Nadia Hadid v. Huntington Management LLC ( 2021 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
NADIA HADID and RAJA HADID, UNPUBLISHED
July 22, 2021
Plaintiffs-Appellants,
v No. 353142
Wayne Circuit Court
HUNTINGTON MANAGEMENT LLC, LC No. 19-004207-NO
Defendant-Appellee.
Before: TUKEL, P.J., and SAWYER and CAMERON, JJ.
PER CURIAM.
Plaintiffs, Nadia Hadid and Raja Hadid, appeal as of right the order granting defendant,
Huntington Management LLC’s, motion for summary disposition under MCR 2.116(C)(10). For
the reasons discussed herein, we affirm.
This case arises from Nadia’s slipping and falling on an interior sidewalk in defendant’s
apartment complex. Nadia and Raja, husband and wife, are tenants in defendant’s apartment
complex, where they live with their son, Randy Hadid.
Nadia slipped and fell on the sidewalk about 7:30 a.m. the morning of March 6, 2019.
According to a weather report containing data recorded by the Detroit Metropolitan Wayne County
Airport Station, from March 3, 2019 until March 5, 2019, a total of about 0.02 inches of snow fell.
Specifically, 0.01 inches of snow fell on March 3, 2019, and 0.01 inches of snow fell and on March
4, 2019. The report shows that essentially no snow fell on March 5, 2019, and of the snow that
fell on March 3, 2019 and March 4, 2019, it did not accumulate.
About 7:00 a.m. on March 6, 2019, Nadia walked out of her apartment toward her car.
According to Nadia, it had been snowing for the past three days. She saw snow on the ground, but
she did not see any ice. Nadia testified she had a path to her car clear of any ice or snow, as the
night before, Randy had shoveled and scattered salt in front of the apartment. He cleared about a
three-or four-foot-wide path leading from the apartment’s exit to Nadia’s car, which was parked
directly in front of the apartment. Nadia walked this path to her car and started the car to let it
warm up. While the car warmed, she decided to retrieve her and Raja’s mail from their mailbox.
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Nadia and Raja’s mailbox sits atop a stanchion embedded in a block of concrete about 75
yards from their apartment. The mailbox stands on the curb of the parking lot, facing away from
the parking lot. From the exit of their apartment, a sidewalk runs most of the way to the concrete
platform on which the mailbox stands, but not all the way. Between the end of the sidewalk and
the concrete platform is grass. The mailbox requires a key to access, so Nadia went into the
apartment to retrieve the key. While she was inside, Raja warned her not to walk to the mailbox—
presumably because of the presence of ice or snow on the ground.
Nevertheless, Nadia went. Rather than walk through the parking lot, she decided to take
the sidewalk leading to the mailbox. According to Nadia, the parking lot is “worse” than the
sidewalk. Also, Nadia insisted that she could not have driven her car to the mailbox on her way
out, although she failed to explain why.
About halfway to the mailbox, Nadia slipped and fell to the ground, fracturing her left
wrist. She testified that she slipped on a patch of ice, which was “covered with snow.” She called
Raja for help on her cell phone, and he came to her assistance. Asked in his deposition to describe
the condition of the sidewalk at the time of Nadia’s fall, Raja testified that about an inch-and-a-
half of snow covered the ground, and so he could not see the surface of the sidewalk nor the surface
of the parking lot. But later in his deposition, Raja testified that the whole sidewalk—from his and
Nadia’s apartment to the mailbox—was covered with ice. Later again, Raja seemed to concede
that he had just assumed that the sidewalk was completely covered in ice—he had not actually
seen it.
Twenty days later, plaintiffs’ sued defendant. Plaintiffs alleged that defendant violated its
statutory duty under MCL 554.139(1)(a) to ensure common areas are fit for their intended use, that
defendant had violated § 302.3 of the International Property Maintenance Code (IPMC), and that
defendant breached its duty under common law to protect Nadia from an unreasonable risk of harm
posed by the presence of ice and snow on defendant’s sidewalks and parking lots. The trial court
issued a scheduling order setting a discovery cutoff date of November 5, 2019.
Once discovery was underway, defendant sent interrogatories to plaintiffs asking them to
disclose information about their witnesses. Notably, in one interrogatory, defendant asked
plaintiffs to “indicat[e] with respect to each witness, the allegations in [plaintiffs’] Complaint that
the witness will be called up to support.” In another interrogatory, defendant requested that for
each witness identified in plaintiffs’ list, plaintiffs state “[t]he facts they will be called to provide
testimony regarding.” Plaintiffs failed to provide a complete response to these interrogatories.
Plaintiffs simply listed the name and address of one witness—Kathleen Kyriacou—and directed
defendant to refer to plaintiffs’ witness list.
About two months after discovery closed, defendant moved for summary disposition under
MCR 2.116(C)(10). Defendant argued that it could not have been negligent per se because it salted
and removed any snow or ice in the area of Nadia’s fall later the same morning. Next, defendant
argued that it could not have been negligent under general negligence law because any snow or ice
on the sidewalk was open and obvious. Finally, defendant noted that the snow or ice was not
effectively unavoidable because Nadia could have driven her car to the mailbox or she could have
retrieved the mail later.
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Ten days later, on January 13, 2020, plaintiffs noticed defendant and the trial court that
they were going to depose Randy and Kathleen on January 20, 2020. That same day, in response
to an e-mail from plaintiffs, defendant asked whether the depositions would be trial depositions.
Plaintiffs responded that the depositions were “mainly to deal with [the] motion for [summary
disposition].” That same day, defendant filed an objection to plaintiffs’ notices of deposition and
filed an emergency motion for a protective order, or to adjourn the depositions. Defendant asked
the trial court to quash plaintiffs’ notices of deposition for Randy and Kathleen and to disregard
any input of these witnesses when considering defendant’s motion for summary disposition.
Defendant noted the discovery cutoff date had passed months ago and that plaintiffs had never
disclosed in their responses to defendant’s interrogatories the subject matter to which these
witnesses would testify. The next day, plaintiffs filed supplemental answers to defendant’s
interrogatories. Specifically, plaintiffs supplemented their answers to interrogatories by
explaining what plaintiffs expected Randy and Kathleen to testify.
Because plaintiffs refused to reschedule the depositions of Randy and Kathleen, in an ex
parte motion, defendant moved the trial court to impose a temporary restraining order on plaintiffs
from deposing Randy and Kathleen. The trial court granted defendant’s ex parte motion and
ordered plaintiffs not to depose Randy or Kathleen. Nevertheless, on January 20, 2020, plaintiffs
had proceeded with the depositions of Randy and Kathleen.
Responding to defendant’s motion for summary disposition, plaintiffs claimed that, at a
minimum, there was a genuine issue of fact as to whether the sidewalk had been fit for its intended
use. Plaintiffs argued that defendant had violated § 302.3 of the IPMC because defendant had
failed to remove snow and ice from the sidewalk. Finally, as to their common-law claim, plaintiffs
argued that the snow and ice on the sidewalk was not open and obvious because the snow and ice
had been effectively unavoidable.
Plaintiffs also responded to defendant’s motion for a protective order, arguing that the trial
court should not disregard Kathleen’s and Randy’s depositions because the depositions were for
plaintiffs’ trial preparation. In so arguing, plaintiffs ignored that they had submitted Randy’s and
Kathleen’s depositions with their response to defendant’s motion for summary disposition.
The trial court granted defendant’s motion for summary disposition. As a threshold matter,
the trial court declined to consider the deposition testimony of either Kathleen or Randy, or their
respective affidavits. The trial court also declined to consider the photographs that plaintiffs
offered in their response to defendant’s motion, as Randy had authenticated those photographs in
his deposition. Addressing the merits of plaintiffs’ claims, the trial court found that plaintiffs had
failed to show there was any dangerous condition on defendant’s property because the weather
report plaintiffs offered showed that no snow had accumulated on the ground between March 3,
2019 and March 5, 2019. Further, the trial court held, even if it had snowed, any danger posed by
the snow or ice on the sidewalk would have been open and obvious. Finally, the trial court rejected
plaintiffs’ argument that such danger was effectively unavoidable. The trial court reasoned that
Nadia had no need to get the mail at that time—she could have waited until later. And Nadia did
not have to use the sidewalk to walk to the mailbox—she had alternative routes available to her.
This appeal followed.
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Before addressing the merits, we note that plaintiffs ask us to strike exhibits C, D, E, and
F in defendant’s brief on appeal. Plaintiffs contend that those exhibits were not a part of the lower
court record. Contrary to plaintiffs’ contention, however, these exhibits were part of the lower
court record. Exhibit C, plaintiffs’ responses to defendant’s interrogatories, were attached as
Exhibit 1 to defendant’s motion for protective order. Exhibit D, plaintiffs’ witness list, is included
in the lower court file. Exhibit E, the e-mail correspondence between plaintiffs’ counsel and
defendant’s counsel, was attached as Exhibit 2 to defendant’s motion for protective order. And
Exhibit F, the trial court’s order granting defendant’s motion for a temporary restraining order, is
in the lower court file.
I. TRIAL COURT’S REFUSAL TO CONSIDER EVIDENCE
Turning now to the merits of plaintiffs’ claims, plaintiffs first argue that the trial court
abused its discretion in refusing to consider Randy’s deposition and affidavit, and Kathleen’s
deposition and affidavit. Plaintiffs’ reasoning is difficult to follow, but in essence, plaintiffs seem
to argue that the trial court lacked the authority to refuse this evidence under the Michigan Court
Rules in effect before January 1, 2020. We disagree.
We review decisions regarding sanctions for discovery violations for an abuse of
discretion. Jilek v Stockson, 297 Mich App 663, 665; 825 NW2d 358 (2012) (citation omitted).
“An abuse of discretion occurs when the decision results in an outcome falling outside the range
of principled outcomes.” Barnett v Hidalgo, 478 Mich 151, 158; 732 NW2d 472 (2007). The
interpretation of court rules is a question of law that this Court reviews de novo. Rema Village
Mobile Home Park v Ontwa Twp, 278 Mich App 169, 171; 748 NW2d 896 (2008).
“A newly adopted court rule will not be applied to pending actions if a ‘party acts, or fails
to act, in reliance on the prior rules and the party’s action or inaction has consequences under the
new rules that were not present under the old rules.’ ” Ligons v Crittenton Hosp, 490 Mich 61, 88;
803 NW2d 271 (2011), quoting Reitmeyer v Schultz Equip & Parts Co, Inc, 237 Mich App 332,
337; 602 NW2d 596 (1999). To the extent that the current version of MCR 2.302(E) differs from
the prior version—MCR 2.302(E), as amended October 1, 2014, 497 Mich clxii-clxiii (2015)—
plaintiffs could not have been expected to conform their conduct to the current version.
Consequently, MCR 2.302(E), as amended October 1, 2014, 497 Mich clxii-clxiii (2015) would
have applied from March 26, 2019 until January 1, 2020.
Nevertheless, the version of MCR 2.302(E) in effect before January 1, 2020, still imposed
a duty on parties to supplement incomplete responses to requests for discovery to include
information acquired later. MCR 2.302(E), as amended October 1, 2014, 497 Mich clxii-clxiii
(2015 ) stated:
(E) Supplementation of Responses.
(1) Duty to Supplement. A party who has responded to a request for
discovery with a response that was complete when made is under no duty
to supplement the response to include information acquired later, except as
follows:
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(a) A party is under a duty seasonably to supplement the response
with respect to a question directly addressed to
(i) the identity and location of persons having knowledge of
discoverable matters; and
(ii) the identity of each person expected to be called as an
expert witness at trial, the subject matter on which the expert
is expected to testify, and the substance of the expert's
testimony.
(b) A party is under a duty seasonably to amend a prior response if
the party obtains information on the basis of which the party knows
that
(i) the response was incorrect when made; or
(ii) the response, though correct when made, is no longer true
and the circumstances are such that a failure to amend the
response is in substance a knowing concealment.
(c) A duty to supplement responses may be imposed by order of the court,
agreement of the parties, or at any time before trial through new requests
for supplementation of prior responses. [MCR 2.302(E), as amended
October 1, 2014, 497 Mich clxii-clxiii (2015) (emphasis added)].
Unlike the current version MCR 2.302(E), this prior version does not explicitly state that a party
must supplement a response to a discovery request if the party learns its response is incomplete.
The current version of MCR 2.302(E)(1) states, in relevant part:
(a) In General. A party that has made a disclosure under MCR 2.302(A)—or that
has responded to an interrogatory, request for production, or request for
admission—must supplement or correct its disclosure or response:
(i) in a timely manner if the party learns that in some material respect the disclosure
or response is incomplete or incorrect, and if the additional or corrective
information has not otherwise been made known to the other parties during the
discovery process or in writing . . . . [MCR 2.302(E)(1)(a).]
Although the prior version does not explicitly state that a party must supplement a response
to a discovery request if the party learns its response is incomplete, it does imply that a party must
supplement a response that the party learns is incomplete. MCR 2.302(E)(1), as amended October
1, 2014, 497 Mich clxii-clxiii (2015), stated that “[a] party who has responded to a request for
discovery with a response that was complete when made is under no duty to supplement the
response to include information acquired later . . . .” MCR 2.302(E)(1), as amended October 1,
2014, 497 Mich clxii-clxiii (2015). Although the prior version of MCR 2.302(E)(1) does not
explicitly mention anything about parties who have provided incomplete responses to discovery
requests, it is a general principle of interpretation that the expression of one thing implies the
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exclusion of others. See Coventry Parkhomes Condo Ass’n v Fed Nat’l Mtg Ass’n, 298 Mich App
252, 261; 827 NW2d 379 (2012). This is commonly referred to as the doctrine of expressio unius
est exclusio alterius. Id. “The doctrine characterizes the general practice that ‘when people say
one thing they do not mean something else.’ ” Detroit City Council v Detroit Mayor, 283 Mich
App 442, 456; 770 NW2d 117 (2009), quoting Feld v Robert & Charles Beauty Salon, 435 Mich
352, 362; 459 NW2d 279 (1990). Here, the prior version of MCR 2.302(E)(1)’s express reference
to parties that have provided complete responses implies the exclusion of parties that have
provided incomplete responses. Hence, this implies that a party who has responded to a request
for discovery with a response that was incomplete when made is under a duty to supplement his
or her responses to include information acquired later.
In this case, plaintiffs responded to defendant’s interrogatories with incomplete responses.
Specifically, in interrogatory no. 35, for each witness of which plaintiffs had knowledge, defendant
asked plaintiffs to disclose whether the witness was an eyewitness to Nadia’s fall, was a medical
witness, or whether the witness had other knowledge relating to either the circumstances or facts
regarding the incident. In response, plaintiffs provided Kathleen’s name and address but nothing
more. In interrogatory no. 39, for each witness on plaintiffs’ witness list, defendant asked plaintiffs
to disclose “the facts [the witness] will be called to provide testimony regarding . . . .” Plaintiffs
responded “please refer to witness/exhibit list” but responded no further.
Accordingly, plaintiffs’ response to this discovery request was incomplete, and plaintiffs
had a duty to supplement their responses to these interrogatories. And they were required to do so
“seasonably”:
(2) Failure to Supplement. If the court finds, by way of motion or otherwise, that a
party has not seasonably supplemented responses as required by this subrule the
court may enter an order as is just, including an order providing the sanctions stated
in MCR 2.313(B), and, in particular, MCR 2.313(B)(2)(b). [MCR 2.302(E), as
amended October 1, 2014, 497 Mich clxii-clxiii (2015).]
Plaintiffs did not supplement their responses to defendant’s interrogatories until seven months after
receiving them—and two months after the discovery cutoff date. Plaintiffs cannot contend that
only then did they discover the facts of which Randy and Kathleen had knowledge. Randy is
plaintiffs’ son, and Kathleen is plaintiffs’ neighbor who lives in the same building. Given that
plaintiffs waited to supplement their responses until two months after discovery closed, and after
defendant had already moved for summary disposition, the trial court did not abuse its discretion
in concluding that plaintiffs had failed to “seasonably” supplement their responses.
Moreover, the trial court imposed an appropriate sanction in response to plaintiffs’ failure
to supplement their responses. Under MCR 2.302(E)(2), as amended October 1, 2014, 497 Mich
clxii-clxiii (2015), “[i]f the court [found], by way of motion or otherwise, that a party ha[d] not
seasonably supplemented responses . . . the court [could] enter an order as [was] just, including an
order providing the sanctions stated in MCR 2.313(B), and, in particular, MCR 2.313(B)(2)(b).
MCR 2.302(E)(2). Under MCR 2.313(B)(2)(b), as amended December 16, 2008, 482 Mich cxxii-6-
(2009),1 which was in effect before January 1, 2020, the trial court could enter “an order refusing
to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting
the party from introducing designated matters into evidence.” MCR 2.313(B)(2)(b). Thus, the
trial court was within its discretion to decline to consider Randy’s deposition and affidavit and
Kathleen’s deposition and affidavit.
The trial court was also within its discretion to decline to consider this evidence under
MCR 2.301(B)(3), which states “[a]fter the time for completion of discovery, a deposition of a
witness taken solely for the preservation of testimony may be taken at any time before
commencement of trial without leave of court.” MCR 2.301(B)(3). Again, the expression of one
thing implies the exclusion of others. Hence MCR 2.301’s explicit reference to depositions taken
solely for the preservation of testimony impliedly excludes depositions taken for other purposes,
meaning plaintiffs were required to seek leave of court to depose Randy and Kathleen.
Finally, to the extent that plaintiffs argue the trial court did not give them an opportunity
to be heard before it declined to consider their proffered evidence, this argument lacks merit.
Defendant moved the trial court for a protective order, and plaintiffs were permitted to respond.
Plaintiffs present no authority or argument explaining why this would have been an insufficient
opportunity to be heard.
II. MCL 554.139(1)
Plaintiffs next argue that there was a genuine dispute of material fact as to whether the
sidewalk where Nadia slipped was fit for its intended use, and the trial court should not have
dismissed their MCL 554.139(1) claim.
We review de novo a trial court’s decision to grant summary disposition. Pontiac Police
& Fire Retiree Prefunded Group Health & Ins Trust Bd of Trustees v City of Pontiac, 309 Mich
App 611, 617; 873 NW2d 783 (2015). “A motion under MCR 2.116(C)(10) ‘tests the factual
support of a plaintiff's claim.’ ” Zaher v Miotke, 300 Mich App 132, 139-140; 832 NW2d 266
(2013), quoting Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). “Summary
disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any
material fact and the moving party is entitled to judgment as a matter of law.” West v Gen Motors
Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). In considering a motion under MCR
2.116(C)(10), this Court must examine “the pleadings, admissions, affidavits, and other relevant
documentary evidence of record in the light most favorable to the nonmoving party to determine
whether any genuine issue of material fact exists to warrant a trial.” Walsh, 263 Mich App at 621.
“A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to
the opposing party, leaves open an issue upon which reasonable minds might differ.” West, 469
Mich at 183.
Under MCL 554.139(1)(a), a landlord owes his or her tenant a duty to keep the premises
and all common areas fit for the use intended by the parties:
1
According to 482 Mich cxxii (2009), subsection (B) was not amended.
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(1) In every lease or license of residential premises, the lessor or licensor covenants:
(a) That the premises and all common areas are fit for the use intended by the
parties. [MCL 554.139(1)(a).]
For courts tasked with applying this language, our Supreme Court has provided the following
analytical framework:
First, the court is to determine whether the area in question is a “common area.”
Then, the court is to identify the intended use of the common area. Lastly, the court
must determine if there could be “reasonable differences of opinion regarding”
whether the conditions made the common area unfit for its intended use. [Estate of
Trueblood v P&G Apartments, LLC, 327 Mich App 275, 289; 933 NW2d 732
(2019), citing Allison v AEW Capital Mgt, LLP, 481 Mich 419, 427-431; 751 NW2d
8 (2008).]
The issue in this case is whether there could be reasonable differences of opinion regarding
whether the conditions of the sidewalk made it unfit for its intended use. The sidewalk here was
located within the parameters of defendant’s apartment complex and lead from apartment
buildings to adjoining parking lots; thus, it was a common area. See Estate of Trueblood, 327
Mich App at 289-290; see also Allison, 481 Mich at 427 (defining “common areas” as used in
MCL 554.139 as “those area of the property over which the lessor retains control that are shared
by two or more, or all, of the tenants.”). And, as this Court has already held, the intended use of
such a sidewalk is “walking on it.” Id. at 290.
Plaintiffs first argue the trial court never considered their claim that defendant violated its
duty under MCL 554.139(1)(a). We disagree. Relying on the weather report that plaintiffs had
provided, the trial court found that no snow had accumulated on the ground between March 3,
2019 and March 6, 2019. Although the trial court did not specifically say so, it is reasonably clear
the trial court found this fact was dispositive of both plaintiffs’ premises-liability claim and
plaintiffs’ claim under MCL 554.139(1)(a).
Next, plaintiffs argue there is a genuine issue of material fact as to whether the sidewalk
was fit for its intended use because Raja testified that the entire sidewalk—from his and Nadia’s
apartment to the mailbox—was covered with ice. Again, we disagree.
To begin, plaintiffs here are complaining that the trial court relied on evidence that they
themselves provided. “A party may not claim error ‘premised on an error to which he contributed
by plan or negligence.’ ” Kern v Kern-Koskela, 320 Mich App 212, 238; 905 NW2d 453 (2017),
quoting People v Bosca, 310 Mich App 1, 29; 871 NW2d 307 (2015). Even so, plaintiff’s
evidence—namely the weather report—forecloses any issue of fact.
To be sure, this Court has held that if there is evidence that a sidewalk was “completely
covered” with ice, then the sidewalk may have been unfit for its intended use. Estate of Trueblood,
327 Mich at 290-291. If a sidewalk were completely covered with ice, then the ice would be more
than a “mere inconvenience.” Id. at 290. “[A]nyone walking on a sidewalk completely covered
in ice would be forced to walk on ice, and there is no way to simply walk around it.” Id. at 291.
Here, although his testimony was inconsistent, Raja did testify that the whole sidewalk was
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covered in ice. But the documentary evidence—namely the weather report—patently contradicts
his testimony. After all, the weather report states that only a total of 0.02 inches of snow fell from
March 3, 2019 through March 5, 2019, and of the snow that fell, the report indicates that none of
it accumulated on the ground. With this little snow fall, it would have been impossible for the
entire sidewalk to have completely frozen over.
Of course, issues of witness credibility and what weight to assign a witness’s testimony are
typically issues for the fact-finder to resolve. See Barnes v 21st Century Premier Ins Co, ___ Mich
App ___, ___; ___ NW2d ___ (2020) (Docket No. 347120, issued 11/5/2020); slip op at 11.
Generally, courts may not weigh the evidence, and summary disposition is especially inappropriate
where the resolution of a matter turns on the credibility of a witness. Lytle v Malady, 458 Mich
153, 176; 579 NW2d 906 (1998). But there is an exception to this general rule: if a witness’s
testimony is irreconcilably contrary to unassailably clear and objective record evidence, or if a
witness’s testimony is intrinsically impossible or totally unbelievable, summary disposition may
still be appropriate. Scott v Harris, 550 US 372, 380; 127 S Ct 1769; 167 L Ed 2d 686 (2007)
(“When opposing parties tell two different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.”); see also, Anderson v City of Bessemer
City, NC, 470 US 564, 575; 105 S Ct 1504; 84 L Ed 2d 518 (1985) (“a witness’s ‘story itself may
be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit
it.’ ”).2 This is a case in which this exception applies. Raja has told a story irreconcilably contrary
to the weather report—clear and objective record evidence.
Plaintiffs have offered no legitimate reason to doubt the reliability of this report. Indeed,
plaintiffs proffered this report in opposition to defendant’s motion for summary disposition. On
appeal, they now argue this report is inaccurate because this weather data was actually for Romulus
and Belleville. But plaintiffs offer nothing to support this assertion. While the report does indicate
that the Detroit Metropolitan Wayne County Airport Station recorded the data in the report,
nothing in the report suggests that the data was limited to Romulus and Belleville only. And even
if one were to accept plaintiffs’ contention that the Detroit Metropolitan Wayne County Airport is
about 20 miles from plaintiffs’ apartment, plaintiffs assume without evidence that a weather station
could not accurately record data for a location only 20 miles out. Next, plaintiffs point out that the
weather report’s representation that there were zero inches of precipitation is inconsistent with the
report’s other representation that there were multiple periods of “light snow” between March 3,
2019 and March 5, 2019. But plaintiffs fail to explain why this would mean the report is
inconsistent. Just because there were periods of light snow does not necessarily mean that any
snow accumulated.
2
On issues of state law, United States Supreme Court precedent is not controlling but may be
considered persuasive authority. See Garg v Macomb Co Community Mental Health Servs, 472
Mich 263, 283; 696 NW2d 646 (2005). Considering the purpose of MCR 2.116(C)(10)—like its
analog under the Federal Rules of Civil Procedure—is to test whether there is legitimately a triable
issue of fact, we find this precedent persuasive in this instance.
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Given that the weather report directly contradicts Raja’s testimony, and plaintiffs have
offered no legitimate reason for us to doubt the report’s accuracy, reasonable minds could not
disagree: the sidewalk here was not completely covered in ice. “A genuine issue of material fact
exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open
an issue upon which reasonable minds might differ.” West, 469 Mich at 183. Even though there
may be some inconsistency between the weather report and Raja’s testimony, it is not enough to
transform into a genuine issue of material fact such that summary disposition would be precluded.
Accordingly, plaintiffs failed to show that the sidewalk here was ever unfit for its intended use.
Finally, to the extent that plaintiffs argue that defendant breached its duty under MCL
554.139(1)(b), plaintiffs have abandoned this issue. In their brief on appeal, they state that
defendant breached its duty under MCL 554.139(1)(b), but they offer no argument as to why or
how. “An appellant's failure to properly address the merits of his assertion of error constitutes
abandonment of the issue.” Houghton ex rel Johnson v Keller, 256 Mich App 336, 339-340; 662
NW2d 854 (2003).
III. PREMISES LIABILITY
Last, plaintiffs argue that the trial court erred by granting defendant’s motion for summary
disposition on its premises-liability claim.
“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), citing Taylor v Laban, 241 Mich App
449, 452; 616 NW2d 229 (2000). “The duty that a landlord owes a plaintiff depends on the
plaintiff's status on the land.” Benton, 270 Mich App at 440. A tenant is considered an invitee of
a landlord. Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). So under
general negligence law, a landlord "owes a duty to [a tenant] to exercise reasonable care to protect
the [tenant] from an unreasonable risk of harm caused by a dangerous condition on the land.” Id.Absent special aspects, “this duty does not extend to open and obvious dangers.” Estate of
Trueblood,327 Mich App at 285. And “[g]enerally, the hazard presented by snow and ice is open
and obvious . . . .” Id. Thus, a landowner generally owes no duty to a tenant to warn of or remove
snow or ice. Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 694; 822 NW2d 254
(2012).
However, if an open or obvious hazard such as snow or ice is “effectively unavoidable,” a
landlord may have a duty to the tenant to warn of or remove it. See Hoffner v Lanctoe, 492 Mich
450, 463; 821 NW2d 88 (2012) (“This Court has discussed two instances in which the special
aspects of an open and obvious hazard could give rise to liability: when the danger is unreasonably
dangerous or when the danger is effectively unavoidable.”). In Hoffner, our Supreme Court
explained that “the standard for ‘effective unavoidability’ is that a person, for all practical
purposes, must be required or compelled to confront a dangerous hazard.” Id. at 469. When a
person has the opportunity to make an alternative decision to avoid an open and obvious icy
condition, the “effectively unavoidable” exception does not apply. Bullard v Oakwood Annapolis
Hosp, 308 Mich App 403, 412-413; 864 NW2d 591 (2014) (holding that the ice on which the
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plaintiff had slipped was not effectively unavoidable because the plaintiff consciously decided to
put himself in a position where he would face the ice).
In this case, plaintiffs argue that Nadia had no opportunity to make an alternative decision
to avoid walking on the allegedly ice-covered sidewalk. Citing this Court’s decision in Spigner v
Yarmouth Commons Ass’n, unpublished opinion of the Court of Appeals, issued September 30,
2014 (No. 315616), plaintiffs argue that people have a unique need to retrieve their mail. Thus
Nadia’s decision to retrieve her mail cannot be considered a choice. Also, plaintiffs argue that the
sidewalk was the only way by which Nadia could access her mailbox. We disagree.
Assuming without deciding that people have a unique need to retrieve their mail that cannot
be equated with a simple desire to avail oneself of products or services 3, plaintiffs’ argument still
fails—for Nadia had more than one way by which to access her mailbox. The mailbox in Spigner
was completely surrounded by an embankment of snow, leaving the plaintiff in that case with no
option but to confront it to retrieve her mail. See Spigner, unpub op at 2. In contrast here, Nadia
had other options by which to access her mailbox. Perhaps most obviously, Nadia could have
driven her car to the mailbox on her way out of the apartment complex. It is undisputed that Nadia
had a pathway clear of ice or snow leading from her apartment to her car.4 And even if Nadia
would have had to get out of her car once pulled up to the mailbox, unlike in Spigner, there is also
no evidence that the ground surrounding the mailbox was unfit for walking on. In their depositions,
neither Raja nor Nadia mentioned anything about the ground surrounding the mailbox. True
enough, Raja suggested that an inch-and-a-half of snow covered the ground, but an inch-and-half
of snow is not enough to block access to a mailbox or to present an unreasonable risk of harm.
Therefore, the trial court correctly concluded that there was no genuine issue of material
fact as to whether Nadia could have avoided walking on the allegedly ice-covered sidewalk.
IV. CONCLUSION
In sum, the trial court correctly granted defendant’s motion for summary disposition. The
trial court acted within its authority under the court rules to disregard Randy’s deposition and
affidavit and Kathleen’s deposition and affidavit. As to plaintiffs’ premises-liability claim, any
snow or ice on the sidewalk was open and obvious, and not unavoidable. As to plaintiffs’ claim
3
In Spigner, an embankment of snow had built up around the plaintiff’s mailbox. Spigner, unpub
op at 2. Thus, to retrieve her mail, the plaintiff had to confront the embankment of snow—for the
snow pile blocked all access points to the mailbox. This Court noted that, even when a danger
blocks all access points to a service or business, the danger is not effectively unavoidable when
that service or business is nonessential. Id. at 8, citing Hoffner v Lanctoe, 492 Mich 450, 471-473;
821 NW2d 88 (2012). But this Court found that retrieving one’s mail is essential, such that one
has more than a “mere subjective desire or need” to access it. Spigner, unpub op at 8.
4
And there is no evidence the parking lot was otherwise unfit for driving: viewed in a light most
favorable to plaintiff, the evidence shows that—at most—there was an inch and a half of snow on
the ground.
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under MCL 554.139(1)(a), plaintiffs failed to show that a genuine issue of material fact exists as
to whether the sidewalk was completely covered in ice.
Affirmed.
/s/ Jonathan Tukel
/s/ David H. Sawyer
/s/ Thomas C. Cameron
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