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
EDWARD CASTLEBERRY, UNPUBLISHED
January 27, 2022
Plaintiff-Appellant,
v No. 356033
Wayne Circuit Court
APPLEBEE’S NEIGHBORHOOD BAR & GRILL LC No. 19-004175-NO
and TEAM SCHOSTAK FAMILY
RESTAURANTS, LLC,
Defendants-Appellees.
Before: GADOLA, P.J., and MARKEY and MURRAY, JJ.
PER CURIAM.
In this premises liability action, plaintiff appeals by right the trial court’s order granting
summary disposition in favor of defendants, Applebee’s Neighborhood Bar & Grill (Applebee’s)
and Team Schostak Family Restaurants, LLC. Plaintiff contends on appeal that the trial court
erred by concluding as a matter of law that the alleged hazardous condition was open and obvious
and not effectively unavoidable. We affirm.
I. BACKGROUND
This case arises from a slip and fall that occurred on December 11, 2017. On that date,
plaintiff and his wife arrived at an Applebee’s restaurant in Southgate, Michigan, at around 11:00
p.m. for dinner. They parked in a handicapped space near the entrance and stayed at the restaurant
for approximately one hour.
Plaintiff and his wife both testified that weather conditions were hazardous on the night in
question. Plaintiff specifically stated that the conditions when arriving at the restaurant “were
pretty bad,” with snow having accumulated in the parking lot to the point where the pavement was
no longer visible. Although he acknowledged that neither he nor his wife had difficulty traversing
the snow to enter the premises, plaintiff noted that his car was essentially surrounded by snow
when they parked at the restaurant. Plaintiff also testified that the conditions became worse while
they were in the restaurant and that he and his wife watched more snow fall during their meal.
According to plaintiff, by the time that they were ready to leave the restaurant at around midnight,
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“[i]t was really coming down, it was a blizzard actually.” Plaintiff further observed upon exiting
Applebee’s that the sidewalk was completely covered in ice, slush, and snow, leaving no clear path
to the car. He did not see any salt on the sidewalk or surrounding areas.
While plaintiff stated that it was dark outside at the time that they left Applebee’s, he also
acknowledged that the lighting in the area was adequate. After exiting the restaurant and on the
way to his parked car, plaintiff slipped and fell on the sidewalk near the curb, landing on his back
in the parking lot. Plaintiff was helped off the ground by Shirley Tyler, a manager at the restaurant.
Plaintiff did not receive any medical treatment at the scene. But before plaintiff and his wife drove
off, he heard Tyler state that “maybe she should have put some salt on the sidewalk.”
Plaintiff filed an amended complaint on May 7, 2019,1 alleging that both defendants were
responsible for the dangerous condition of the premises and liable for plaintiff’s injuries. Plaintiff
alleged one count of negligence against each defendant, claiming that both defendants failed in
their duty to protect business invitees from injury.
On June 16, 2020, defendants moved for summary disposition pursuant to MCR
2.116(C)(10), arguing that they were entitled to judgment as a matter of law because the icy
pavement was an open and obvious condition of which plaintiff was aware. Plaintiff countered
that the hazard was not open and obvious because the incident occurred at night and therefore
plaintiff could not see the ice. Plaintiff also asserted that the open and obvious danger doctrine
was inapplicable because the icy sidewalk was an unavoidable hazard.
The trial court dispensed with oral argument and granted defendants’ motion for summary
disposition, concluding in its written order that under Ververis v Hartfield Lanes, 271 Mich App
61; 718 NW2d 382 (2006), the condition was open and obvious with no special aspects. This
appeal followed.
II. STANDARD OF REVIEW AND GOVERNING SUMMARY DISPOSITION PRINCIPLES
We review de novo a trial court’s decision on a motion for summary disposition. El-Khalil
v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). Summary disposition is
appropriate under MCR 2.116(C)(10) when, “[e]xcept as to the amount of damages, there is no
genuine issue as to any material fact, and the moving party is entitled to judgment or partial
judgment as a matter of law.” A motion for summary disposition brought under MCR
2.116(C)(10) “tests the factual sufficiency of a claim.” El-Khalil, 504 Mich at 160. Courts must
consider all the evidence in a light most favorable to the nonmoving party. Id. The motion may
only be granted when there is no genuine issue of material fact. Id. “A genuine issue of material
fact exists when the record leaves open an issue upon which reasonable minds might differ.”
Johnson v VanderKooi, 502 Mich 751, 761; 918 NW2d 785 (2018) (quotation marks, citation, and
brackets omitted).
1
Plaintiff’s original complaint contained the same general allegations, but only named Applebee’s
as defendant; the amended complaint was filed to include both defendants in the action.
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The moving party may satisfy its burden under MCR 2.116(C)(10) through the submission
of affirmative evidence that negates an essential element of the nonmoving party’s cause of action
or by demonstrating to the court that the nonmoving party’s evidence is insufficient to establish an
essential element of the party’s claim. Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 7; 890 NW2d
344 (2016). Once this initial burden is met, the nonmovant must “set forth specific facts showing
that a genuine issue of material fact exists” and “may not rely on mere allegations or denials in
pleadings.” Id. (quotation marks and citations omitted). “If the opposing party fails to present
documentary evidence establishing the existence of a material factual dispute, the motion is
properly granted.” Id. (quotation marks and citations omitted). We review de novo issues of law.
Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 477; 760 NW2d 287 (2008).
III. ANALYSIS
Plaintiff argues on appeal that the trial court erred by finding as a matter of law that the
hazardous condition was open and obvious and not effectively unavoidable. We disagree.
Our Supreme Court in Hoffner v Lanctoe, 492 Mich 450, 459-460; 821 NW2d 88 (2012),
provided the following analytical overview with respect to the law governing premises liability,
explaining:
The law of premises liability in Michigan has its foundation in two general
precepts. First, landowners must act in a reasonable manner to guard against harms
that threaten the safety and security of those who enter their land. Second, and as a
corollary, landowners are not insurers; that is, they are not charged with
guaranteeing the safety of every person who comes onto their land. These principles
have been used to establish well-recognized rules governing the rights and
responsibilities of both landowners and those who enter their land. Underlying all
these principles and rules is the requirement that both the possessors of land and
those who come onto it exercise common sense and prudent judgment when
confronting hazards on the land. These rules balance a possessor’s ability to
exercise control over the premises with the invitees’ obligation to assume personal
responsibility to protect themselves from apparent dangers.
The starting point for any discussion of the rules governing premises
liability law is establishing what duty a premises possessor owes to those who come
onto his land. With regard to invitees,[2] a landowner owes a duty to use reasonable
care to protect invitees from unreasonable risks of harm posed by dangerous
conditions on the owner’s land. Michigan law provides liability for a breach of this
duty of ordinary care when the premises possessor knows or should know of a
dangerous condition on the premises of which the invitee is unaware and fails to
fix the defect, guard against the defect, or warn the invitee of the defect. [Citations
omitted.]
2
There is no dispute in the instant case that plaintiff was an invitee.
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Consideration of whether a danger or defect is open and obvious is an integral component
of defining the duty owed by an invitor to an invitee. Hoffner, 492 Mich at 460. A possessor of
land does not owe a duty to protect or warn an invitee relative to dangers that are open and obvious.
Id. This is “because such dangers, by their nature, apprise an invitee of the potential hazard, which
the invitee may then take reasonable measures to avoid.” Id. at 461. “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.” Id. The required analysis involves
examination of the objective nature of the condition of the premises. Id. It is well established that
wintry conditions can be characterized as open and obvious, and “Michigan courts thus ask
whether the individual circumstances, including the surrounding conditions, render a snow or ice
condition open and obvious such that a reasonably prudent person would foresee the danger.” Id.
at 464.3
3
We take note of several Supreme Court orders issued over the years regarding icy conditions. In
Ragnoli v North Oakland-North Macomb Imaging, Inc, 500 Mich 967 (2017), our Supreme Court,
reversing a decision by this Court, ruled that “[t]he trial court correctly held that, notwithstanding
the low lighting in the parking lot, the presence of wintery weather conditions and of ice on the
ground elsewhere on the premises rendered the risk of a black ice patch ‘open and obvious such
that a reasonably prudent person would foresee the danger’ of slipping and falling in the parking
lot.” (Citation omitted.) In Cole v Henry Ford Health Sys, 497 Mich 881 (2014), the Supreme
Court similarly stated:
Here, the so-called “black ice” was detected by four other witnesses who
viewed the premises after the plaintiff’s accident. There were several patches of ice
evident in the area where the plaintiff fell. In addition, there were numerous indicia
of a potentially hazardous condition being present, including seven inches of snow
on the ground, some precipitation the previous day, and a recent thaw followed by
consistent temperatures below freezing. A reasonably prudent person would foresee
the danger of icy conditions on the mid-winter night the plaintiff’s accident
occurred. [Citation omitted.]
In Janson v Sajewski Funeral Home, Inc, 486 Mich 934, 935 (2010), our Supreme Court ruled as
follows:
“[B]lack ice” conditions [are rendered] open and obvious when there are
indicia of a potentially hazardous condition, including the specific weather
conditions present at the time of the plaintiff’s fall. Here, the slip and fall occurred
in winter, with temperatures at all times below freezing, snow present around the
defendant’s premises, mist and light freezing rain falling earlier in the day, and light
snow falling during the period prior to the plaintiff’s fall in the evening. These
wintry conditions by their nature would have alerted an average user of ordinary
intelligence to discover the danger upon casual inspection. [Citations and quotation
marks omitted.]
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An exception to the duty owed for open and obvious dangers arises when special aspects
of a condition make even an open and obvious risk unreasonable. Hoffner, 492 Mich at 461.
Special aspects exist when an open and obvious hazard remains unreasonably dangerous or when
it is effectively unavoidable. Id. at 461-463. The Hoffner Court further observed:
[W]hen confronted with an issue concerning an open and obvious hazard,
Michigan courts should hew closely to the principles previously discussed. It bears
repeating that exceptions to the open and obvious doctrine are narrow and designed
to permit liability for such dangers only in limited, extreme situations. Thus, an
“unreasonably dangerous” hazard must be just that—not just a dangerous hazard,
but one that is unreasonably so. And it must be more than theoretically or
retrospectively dangerous, because even the most unassuming situation can often
be dangerous under the wrong set of circumstances. An “effectively unavoidable”
hazard must truly be, for all practical purposes, one that a person is required to
confront under the circumstances. A general interest in using, or even a contractual
right to use, a business’s services simply does not equate with a compulsion to
confront a hazard and does not rise to the level of a “special aspect” characterized
by its unreasonable risk of harm. [Id. at 472-473 (citations omitted; emphases in
original).]
It is only those special aspects that give rise to a uniquely high likelihood of harm or severity of
harm that can serve to remove a condition from the open and obvious danger doctrine. Id. at 472
n 38.
In this case, plaintiff first argues that a question of fact remains concerning whether the
snowy and icy sidewalk was indeed open and obvious. While acknowledging that caselaw
generally holds that snowy and icy conditions, without more, are considered open and obvious,
plaintiff asserts that the hazardous condition here was not merely the presence of snow and ice but
was also affected by inadequate lighting and the curb’s obscured change in level. Given these
additional factors, plaintiff contends that the trial court erred by deciding as a matter of law that
plaintiff should have discovered the danger. Plaintiff specifically relies on Blackwell v Franchi,
318 Mich App 573; 899 NW2d 415 (2017), remanded in part on other grounds 502 Mich 918
(2018), to support the proposition that inadequate lighting can be sufficient to impose liability for
a hazard that would otherwise have been open and obvious.
We hold that there is no genuine issue of material fact that the snowy and icy sidewalk on
which plaintiff slipped objectively constituted an open and obvious danger. The panel in Blackwell
did indicate that the absence of lighting can be a factor to consider in analyzing whether an alleged
hazardous condition is open and obvious. Id. at 578. But despite plaintiff’s contention otherwise,
the facts here show that the lighting in the restaurant parking lot was indeed adequate and did not
contribute to plaintiff’s fall.
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The record contains just a few references to the lighting that existed in the parking lot at
the time of the incident. Tyler’s deposition testimony confirmed that the area was lit both with
exterior lighting on the building and light poles throughout the parking lot. Plaintiff’s responses
to defendants’ interrogatories also described the lighting as “[a]dequate,” and plaintiff did not cite
lighting as being a contributing factor to the fall. Plaintiff’s deposition, however, included the
following testimonial exchange:
Q. How dark was it?
A. Well, it was midnight, it was dark.
We cannot conclude that this snippet of testimony, even when viewed in a light most
favorable to plaintiff, is sufficient to create a factual dispute with respect to whether inadequate
lighting contributed to plaintiff’s fall or to whether inadequate lighting precluded a finding that the
hazard was open and obvious. Plaintiff’s deposition testimony simply indicated that it was dark
outside because it was midnight; the testimony did not speak to whether the artificial lighting was
inadequate to see where plaintiff was walking, nor did the testimony indicate that inadequate
lighting was a cause of the slip and fall. Without more specific evidence demonstrating the claimed
inadequacy of the artificial lighting, a genuine issue of material fact has not been established. And
even were we to assume that plaintiff’s deposition testimony was sufficient to create a factual issue
regarding the lighting’s adequacy, we would note that plaintiff is not permitted to create factual
issues by contradicting his own prior damaging statements. See Downer v Detroit Receiving Hosp,
191 Mich App 232, 234; 477 NW2d 146 (1991) (“Parties may not create factual issues by merely
asserting the contrary in an affidavit after giving damaging testimony in a deposition.”).
This case must therefore be viewed as a typical wintry-condition case, which this Court
has repeatedly found to involve open and obvious hazards. See, e.g., Estate of Trueblood v P&G
Apartments, LLC, 327 Mich App 275, 287; 933 NW2d 732 (2019) (finding snowy and icy
pavement to be open and obvious because the existence of wintry conditions was readily
observable and the plaintiff admitted to seeing snow on the ground). In Estate of Trueblood, it had
been snowing throughout the day before the plaintiff’s fall; the plaintiff was aware of these wintry
conditions, and she admitted to seeing snow on the pavement when going outside. Id. Similar to
those facts, in the present case it had been snowing throughout the day; plaintiff admitted seeing
that the sidewalk was covered in snow before entering the restaurant, and he continued to watch
snow fall while he ate. Under these circumstances, a reasonably prudent person would have
anticipated the danger of slipping on an icy or snowy sidewalk.
Plaintiff suggests that this case is distinguishable from typical wintry-condition cases
because the snow was obscuring the curb’s change in level. We find no authority supporting that
such a condition is not open and obvious. Plaintiff’s contention is also unsupported by the facts
of the present case which show that plaintiff should have been aware of the curb’s levels despite
it being obscured by snow. This is because he was experienced in dealing with winter weather in
Michigan; he had apparently visited the same restaurant numerous times before this incident, and,
on the night in question, he had already successfully navigated the hazardous area when entering
the premises and would thus have known of the curb’s existence. The trial court, therefore, did
not err in concluding that the snowy and icy pavement on which plaintiff slipped was open and
obvious as a matter of law.
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Plaintiff also asserts that he presented sufficient evidence to create a question of fact
concerning whether the condition, even if deemed open and obvious as a matter of law, was
effectively unavoidable. Plaintiff stresses that the cases refusing to find snowy conditions
effectively unavoidable all involved plaintiffs who voluntarily chose to confront the hazard when
entering the premises. According to plaintiff, the instant case is distinguishable because he was
forced to confront the snowy and icy sidewalk in order to exit the restaurant. Although conceding
that he did observe snow when entering the building, plaintiff emphasizes how conditions
worsened while he was inside. He further argues that he had no option but to navigate the hazard
or else be trapped in a closing restaurant after midnight, thereby making the condition effectively
unavoidable. Plaintiff relies on Lugo v Ameritech Corp, Inc, 464 Mich 512, 518; 629 NW2d 384
(2001), wherein our Supreme Court provided the following example of an effectively-unavoidable
condition:
An illustration of such a situation might involve, for example, a commercial
building with only one exit for the general public where the floor is covered with
standing water. While the condition is open and obvious, a customer wishing to exit
the store must leave the store through the water. In other words, the open and
obvious condition is effectively unavoidable.
If we were to view plaintiff’s exit from the restaurant in isolation, it could be said that the
instant case is in line with Lugo’s example. There was only the single exit for plaintiff to leave
the restaurant, and he was therefore essentially required to traverse the hazard to return to his car.
But plaintiff was only “forced” to exit the restaurant because he decided just one hour earlier to
enter the premises and, in doing so, voluntarily confronted the same hazard. In Wilson v BRK, Inc,
328 Mich App 505, 513; 938 NW2d 761 (2019), this Court faced a similar argument, where the
plaintiff contended that a bar’s doorway step presented a dangerous condition to wheelchair-bound
patrons such as himself and was effectively unavoidable because that doorway was the only one
that he could use to exit the establishment, at which time he fell and was injured. The Wilson
panel, after a discussion of Hoffner and the Lugo hypothetical, held as follows:
We conclude that Hoffner dictates that we conclude that the . . . step was
avoidable because plaintiff was not compelled to patronize the bar and confront the
step. And with respect to Lugo, we note that there was no indication in the Court’s
hypothetical that the water in the building had been confronted by customers when
they first entered the building. Therefore, Lugo does not support plaintiff’s
argument. In sum, we affirm the trial court’s determination that as a matter of law,
no special aspects existed. [Wilson, 328 Mich App at 515-516.]
In this case, even assuming plaintiff accurately indicated that snow continued falling like
a blizzard while he was eating, we find it does not overcome the fact that plaintiff voluntarily
placed himself in the that situation. It had been snowing throughout the day when plaintiff arrived
at the restaurant, and the parking lot and sidewalk were already obscured by snow at that time.
Moreover, assuming, arguendo, that continued snowfall did increase the danger of the sidewalk in
the one hour from the time plaintiff entered the premises to the time that he left, plaintiff should
have anticipated this possibility when he willingly chose to enter the restaurant during a
snowstorm. Upon arriving at the restaurant and knowing the potential danger, plaintiff had the
choice to drive away and avoid the danger. Specifically, he could have avoided injury simply by
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returning home or patronizing a drive-through restaurant. In sum, we hold that the trial court did
not err in concluding as a matter of law that the snowy and icy pavement was not effectively
unavoidable.
We affirm. Having fully prevailed on appeal, defendants may tax costs under MCR 7.219.
/s/ Michael F. Gadola
/s/ Jane E. Markey
/s/ Christopher M. Murray
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