Trawmisha Toney v. Jones Lang Lasalle Americas Inc ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
TRAWMISHA TONEY, UNPUBLISHED
May 5, 2016
Plaintiff-Appellant,
v No. 325462
Wayne Circuit Court
JONES LANG LASALLE AMERICAS, INC., LC No. 13-013901-NO
ASHKENAZY ACQUISITION CORP., and
EASTLAND CENTER, INC.,
Defendants-Appellees.
Before: JANSEN, P.J., and SERVITTO and M. J. KELLY, JJ.
PER CURIAM.
In this premises liability action, plaintiff appeals as of right the trial court’s order granting
summary disposition in favor of defendants pursuant to MCR 2.116(C)(10). We affirm.
In February 2011, plaintiff went to Eastland Mall, collectively owned and operated by
defendants. While walking through the parking lot, plaintiff slipped on ice and was injured.
Plaintiff provided deposition testimony that the day was cold and dark, that she was wearing a
coat because it was cold, and that she realized it was wintertime. Plaintiff testified that the ice on
which she fell was not visible before or immediately after she fell. Plaintiff stated that the ice
only became visible after security guards threw salt and she could see it slide around, and the
security guards almost fell themselves. When it became visible, plaintiff described the icy patch
as spreading throughout the entire handicapped area of the parking lot. Plaintiff further testified
that, after her fall, she witnessed one other woman slip and fall on the ice. Plaintiff stated that
the fall caused her to have back and neck pain, as well as memory difficulty.
Plaintiff brought suit against defendants in the instant case alleging that they had violated
their duty to warn plaintiff of the dangerous situation on their property—the black ice.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that the ice
presented an open and obvious danger with no special aspects. The trial court granted
defendants’ motion and plaintiff now appeals.
Plaintiff argues that the trial court acted improperly in granting defendants’ motion
because (1) defendants failed to present evidence in support of their position, (2) there were
issues of fact regarding whether the ice was open and obvious or was unreasonably dangerous,
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and (3) the trial court found facts in favor of defendants which it was not permitted to do. We
disagree.
“This Court reviews decisions on motions for summary disposition de novo to determine
if the moving party was entitled to judgment as a matter of law.” Alcona Co v Wolverine
Environmental Prod, Inc, 233 Mich. App. 238, 245; 590 NW2d 586 (1998). A motion for
summary disposition pursuant to MCR 2.116(C)(10) “tests the factual sufficiency of the
complaint[.]” Joseph v Auto Club Ins Ass’n, 491 Mich. 200, 206; 815 NW2d 412 (2012). “In
evaluating a motion for summary disposition brought under this subsection, a trial court
considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the
parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion.”
Maiden v Rozwood, 461 Mich. 109, 120; 597 NW2d 817 (1999). Summary disposition is proper
where there is no “genuine issue regarding any material fact.” Id. “A reviewing court may not
employ a standard citing the mere possibility that the claim might be supported by evidence
produced at trial. A mere promise is insufficient under our court rules.” Bennett v Detroit Police
Chief, 274 Mich. App. 307, 317; 732 NW2d 164 (2006). “While it is true that the trial court must
‘consider [] affidavits, pleadings, depositions, admissions, and other evidence submitted by the
parties’, the nonmoving party may not rely on mere allegations or denials, but must set forth
specific facts that show that a genuine issue of material fact exists.” Id. at 318, quoting Maiden,
461 Mich. at 120 (alterations by the Bennett Court).
“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 NW2d 335 (2006). “In general, a premises possessor
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 NW2d 384 (2001). However, “there is no obligation to warn someone of
dangers that are so obvious and apparent that a person may reasonably be expected to discover
them and protect himself or herself.” Laier v Kitchen, 266 Mich. App. 482, 487; 702 NW2d 199
(2005). “Accordingly, 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.” Lugo, 464 Mich. at 516.
“Whether a danger is open and obvious depends on whether it is reasonable to expect that
an average person with ordinary intelligence would have discovered it upon casual inspection.”
Hoffner v Lanctoe, 492 Mich. 450, 461; 821 NW2d 88 (2012). When considering whether a
defect is open and obvious, courts must consider the “objective nature of the condition of the
premises at issue[.]” Lugo, 464 Mich. at 524. In other words, this is an objective standard. See
id.; see also Hoffner, 492 Mich. at 461. The open and obvious doctrine contains an exception for
open and obvious dangers with certain special aspects, including dangers that are “effectively
unavoidable” or “unreasonably dangerous.” Hoffner, 492 Mich. at 462-463.
In considering the open and obvious danger doctrine “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.” Slaughter v
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Blarney Castle Oil Co, 281 Mich. App. 474, 479; 760 NW2d 287 (2008). “Michigan courts have
generally held that the hazards presented by snow, snow-covered ice, and observable ice are
open and obvious and do not impose a duty on the premises possessor to warn of or remove the
hazard.” Id. at 481. This Court held in Slaughter, however, that this did not extend “to black ice
without evidence that the black ice in question would have been visible on casual inspection
before the fall or without other indicia of a potentially hazardous condition.” Id. at 483. In
support of that decision, this Court reasoned “[t]he overriding principle behind the many
definitions of black ice is that it is either invisible or nearly invisible, transparent, or nearly
transparent. Such definition is inherently inconsistent with the open and obvious danger
doctrine.” Id.
Here, defendants presented plaintiff’s deposition testimony and a photograph of the
parking lot taken shortly after plaintiff’s fall in support of their motion. Plaintiff testified that the
ice was invisible, but she also stated that the weather was cold and that it was wintertime.
Plaintiff’s friend, who was with her at the mall, took a photograph of the area after plaintiff’s
fall. Plaintiff testified that she did not know how long after the fall the photograph was taken,
but that she believed she was lying on the ground for a long time. Plaintiff admitted that the
photograph showed clearly visible ice, but testified that the lighting and angle must have been
different because she could not see the ice when she fell. Moreover, while plaintiff testified that
there was no snow in the parking lot on the day of her fall, this testimony is belied by the
photograph, which clearly shows snow.
While, “the mere fact of it being wintertime in [] Michigan” is not enough to make
someone aware of the potential of black ice, the presence of the snow is. See Slaughter, 281
Mich. App. at 483. This Court in Slaughter held that the open and obvious doctrine would only
apply to black ice if there was evidence that it “would have been visible on casual inspection
before the fall” or with “other indicia of a potentially hazardous condition.” Id. Here, plaintiff
was presented with a situation where it was winter in Michigan, it was cold, and there was snow
on the ground. These facts created a situation where it could “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” that there was likely black ice in the parking lot. See id. at 479. Indeed, this
Court has held that when a parking lot is covered in snow, but black ice is not visible, the danger
of the black ice is still open and obvious. See Royce v Chatwell Club Apartments, 276 Mich. App.
389, 394; 740 NW2d 547 (2007). “[T]he potential slipperiness of the snow-covered parking lot
was an open and obvious danger as a matter of law.” Id. Contrary to plaintiff’s assertion
otherwise, defendants sufficiently supported their motion and plaintiff thereafter provided no
evidence to contradict that provided by defendants or created a question of fact concerning
whether the condition was open and obvious.
Plaintiff also argues that the icy handicapped parking area created a special aspect
rendering the parking lot unreasonably dangerous. This Court has previously considered that
argument and found it to be without merit. In Royce, 276 Mich. App. at 395, the plaintiff argued
that because an ice patch was located in the handicap parking section, it amounted to an
unreasonably dangerous situation. We disagreed, opining that “[t]he fact that the ice patch on
which plaintiff fell was located near a handicapped parking space did not give rise to a uniquely
high likelihood of harm or severity of harm.” Id. This Court reasoned that the potential to slip
and fall on an icy and slippery parking lot did not “constitute a uniquely high likelihood or
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severity of harm and remove the condition from the open and obvious danger doctrine.” Id. at
395-396 (emphasis in original). Considering this, plaintiff’s argument that the black ice being in
the handicap parking area created an unreasonably dangerous situation is similarly without merit.
See id. “Because the condition of the parking lot was open and obvious and no special aspect
existed making the condition unreasonably dangerous[,]” the trial court properly granted
defendants’ motion for summary disposition. Id. at 396.
Plaintiff also briefly argues that the motion for summary disposition was premature
because more discovery was required. We disagree. Plaintiff only argues that the testimony of
the other woman that fell in the parking lot may have been available. Yet, plaintiff makes no
claim that the identity of that woman is known or discoverable or that her testimony would even
be helpful. “A reviewing court may not employ a standard citing the mere possibility that the
claim might be supported by evidence produced at trial. A mere promise is insufficient under
our court rules.” Bennett, 274 Mich. App. at 317. Plaintiff was not permitted to have her claim
survive summary disposition on the allegation that she might be able to obtain testimony from
the woman that fell in the parking lot, and that the testimony may be beneficial. See id. As such,
the trial court properly granted summary disposition in favor of defendants.
Lastly, plaintiff argues that the trial court engaged in some level of judicial misconduct.
We refuse to consider that argument for several reasons. First, the argument is not supported by
any citation to law or by any cognizant argument. Indeed, not a single case discussing judicial
misconduct is provided by plaintiff. “An appellant may not simply announce a position on
appeal and leave it to this Court to rationalize the basis for that claim.” Ypsilanti Charter Twp v
Kircher, 281 Mich. App. 251, 287; 761 NW2d 761 (2008). “Generally, ‘where a party fails to
brief the merits of an allegation of error, the issue is deemed abandoned by this Court.’ ” Yee v
Shiawassee Co Bd of Comm’rs, 251 Mich. App. 379, 406; 651 NW2d 756 (2002) (citation
omitted). Therefore, this issue is abandoned and we need not consider it. Further, even if we
wished to consider the issue, we would be unable to because all of the evidence relied upon by
plaintiff is not properly before this Court. Plaintiff’s entire argument of judicial misconduct
relies upon two affidavits that were not offered before the trial court. “This Court’s review is
limited to the record established by the trial court, and a party may not expand the record on
appeal.” Sherman v Sea Ray Boats, Inc, 251 Mich. App. 41, 56; 649 NW2d 783 (2002). See also
In re Harper, 302 Mich. App. 349, 361 n 3; 839 NW2d 44 (2013). As such, plaintiff has no
evidence to rely upon for her argument. Furthermore, we have reviewed the documents provided
by plaintiff and find that the statements in those documents allegedly made by the trial court,
even if true, do not amount to judicial misconduct.
Affirmed.
/s/ Kathleen Jansen
/s/ Deborah A. Servitto
/s/ Michael J. Kelly
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