after her fall and could have seen the ice had she looked down at it, taken in context, it is evident that the ice was only visible through close inspection near the ground — not through casual inspection while walking. Further, there was no evidence that there were other conditions that, when considered in context, would have placed a reasonable person on notice that there was ice at that specific location. See Slaughter,
In concluding that the ice involved in this case was an open and obvious danger, the majority — in part— perpetuates the fallacy that a person’s general knowledge about the potential for snow and ice is the same as having specific knowledge about the existence of a particular patch of snow and ice.
I would reverse the trial court’s decision to dismiss Buhalis’s premises liability claim and remand for a trial on the merits.
This fallacy, of course, can be misapplied to eliminate the duty to warn or remediate every hazard known to man: people know that manhole covers sometimes collapse under the weight of a pedestrian, so the hazard posed by collapsing manhole covers is open and obvious, even when there is no visible evidence that a manhole cover is in danger of collapsing; similarly, everyone knows that elevators sometimes crash to the earth, so the hazard posed by a falling elevator is open and obvious to every elevator passenger, even in the absence of visible evidence that the elevator is in disrepair.
Although it might sometimes appear to the contrary, our Supreme Court has never overruled Quinlivan. Instead, our Supreme Court has clarified that the duty stated in Quinlivan “must be understood in light of this Court’s subsequent decisions in Bertrand [