SAAD, J.
Under 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 available 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.
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
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, 276 Mich.App. 120, 124, 739 N.W.2d 900 (2007).
Here, Ms. Buhalis alleged that she was injured when she slipped 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.
On cross-appeal in Docket No. 296535, Ms. Buhalis argues that the trial court erred by granting Trinity's first motion for summary disposition regarding plaintiff's 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 plaintiff's injury, and (4) the plaintiff suffered damages." Benton v. Dart Props. Inc., 270 Mich.App. 437, 440, 715 N.W.2d 335 (2006). "[T]he existence of a legal duty is a question of law for the court to decide." Anderson v. Wiegand, 223 Mich.App. 549, 554, 567 N.W.2d 452 (1997). A "possessor of land is not an absolute insurer of the safety of an invitee." Id. Generally, an owner of land "owes a duty to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land." Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 516, 629 N.W.2d 384 (2001). Absent special aspects, this duty does not extend to open and obvious dangers. Id. at 516-517, 629 N.W.2d 384. Moreover, "the open and obvious doctrine should not be viewed as some type of `exception' to the duty generally owed invitees, but rather as an integral part of the definition of that duty." Id. at 516, 629 N.W.2d 384.
"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, 276 Mich.App. 389, 392, 740 N.W.2d 547 (2007). Here, Ms. Buhalis contends that the ice was not open and obvious because it was clear and she did not see it before she fell. However, if a "condition creates a risk of harm only because the invitee does not discover the condition or realize its danger, then the open and obvious doctrine will cut off liability if the invitee should have discovered the condition and realized its danger." Bertrand, 449 Mich. at 611, 537 N.W.2d 185. A plaintiff may not recover if the condition is "`so common that the possibility of [its] presence is anticipated by prudent persons.'" Id. at 615, 537 N.W.2d 185 (citation omitted).
In Slaughter v. Blarney Castle Oil Co., 281 Mich.App. 474, 479, 760 N.W.2d 287 (2008), this Court explained: "When applying the open and obvious danger doctrine to conditions involving the natural accumulation of ice and snow, our courts have progressively imputed knowledge regarding the existence of a condition as should reasonably be gleaned from all of the senses as well as one's common knowledge of weather hazards that occur in Michigan during the winter months." Thus, the question is whether the ice was visible on casual inspection or whether there were other indicia of a potentially hazardous condition that would impute knowledge on the part of Ms. Buhalis. Id. at 483, 760 N.W.2d 287.
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 plaintiff's 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., 470 Mich. 320, 332, 683 N.W.2d 573 (2004) (quotation marks omitted). See also Benton, 270 Mich.App. at 443 n. 2, 715 N.W.2d 335 ("Mann established that there is no general duty of inviters to take reasonable measures to remove snow and ice for the benefit of invitees unless the accumulation meets the [Mann] majority's high standard of creating an unreasonable risk of danger."). In other words, it is not Trinity's duty to guarantee that ice will never form on its premises, but it does have a duty to ensure that invitees are not unnecessarily exposed to an unreasonable danger.
Reasonable minds could not disagree that Trinity exercised "reasonable care." Trinity provided a sizeable, 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 seasonal 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
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).
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, 479 Mich. 180, 192-193, 735 N.W.2d 628 (2007) (setting forth the test for determining when a private right of action for damages can be inferred from a statute). And this Court will not search for authority to support or reject her position. See Flint City Council v. Michigan, 253 Mich.App. 378, 393 n. 2, 655 N.W.2d 604 (2002). Therefore, we hold that Ms. Buhalis failed to establish that she had a viable claim under that regulation.
Further, were we to assume (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 remote snow and ice on the grounds outside the dwelling. And Ms. Buhalis did not otherwise allege that her injuries resulted from a failure to maintain the dwelling in good repair. See Morningstar v. Strich, 326 Mich. 541, 545, 40 N.W.2d 719 (1950) (holding landlord liable for injuries to tenant's child when injured by radiator that landlord had prior knowledge was defective). Accordingly, under these facts, the trial court should have dismissed Ms. Buhalis's claim to the extent that it relied on MCL 125.471.
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.
O'CONNELL, J., concurred with SAAD, J.
M.J. KELLY, P.J. (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 regulatory 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 invitee 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 have 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.
This Court reviews de novo a trial court's decision to dismiss a claim under MCR 2.116(C)(10). Barnard Mfg. Co., Inc. v. Gates Performance Engineering, Inc., 285 Mich.App. 362, 369, 775 N.W.2d 618 (2009).
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. Stitt v. Holland Abundant Life
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., 440 Mich. 85, 95, 485 N.W.2d 676 (1992) (noting that the trial court must decide the threshold issue of duty of care in a negligence action). However, "if there is evidence from which invitee status might be inferred, it is a question for the jury." Stitt, 462 Mich. at 595, 614 N.W.2d 88; see also Bertrand v. Alan Ford, Inc., 449 Mich. 606, 617, 537 N.W.2d 185 (1995).
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., 203 Mich.App. 143, 147-148, 512 N.W.2d 51 (1993) (holding that a tenant's guests are invitees of the landlord because the landlord derives a pecuniary benefit from the consideration paid by the tenants in exchange for the right to invite guests); see also Restatement, 2d, Torts § 332, comment g, p 180 (noting that those who "go to a hotel to pay social calls upon the guests or to a railway station to meet passengers or bid them farewell, are business visitors, since it is part of the business of the hotelkeeper and railway to afford the guest and passengers such conveniences"). But, as our Supreme Court has recognized, a visitor can lose his or her invitee status if he or she moves from an area open to invitees into an area that is not open to invitees. See, e.g., Muth v. W. P. Lahey's, Inc., 338 Mich. 513, 517-518, 61 N.W.2d 619 (1953) (holding that, although the plaintiff proceeded to go into the store's backroom to look for shoes, it was undisputed that the store's clerk had instructed her to do so and, as such, the plaintiff was still an invitee, not a mere licensee). Thus, if the patio was closed for the winter, Buhalis might not have been an invitee when she used the patio. Nevertheless, as our Supreme Court explained approximately 80 years ago in Nezworski v. Mazanec, 301 Mich. 43, 2 N.W.2d 912 (1942), a visitor's status is a matter for the jury if there is evidence from which it could find that the visitor reasonably understood that he or she had the right to use the area at issue.
In Nezworski, the plaintiff had gone to the defendant's restaurant for a Christmas party. Id. at 51, 2 N.W.2d 912. The restaurant had two rooms, a larger room in the front and a smaller room in the rear. Id. at 48-49, 2 N.W.2d 912. There 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, 2 N.W.2d 912. 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:
The Court noted 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." Nezwarski, 301 Mich. at 59, 2 N.W.2d 912. There was also evidence that, despite the defendant's denials, he must have been aware that his guests were using the doorway and platform as an exit to the alley. Id. The Court explained that the "circumstances were such that [the] plaintiff could reasonably presume that she had the same right as others to use the door, platform, and alley." Id. Accordingly, there was "testimony from which the jury could reasonably find that [the] plaintiff, when using the doorway and platform leading to the alley, was an invitee, and not a trespasser." Id. at 60, 2 N.W.2d 912. Because the plaintiff was an invitee when she entered onto the platform, the defendant had the requisite duty to warn or otherwise protect her from the hidden danger posed by the platform's condition. Id. at 60-61, 2 N.W.2d 912.
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 constructively 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 for 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., 445 Mich. 153, 161, 516 N.W.2d 475 (1994). Rather, it must review all the evidence in the light most favorable to the nonmoving party. Id. And, given the evidence actually presented by the parties, there is a question of fact as to whether Buhalis was an invitee at the time and place of her fall. If she was an invitee, then Trinity had a duty to warn or protect her from the hazards that were on the patio.
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 entrance 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 be 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, 400 Mich. 425, 438, 254 N.W.2d 759 (1977). Here, a reasonable jury could conclude that, given the danger posed by black ice and the likelihood that its invitees would not discover the ice, Trinity should have taken additional steps to abate the hazard beyond posting a sign.
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.
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., 464 Mich. 512, 516-519, 629 N.W.2d 384 (2001). The open and obvious danger doctrine is not an exception to the duty owed by a possessor of land, but a part of its definition.
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 the 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, 281 Mich.App. at 482-484, 760 N.W.2d 287. Given this evidence, I also conclude that the trial court erred to the extent that it determined that the ice was an open and obvious danger as a matter of law. Whether the ice constituted an open and obvious hazard is a question for a jury, not the court.
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.
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), 251 Mich.App. 1, 7, 649 N.W.2d 392 (2002); Joyce v. Rubin, 249 Mich.App. 231, 243, 642 N.W.2d 360 (2002). Accordingly, plaintiff has failed to establish that any special aspect existed that rendered the icy condition effectively unavoidable or unreasonably dangerous.
