Terri S MacKlin v. Hjr Holding Company

STATE OF MICHIGAN
COURT OF APPEALS
TERRI S. MACKLIN, RICHARD MACKLIN, UNPUBLISHED
and JEFF MOYER, November 18, 2014
Plaintiffs-Appellants,
v No. 317397
Kent Circuit Court
HJR HOLDING COMPANY, RDR, INC, and LC No. 12-004156-NO
NAIWM PROPERTY MANAGEMENT, LLC,
Defendants/Third-Party Plaintiffs-
Appellees,
and
KWANTES LAWNCARE & LANDSCAPING,
LLC,
Third-Party Defendant-Appellee.
Before: M. J. KELLY, P.J., and BECKERING and SHAPIRO, JJ.
PER CURIAM.
In this suit to recover damages after a slip and fall, plaintiffs, Terri Macklin, Richard
Macklin, and Jeff Moyer, appeal by right the trial court’s order dismissing their claims under
MCR 2.116(C)(10).1 Because we conclude the trial court erred when it applied the open and
obvious danger doctrine to bar plaintiffs’ claims, we reverse and remand.
While at work in December 2009, Macklin noticed that the lot where she was parked
“glazed over,” “looked icy,” and became “really slippery.” At the end of her work day, she left
the building and managed to get to her car. She put her hand on the hood and inched toward the
1
Richard Macklin sued for loss of consortium and Jeff Moyer, who is a bankruptcy trustee, was
added as a plaintiff after Terri and Richard Macklin filed for bankruptcy protection. For ease of
reference, we shall use Macklin to refer to Terri Macklin alone.
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driver’s side door in order to avoid slipping. Thinking there was a bare spot nearby, she stepped
to reach it but slipped, fell, and was injured.
In May 2012, plaintiffs sued HJR Holding Company and RDR, Inc., which owned the
building and lot, for breaching their duty to maintain the parking lot in a safe condition. HJR
Holding and RDR then sued third-party defendant, Kwantes Lawncare & Landscaping, LLC, for
indemnification under their contract for snow and ice removal. Plaintiffs amended their
complaint to add defendant, NAIWM Property Management, LLC, which managed the building
where the fall occurred.
In February 2013, defendants2 moved for summary disposition on the grounds that they
had no duty to warn about or remedy the snow and ice on the parking lot because the snow and
ice constituted an open and obvious hazard and no exception applied. Plaintiffs argued in
response that, despite the obvious nature of the snow and ice, defendants still had a duty to
rectify the condition because it was effectively unavoidable. The trial court agreed with
defendants and dismissed plaintiffs’ claims under the open and obvious danger doctrine.
Plaintiffs now appeal.
This Court reviews de novo a trial court’s decision to dismiss under MCR 2.116(C)(10).
Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008).
A possessor of land has the duty to warn of known dangers and make the premises safe
for his or her invitees. Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 597; 614 NW2d
88 (2000). This duty includes an obligation to inspect the premises, make repairs, and warn
about any hazards. Id. A premises possessor does not generally have a duty to warn or protect
invitees from open and obvious dangers. Hoffner v Lanctoe, 492 Mich 450, 460-461; 821 NW2d
88 (2012). However, a premises possessor remains liable for damages arising from open and
obvious hazards where the hazard was effectively unavoidable. Id. at 463. A hazard is
effectively unavoidable when “a person, for all practical purposes, must be required or
compelled to confront a dangerous hazard.” Id. at 469. For example, an icy parking lot is
effectively unavoidable when an invitee must encounter the ice in order to leave the premises
possessor’s property. Attala v Orcutt, ___ Mich App ___; ___ NW2d ___ (2014) (Docket No.
315630). Another example is “a commercial building with only one exit for the general public
where the floor is covered with standing water.” Lugo v Ameritech Corp, Inc, 464 Mich 512,
518; 629 NW2d 384 (2001).
It is undisputed that Terri Macklin was an invitee and that the icy parking lot constituted
an open and obvious danger. The only dispute concerns whether the icy lot was effectively
unavoidable. When examined in the light most favorable to plaintiffs, Latham, 480 Mich at 111,
a reasonable jury could conclude from the evidence that Macklin was compelled to encounter the
icy parking lot in order leave defendants’ premises. Macklin testified at her deposition that the
parking lot had “glazed over” and was “really slippery.” She had to hold onto the hood of her
2
Kwantes independently moved for summary disposition and concurred with the other
defendants’ motion.
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car and inch forward to move. Unlike a plaintiff who chooses to face a hazard despite having
other options, Macklin was trying to leave her place of work and go home. The evidence left
open a question whether she had alternate routes to get into her car. While the trial Court stated
that she could have entered through the passenger side, the photographs show that there is a
question of fact on that issue. Similarly, there is a question of fact as to whether Macklin could
have avoided the hazard by choosing a different parking spot when she first arrived. Because a
reasonable jury could find that Macklin was compelled to encounter the icy parking lot, the trial
court erred when it determined that the open and obvious danger doctrine barred plaintiffs’
claims. See Lugo, 464 Mich at 518.
Reversed and remanded for further proceedings. We do not retain jurisdiction. As the
prevailing parties, plaintiffs may tax their costs. MCR 7.219(A).
/s/ Michael J. Kelly
/s/ Jane M. Beckering
/s/ Douglas B. Shapiro
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