Brandie Lemmerhart v. Timothy Marciniak ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
BRANDIE LEMMERHART, UNPUBLISHED
September 7, 2017
Plaintiff-Appellant,
v No. 334045
St. Joseph Circuit Court
TIMOTHY MARCINIAK, JUDY L. LC No. 15-000751-NI
MARCINIAK, and MAPLE PARK
RECREATION CENTER, INC,
Defendants-Apellees.
Before: BOONSTRA, P.J., and RONAYNE KRAUSE and SWARTZLE, JJ.
PER CURIAM.
Plaintiff appeals by right the trial court’s grant of summary disposition in favor of
defendants. Plaintiff slipped and fell on ice in the parking lot of a skating rink owned and
operated by the individual defendants through the LLC. Plaintiff contended that the ice was
present because defendants failed to install a proper gutter on the building, leading to water
discharge into the parking lot, and that defendants failed to address the problem of ice in the
parking lot despite having been advised of its presence earlier that day by other patrons. Plaintiff
claimed both negligence and premises liability. The trial court implicitly concluded that
plaintiff’s claims sounded in premises liability and that the ice was open and obvious. We
affirm.
A grant or denial of summary disposition is reviewed de novo on the basis of the entire
record to determine if the moving party is entitled to judgment as a matter of law. Maiden v
Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). When reviewing a motion under
MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all
evidence submitted by the parties in the light most favorable to the non-moving party and grants
summary disposition only where the evidence fails to establish a genuine issue regarding any
material fact. Id. at 120. The record suggests that defendants moved for summary disposition
under a multitude of court rules, although we cannot find any document in the record explicitly
so saying. But the matter was treated as strictly a motion pursuant to MCR 2.116(C)(10), and
defendants have not urged this Court to affirm on any alternate basis.
This Court has explicitly held, as plaintiff contends, that the “open and obvious” doctrine
does not apply to negligence claims, but rather only to premises liability claims. Wheeler v
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Central Michigan Inns, Inc, 292 Mich App 300, 304; 807 NW2d 909 (2011). However, the way
in which a party frames her claim is not dispositive of whether a claim actually sounds in
premises liability or ordinary negligence. Buhalis v Trinity Continuing Care Services, 296 Mich
App 685, 691-692; 822 NW2d 254 (2012). Even if a plaintiff alleges that the possessor or owner
of land created a hazardous condition, if the “injury arose from an allegedly dangerous condition
on the land, the action sounds in premises liability rather than ordinary negligence.” Id. at 692
(emphasis added). The distinction is whether the claim is based on “the overt acts of a premises
owner on his or her premises” or “injury by a condition of the land.” Kachudas v Invaders Self
Auto Wash Inc, 486 Mich 913, 914; 781 NW2d 806 (2010); see also James v Alberts, 464 Mich
12, 18-19; 626 NW2d 158 (2001) (“[t]he alleged injury occurred while [the defendant] and [the
plaintiff] were digging the trench; however, [the plaintiff] contends that it arose out of a
condition of the land, not out of the activity itself”) and Mann v Shusteric Enterprises, Inc, 470
Mich 320, 327; 683 NW2d 573 (2004) (intoxicated bar patron who slipped in the parking lot had
an “ordinary premises liability” cause of action rather than a dramshop claim).
It is inescapable from reading plaintiff’s complaint and arguments that all of the allegedly
negligent conduct committed by defendants pertains to the creation of, or failure to abate, a
hazardous condition of the land. Defendants did not, for example, push plaintiff over, or turn off
the lights as soon as plaintiff reached a treacherous part of a walkway. In other words,
defendants did not even allegedly engage in any conduct that directly harmed plaintiff. The trial
court did not state in so many words that it found plaintiff’s claim to be exclusively one for
premises liability and not negligence, but it did impliedly so hold, and that was the correct
conclusion.
“Generally, a premises possessor owes a duty of care 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.” Mann, 470 Mich at 328. However, that duty does not extend to protect against “open
and obvious” dangers unless the danger features “special aspects” making it “unreasonably
dangerous” or “effectively unavoidable.” Id. at 328, 331-332. Critically, whether a condition is
“open and obvious” must be evaluated strictly objectively based on the premises, not the
plaintiff. Id. at 328-329; Hoffner v Lanctoe, 492 Mich 450, 461; 821 NW2d 88 (2012).
An invitee’s interest in patronizing a business does not make a condition “effectively
unavoidable,” even if the invitee has a contractual right to enter the premises. Hoffner, 492 Mich
at 455-456. A condition is only “unreasonably dangerous” in narrow circumstances that do not
include common or avoidable conditions. Id. at 461-463. Our Supreme Court “has ‘reject[ed]
the prominently cited notion that ice and snow hazards are obvious to all and therefore may not
give rise to liability’ under any circumstances.” Id. at 463-464, quoting Quinlivan v Great
Atlantic & Pacific Tea Co, Inc, 395 Mich 244, 261; 235 NW2d 732 (1975) (alteration by the
Hoffner Court). However, as a practical matter, “absent special circumstances, 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.” Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 481; 760 NW2d 287 (2008).
Moreover, “the presence of wintery weather conditions and of ice on the ground elsewhere on
the premises render[s] the risk of [ice] ‘open and obvious such that a reasonably prudent person
would foresee the danger’ . . . .” Ragnoli v North Oakland-North Macomb Imaging, Inc, 500
Mich 967, 967; 892 NW2d 377 (2017).
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The trial court’s conclusion that our Supreme Court has rendered it completely impossible
in Michigan for snow and ice to ever not be open and obvious might be slightly overstated.
Nonetheless, we are constrained by precedent from our Supreme Court to conclude that the ice in
this case was open and obvious. 1
Plaintiff finally argues that the trial court erred in dismissing her negligence claims
against the individual defendants. We disagree. First, as noted, plaintiff’s claims sound in
premises liability. Second, plaintiff may not, merely by alleging negligence, avoid the general
rule that the principals of an LLC are not liable for the LLC’s acts, debts, or obligations unless
the corporate entity has been used as a mere instrumentality to commit a wrong or fraud that
harmed the plaintiff. Duray Development, LLC v Perrin, 288 Mich App 143, 151; 792 NW2d
749 (2010); Florence Cement Co v Vettraino, 292 Mich App 461, 469; 807 NW2d 917 (2011).
It appears undisputed that although the individual defendants own the property, their LLC leases
it and operates it and was therefore the entity in possession and control of the premises on the
night of the injury, irrespective of whether the individual defendants were involved in
performing operations. Plaintiff has not presented any reason to pierce the corporate veil, so
there is no legal basis for holding the individual defendants personally liable under any theory of
recovery.
Affirmed.
/s/ Mark T. Boonstra
/s/ Brock A. Swartzle
1
We note that the record includes an affidavit from plaintiff’s husband that in part states that he
and plaintiff arrived at the skating rink “after dark” and that “[a]t the time [they] arrived the
parking lot was dark and no lights illuminated the parking area.” However, plaintiff’s counsel
acknowledged at oral argument that nothing was alleged in plaintiff’s complaint about the
lighting, that plaintiff had not alleged a cause of action based on the lighting, and that the ice in
any event was hidden from view under the snow. We therefore need not consider whether the
degree of illumination in the parking lot was in any way actionable.
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