Nick Zimmer v. Harbour Cove on the Lake Condominium Community ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
NICK ZIMMER, UNPUBLISHED
March 14, 2017
Plaintiff-Appellant,
v No. 331545
Washtenaw Circuit Court
HARBOUR COVE ON THE LAKE LC No. 14-000960-NI
CONDOMINIUM COMMUNITY, SELECT
COMMUNITY MANAGEMENT, LLC, and
CREATION KEEPER, LLC,
Defendants-Appellees.
Before: CAVANAGH, P.J., and SAWYER and SERVITTO, JJ.
PER CURIAM.
Plaintiff appeals as of right an order denying his motion for reconsideration of an order
granting defendants’ motions for summary disposition and dismissing this case arising from
plaintiff’s slip and fall on a sidewalk at a condominium complex where his friend lived. We
affirm.
On January 20, 2014, at about 8:00 p.m. or 9:00 p.m., plaintiff was walking on a sidewalk
on his way to the condominium unit owned by his friend, George Bourdeau, when he slipped and
fell on ice, breaking his femur. Defendants Harbour Cove on the Lake Condominium
Community (Harbour Cove) and Select Community Management owned and managed the
property, while defendant Creation Keeper was the snow removal contractor.
Thereafter, plaintiff brought this action, alleging that he fell on black ice that formed, at
least in part, because of a defective drainage system which included misplaced gutter
downspouts. In relevant part, plaintiff raised ordinary negligence, premises liability, and
“nuisance” claims.
Subsequently, defendants Harbour Cove and Select Community Management filed a
motion for summary disposition under MCR 2.116(C)(10), arguing that plaintiff’s claim sounded
solely in premises liability and was precluded by the open and obvious doctrine. In brief,
defendants argued, it was winter, it was cold, there was snow on the ground, and there was snow
on the sidewalk where plaintiff fell. Plaintiff responded, arguing that defendants negligently
placed gutter downspouts and allowed snow piling in such a manner as to cause ice to develop
on the sidewalk where plaintiff fell—which constituted an ordinary negligence claim. Further,
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plaintiff argued, his premises liability claim was not precluded by the open and obvious doctrine
because he fell on black ice that was not covered by snow.
Defendant Creation Keeper also filed a motion for summary disposition under MCR
2.116(C)(10), arguing that it owed no duty to plaintiff and, if it did, that duty was not breached.
Plaintiff responded, arguing that Creation Keeper was liable for actively creating or contributing
to the formation of an accumulation of ice by improperly piling the snow in a location where,
when it melted, it would flow over the sidewalk and refreeze.
At a hearing on defendants’ motions for summary disposition, the trial court held that
plaintiff’s claims against defendants Harbour Cove and Select Community Management were
based on an allegedly dangerous condition on the land and sounded exclusively in premises
liability. Further, the snow and ice were open and obvious. Thus, the trial court dismissed
plaintiff’s ordinary negligence and premises liability claims, but reserved its decision on
plaintiff’s alleged nuisance claim. The trial court also took under advisement defendant Creation
Keeper’s motion for summary disposition with regard to plaintiff’s ordinary negligence claim
based on the piling of snow.
Plaintiff moved for reconsideration, arguing that the black ice was not open and obvious;
thus, his premises liability claim should not have been dismissed. And, plaintiff argued, his
ordinary negligence claim against defendants Harbour Cove and Select Community Management
should not have been dismissed because it was based on their negligent conduct. Defendants
Harbour Cove and Select Community Management filed a supplemental brief, arguing in part
that Michigan law does not recognize a public nuisance claim based on an accumulation of ice
and snow, whatever the cause. Plaintiff also filed a supplemental brief, arguing that defendant
Creation Keeper owed him a duty to perform snow remediation with ordinary care and that
defendant breached that duty by piling the snow in a way that created a hazardous condition.
At a subsequent hearing on the parties’ motions, the trial court denied plaintiff’s motion
for reconsideration. The trial court held that the ice plaintiff fell on was open and obvious
considering the other wintery conditions that would have alerted a person to the possible danger,
i.e., it was winter, it was cold, there was snow on the ground near where plaintiff fell, and it is
common for sidewalks to get icy under these circumstances. Further, the trial court held, this is a
premises liability case, not an ordinary negligence case. And the court dismissed plaintiff’s
“nuisance” claim for the reason set forth in defendants’ brief. With regard to defendant Creation
Keeper’s motion for summary disposition, the trial court agreed with defendant’s arguments and
granted the motion. Accordingly, plaintiff’s complaint was dismissed in its entirety. This appeal
followed.
Plaintiff first appears to argue that the trial court improperly dismissed his ordinary
negligence and nuisance claims against defendants Harbour Cove and Select Community
Management. We disagree.
We review de novo a trial court’s decision to grant a motion for summary disposition.
Lakeview Commons v Empower Yourself, LLC, 290 Mich App 503, 506; 802 NW2d 712 (2010).
A motion brought under MCR 2.116(C)(10) tests the factual support of a plaintiff’s claim and
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should be granted if, after consideration of the evidence submitted by the parties in the light most
favorable to the nonmoving party, no genuine issue regarding any material fact exists. Id.Plaintiff argues that the trial court “may not disregard longstanding common law and
equitable causes of action created by the Michigan Supreme Court by addressing only the portion
of the complaint that is subject to the ‘open and obvious’ defense.” This argument is unclear to
us. It appears that plaintiff may be arguing that defendants Harbor Cove and Select Community
Management should be held liable for “maintaining a nuisance” as discussed in the 1927 case,
Betts v Carpenter, 239 Mich 260, 265; 214 NW 96 (1927). However, plaintiff does not explain
or support his claim that a “nuisance” existed in this case with citations to applicable facts or
law. That is, for example, to the extent that plaintiff claims that a public (versus private)
nuisance existed, plaintiff fails to address how he suffered a type of harm different from that of
the general public when encountering the icy sidewalk. See Cloverleaf Car Co v Phillips
Petroleum Co, 213 Mich App 186, 190; 540 NW2d 297 (1995). An appellant may not simply
announce his position or give an issue cursory treatment and leave it to us to discover and
rationalize the basis for his claim. Peterson Novelties, Inc v City of Berkley, 259 Mich App 1,
14; 672 NW2d 351 (2003) (citations omitted). Thus, this issue is deemed abandoned. See id.Plaintiff also argues that defendants Harbour Cove and Select Community Management
can be held liable for ordinary negligence—aside from a premises liability claim—because their
active negligence with regard to the placement of gutter downspouts and piling of snow caused
ice to form on the sidewalk where plaintiff fell. In support of his claim, plaintiff relies on Clark
v Dalman, 379 Mich 251, 261; 150NW2d 755 (1967), and argues that defendants had a common-
law duty to use due care so as not to unreasonably endanger a person by their actions in that
regard. However, as the Clark Court made clear, the duty owed by the defendant to the plaintiff
in that case arose because “[f]ar from being a trespasser on the premises, plaintiff was at least a
licensee, or possibly an invitee.” Id. at 262. Similarly, in this case, the duty of care owed by
defendants Harbour Cove and Select Community Management to plaintiff arose because plaintiff
was an invitee on the premises. Generally, there is no duty that requires one to aid or protect
another unless there is a special relationship between them, Bailey v Schaaf, 494 Mich 595, 604;
835 NW2d 413 (2013), and it is this “special relationship” that gave rise to defendants’
obligation to use due care so as not to unreasonably endanger persons who walked on the
sidewalks at the condominium complex, including plaintiff.
Further, plaintiff argues, it was the conduct of defendants Harbour Cove and Select
Community Management that gave rise to his ordinary negligence claim and plaintiff relies on
Laier v Kitchen, 266 Mich App 482; 702 NW2d 199 (2005), in support of his argument.
However, in that case, the plaintiff was killed allegedly because of the defendant’s improper
operation or control of the front-end loader bucket on a tractor during its repair, i.e., the
defendant’s conduct caused the plaintiff’s death. Id. at 493-495. To the contrary, in this case,
defendants’ alleged conduct with regard to the placement of the downspouts and snow piling on
the property did not cause plaintiff’s injury. Likewise, this is not a case where the failure to use
due care with regard to a dangerous power tool or instrumentality located on defendants’
property caused plaintiff’s injury. See id. at 494-495. Rather, plaintiff’s injury was allegedly
caused by a dangerous condition on the property—an icy sidewalk. See also James v Alberts,
464 Mich 12, 19; 626 NW2d 158 (2001). Thus, as the trial court held, it is clear that defendants’
liability, if any, emanates from defendants duties as an owner, possessor, or occupier of land.
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See Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 692; 822 NW2d 254 (2012).
And “this is true even when the plaintiff alleges that the premises possessor created the condition
giving rise to the plaintiff’s injury.” Id. Therefore, plaintiff’s claim is grounded exclusively in
premises liability. Accordingly, the trial court properly dismissed plaintiff’s ordinary negligence
claim against defendants Harbour Cove and Select Community Management.
Plaintiff also appears to argue, very briefly, that the trial court improperly dismissed his
ordinary negligence claim against defendant Creation Keeper. We disagree.
To establish a prima facie case of negligence, a plaintiff must prove that (1) the defendant
owed the plaintiff a duty, (2) the duty was breached, (3) causation, and (4) damages. Loweke v
Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162; 809 NW2d 553 (2011). In this
case, it is undisputed that plaintiff was neither a party to the maintenance contract nor an
intended third-party beneficiary of that contract between Harbour Cove and Creation Keeper.
However, it is well-established that a defendant has a “common-law duty to use ordinary care in
order to avoid physical harm to foreseeable persons and property in the execution of its
undertakings.” Id. at 172. Thus, the requisite legal relationship appears to exist between
defendant Creation Keeper and plaintiff, giving rise to a duty of care.
However, plaintiff failed to establish, at minimum, that a genuine issue of material fact
exists on the issue whether Creation Keeper breached its duty to use “ordinary care” in the
manner in which it shoveled and piled snow before plaintiff fell. In his brief on appeal, plaintiff
states in a conclusory manner that defendant Creation Keeper “contributed to the unnatural ice
accumulation by piling snow next to the known hazardous downspouts even though Creation
Keeper had been instructed to place the snow elsewhere.” However, such conclusory statements
are insufficient to establish, for example, that Creation Keeper’s snow removal services were
contrary to typical snow removal practices and, thus, did not constitute “ordinary care.” And,
again, we will not make an appellant’s arguments for him. Peterson Novelties, Inc, 259 Mich
App at 14. Accordingly, considering the record before us, the trial court properly dismissed
plaintiff’s negligence claim against defendant Creation Keeper.
Finally, plaintiff argues that the “invisible patch of black ice” was not open and obvious
as a matter of law; therefore, his premises liability action against defendants Harbour Cove and
Select Community Management should not have been dismissed. We disagree.
Generally, “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, a
premises possessor is not required to protect an invitee from an open and obvious danger on the
land unless there are special aspects of the condition that make it unreasonably dangerous. Id. at
517. That is so because open and obvious dangers, by their nature, apprise an invitee of a
potential hazard that the invitee should take reasonable measures to avoid. Hoffner v Lanctoe,
492 Mich 450, 460-461; 821 NW2d 88 (2012). Premises possessors are not insurers charged
with a duty to guarantee the safety of all persons who come on their land. Id. at 459.
A danger is considered “open and obvious” if, under an objective standard, it is
reasonable to expect that an average person with ordinary intelligence would have discovered it
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upon casual inspection. Joyce v Rubin, 249 Mich App 231, 238-239; 642 NW2d 360 (2002).
Accordingly, the hazard presented by ice and snow is generally considered open and obvious.
Buhalis, 296 Mich App at 694 (citation omitted). And when the alleged hazard is black ice—or
ice that is essentially invisible—the presence of other indicia of a potentially hazardous
condition, including wintery conditions, may cause the “black ice” to be considered open and
obvious. See Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 483; 760 NW2d 287
(2008).
Considering the circumstances here, we conclude that plaintiff’s injury was the result of
an avoidable open and obvious danger and there is no evidence of a special aspect to the icy
condition that would justify holding defendants Harbor Cove and Select Community
Management liable under a premises liability theory. Plaintiff fell at about 8:00 p.m. or 9:00
p.m. on a cold January night. Plaintiff testified in his deposition that he could not recall if he
noticed snow on the sidewalk, but he did see snow on the grass next to the sidewalk. He also
testified that, after he fell, he noticed that he was lying on a large patch of ice. Bourdeau testified
that, on the night plaintiff fell, it was snowing lightly and there was snow on the sidewalk. He
found plaintiff “laying on a full sheet of ice that was covered by snow.” Bourdeau further
testified that there was an inch, “maybe two,” covering the ice and that the snow was along the
entire length of the sidewalk. He described the ice that plaintiff slipped on as covering about
three squares of sidewalk and “looked like a miniature skating rink.” Bourdeau testified that the
snow on the sidewalk was readily apparent, and plaintiff also told him that he saw the snow on
the sidewalk, but did not realize there was ice underneath it. Bourdeau also noticed the snow
piled up around the grounds of the condominium complex. In light of the evidence of record, the
trial court did not err in concluding that no genuine issue of material fact existed that the hazard
presented by the icy condition of the sidewalk was open and obvious. See, e.g., Janson v
Sajewski Funeral Home, 486 Mich 934, 935; 782 NW2d 201 (2010). Thus, the trial court
properly dismissed plaintiff’s premises liability claim.
Affirmed. Defendants are entitled to tax costs as the prevailing parties. MCR 7.219(A).
/s/ Mark J. Cavanagh
/s/ David H. Sawyer
/s/ Deborah A. Servitto
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