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
KENNETH NATHAN, the Chapter 7 Trustee of the FOR PUBLICATION
Bankruptcy Estate of LORETTA CHARLES, August 4, 2022
9:05 a.m.
Plaintiff-Appellee,
v No. 357420
Macomb Circuit Court
DAVID LEADER MANAGEMENT, INC, and LC No. 2020-003180-NO
BRISTOL VILLAGE ASSOCIATES LP, doing
business as BRISTOL VILLAGE APARTMENTS,
Defendants-Appellants.
Before: SHAPIRO, P.J., and RICK and GARRETT, JJ.
GARRETT, J.
Loretta Charles slipped and fell on snow or ice after exiting one of defendants’ apartment
buildings. Plaintiff brought suit against defendants, asserting claims of premises liability and
ordinary negligence.1 The trial court denied defendants’ motion for summary disposition brought
under MCR 2.116(C)(10) (no genuine issue of material fact). We agree with defendants that
plaintiff’s claim sounds exclusively in premises liability, such that the negligence claim should be
dismissed. However, plaintiff’s premises liability claim may proceed because there remains a
question of fact whether the condition that Charles confronted was effectively unavoidable and
whether defendants’ breach of a duty caused Charles’s injuries. Accordingly, we affirm in part,
reverse in part, and remand for proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL HISTORY
In February 2020, Loretta Charles served as the caretaker for her elderly mother, who lived
at Bristol Village. On the morning of February 27, 2020, Charles left her mother’s apartment to
go to an appointment with her attorney. It had snowed the day before, and Charles testified that it
1
Plaintiff Kenneth Nathan, filing suit on Charles’s behalf, is the trustee for Charles’s bankruptcy
estate.
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was still snowing that morning. The apartment building had an exit in both the front and back.
The walkways leading from the front and back exits were both completely covered with ice.
Charles attempted to get to the street by walking in the snow-covered grass alongside the front
walkway, but she slipped and fell after putting her right foot down.
Plaintiff brought suit against defendants for premises liability and ordinary negligence,
alleging that Charles slipped and fell on ice leaving the apartment building because defendants
negligently failed to salt and shovel the entranceway. Following discovery, defendants moved for
summary disposition. Defendants argued that plaintiff’s claim sounded exclusively in premises
liability, and that the premises liability should be dismissed because plaintiff failed to establish
causation and the claim was barred by the open and obvious doctrine. The trial court denied
defendants’ motion, concluding that Charles’s step down from the porch to avoid the icy sidewalk
was itself a dangerous condition and that whether the condition was “unavoidable and
unreasonably dangerous” was a fact question for the jury. This appeal followed by leave granted.2
II. ORDINARY NEGLIGENCE CLAIM
Defendants first argue that plaintiff’s claim sounds exclusively in premises liability, such
that the trial court should have dismissed the ordinary negligence claim raised in plaintiff’s
complaint.
Michigan law distinguishes between claims of ordinary negligence and premises liability.
Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 692; 822 NW2d 254 (2012). “If the
plaintiff’s injury arose from an allegedly dangerous condition on the land, the action sounds in
premises liability rather than ordinary negligence; this is true even when the plaintiff alleges that
the premises possessor created the condition giving rise to the plaintiff’s injury.” Buhalis, 296
Mich App at 692. However, an ordinary negligence claim may be brought “for the overt acts of a
premises owner on his or her premises.” Kachudas v Invaders Self Auto Wash, Inc, 486 Mich 913,
914; 781 NW2d 806 (2010), citing Laier, 266 Mich App 482.
Plaintiff rests his ordinary negligence claim on the fact that defendants’ employees did not
sufficiently apply a salting agent to the walkways or clear the drifting snow. These factual
allegations relate to the creation of a dangerous condition on the premises caused by defendants’
failure to act, and they do not support an independent claim for ordinary negligence. In Jeffrey-
Moise v Williamsburg Towne Houses Coop, Inc, 336 Mich App 616, 621; 971 NW2d 716 (2021),
a similar case involving a slip-and-fall on an icy community walkway, we held that the plaintiff’s
claim sounded exclusively in premises liability:
Plaintiff alleges that a condition on defendant’s land, i.e., a patch of black ice on
the sidewalk, constituted a dangerous condition on the property that gave rise to her
injury. Because plaintiff’s claim is based on defendant’s duty as the possessor of
the land on which she fell and not on defendant’s ability to conform to a particular
standard of care, we treat plaintiff’s claim as one of premises liability. Although
2
Nathan v David Leader Mgt, Inc., unpublished order of the Court of Appeals, entered September
16, 2021 (Docket No. 357420).
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plaintiff alleges that the dangerous condition was created by the actions of
defendant or its employees—or more accurately, their failure to act—that allegation
does not transform a premises-liability action into one of ordinary negligence.
[Jeffrey-Moise, 336 Mich App at 625 (citation omitted).]
This reasoning applies equally to plaintiff’s allegations in the present case. Accordingly, plaintiff’s
complaint sounds exclusively in premises liability, and defendants were entitled to summary
disposition on plaintiff’s claim of ordinary negligence.
III. OPEN AND OBVIOUS DOCTRINE
Defendants next argue that the trial court erred by not dismissing plaintiff’s premises
liability claim because the icy condition was open and obvious and no special aspects made the
condition effectively unavoidable or unreasonably dangerous.
This Court reviews a trial court’s decision on a motion for summary disposition made under
MCR 2.116(C)(10) de novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003).
Under MCR 2.116(C)(10), the party moving for summary disposition is entitled to judgment as a
matter of law when, “[e]xcept as to the amount of damages, there is no genuine issue as to any
material fact.” The reviewing court considers affidavits, pleadings, depositions, and other
evidence in the light most favorable to the non-moving party. Maiden v Rozwood, 461 Mich 109,
120; 597 NW2d 817 (1999). “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 v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
“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). Whether a landowner owes a duty to
a visitor depends on that visitor’s status as either a trespasser, licensee, or invitee. Stitt v Holland
Abundant Life Fellowship, 462 Mich 591, 596; 614 NW2d 88 (2000). A premises owner owes the
greatest duty of care to an invitee. Id. at 597.3
3
It is undisputed that Charles was an invitee with respect to the duty defendants owed her because
she was visiting her mother, one of defendants’ tenants. “[T]enants are invitees of the landlord
while in the common areas” because the landlord has “exclusive possession of the common areas”
and authorizes tenants to use them in exchange for rent. Stanley v Town Square Co-op, 203 Mich
App 143, 147; 512 NW2d 51 (1993). A landlord also generally gives “tenants the right to invite
others onto the property,” and therefore “the same duty that a landlord owes to its tenants is also
owed to their guests.” Id. at 148. Consequently, as to the safety of the walkways exiting the
apartment building, defendants owed Charles a duty as an invitee. The duty owed by a landlord
to a tenant and the tenant’s visitor in common areas is distinct from the duty that the tenant
personally owes to their social guests. See Stitt, 462 Mich at 596 (explaining that social guests are
typically licensees who assume ordinary risks associated with their visit).
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“In general, 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, this
duty generally does not extend to open and obvious dangers. Id. A condition is open and obvious
if “an average user with ordinary intelligence [would] have been able to discover the danger and
the risk presented upon casual inspection.” Novotney v Burger King Corp, 198 Mich App 470,
475; 499 NW2d 379 (1993). This inquiry is objective, focusing on “whether a reasonable person
in the plaintiff’s position would have foreseen the danger, not whether the particular plaintiff knew
or should have known that the condition was hazardous.” Slaughter v Blarney Castle Oil Co, 281
Mich App 474, 479; 760 NW2d 287 (2008). “[A]bsent 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.” Id. at 481. For example, this Court held “as a matter of law that, by its very nature, a
snow-covered surface presents an open and obvious danger because of the high probability that it
may be slippery.” Ververis v Hartfield Lanes (On Remand), 271 Mich App 61, 67; 718 NW2d
382 (2006).
The snow-covered grass surface where Charles fell was an open and obvious danger.
Charles testified that she observed that the walkway was completely iced over, and the grass
alongside it was covered with three to four inches of snow. Therefore, a reasonable person in
Charles’s position would have discovered the risk presented by a visibly snow-covered surface
upon casual inspection. And a snow-covered surface necessarily constitutes an open and obvious
danger. See Ververis, 271 Mich App at 67.
That does not end our inquiry, however. Although a premises owner generally has no duty
to protect an invitee from open and obvious conditions, liability may attach when “special aspects”
of the condition present an unreasonable risk of harm. Lugo, 464 Mich at 517. Put differently, “if
the condition is open and obvious, a plaintiff who is injured by the condition may avoid summary
disposition only if there are special aspects to the condition.” Hoffner v Lanctoe, 492 Mich 450,
464; 821 NW2d 88 (2012).
Our Supreme Court has identified two classes of special aspects of an open and obvious
danger that could give rise to liability: “when the danger is unreasonably dangerous or when the
danger is effectively unavoidable.” Id. at 463. An open and obvious condition is effectively
unavoidable when an individual, “for all practical purposes, must be required or compelled to
confront a dangerous hazard.” Id. at 469. “As a parallel conclusion, situations in which a person
has a choice whether to confront a hazard cannot truly be unavoidable, or even effectively so.” Id.
In this case, the parties disagree about whether the condition that Charles confronted was
effectively unavoidable.
In Lugo, 464 Mich at 518, our Supreme Court provided a hypothetical illustration of an
effectively unavoidable danger: “a commercial building with only one exit for the general public
where the floor is covered with standing water,” such that “a customer wishing to exit the store
must leave the store through the water.” More than a decade later, the Court applied this special
aspect exception in Hoffner, 492 Mich at 469, a case involving a plaintiff’s claim that the icy
sidewalk at the entrance to a fitness center was effectively unavoidable because she had a
contractual right to enter the gym as a paid member. Our Supreme Court rejected this attempted
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application of the unavoidability exception, explaining that “[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.
Most recently, our Supreme Court applied the unavoidability exception to a case involving
an employee who confronted an ice-covered parking lot while attempting to enter her workplace.
Estate of Livings v Sage’s Investment Group, LLC, 507 Mich 328, 332-333; 968 NW2d 397 (2021).
The Livings Court held:
[A]n open and obvious condition can be deemed effectively unavoidable when a
plaintiff must confront it to enter his or her place of employment for work purposes.
However, in assessing this question, it is still necessary to consider whether any
alternatives were available that a reasonable individual in the plaintiff’s
circumstances would have used to avoid the condition. [507 Mich at 333.]
The Court explained that this fact-dependent analysis focused objectively “on whether a
reasonable premises possessor in the defendant’s circumstances could reasonably foresee that the
employee would confront the hazard despite its obviousness.” Id. at 346-347. But “[i]f an
employee could have avoided the condition through the use of due care under the circumstances,
then the condition was not effectively unavoidable.” Id. For instance, the availability of a safe
alternative path might render the dangerous condition avoidable. Id. However, because it is
“reasonable to anticipate that a person will proceed to encounter a known or obvious danger for
purposes of his or her work,” a court cannot conclude that a hazard was avoidable “simply because
the employee could have elected to skip work or breach other requirements of his or her work.”
Id. at 345, 347.
Since Livings, this Court has had a few opportunities to interpret and apply the
unavoidability exception to cases involving different employment situations. In Bowman v
Walker, ___ Mich App ___; ___ NW2d ___ (2022); slip op at 1, a tenant slipped and fell on ice
while leaving her apartment to go to work. We recognized that “the same principles [from Livings]
apply to a tenant injured while encountering a hazard when leaving his or her place of residence
in order to travel to work.” Id. at 5. Therefore, we held:
Because plaintiffs have presented sufficient evidence to show that Bowman
confronted the snow and ice to travel from her residence to her workplace for
purposes of her employment, and because defendants have not shown as a matter
of law that any reasonable alternative would have allowed Bowman to avoid the
hazard, there is a genuine question of material fact as to whether the condition was
effectively unavoidable. [Id.]
Further, in support of his argument, plaintiff cites this Court’s recent decision in Wezalis v
Rosenberg, unpublished per curiam opinion of the Court of Appeals, issued January 27, 2022
(Docket No. 347613). Although “unpublished opinions are not binding under the rule of stare
decisis, a court may nonetheless consider such opinions for their instructive or persuasive value,”
and we choose to do so here. Cox v Hartman, 322 Mich App 292, 307; 911 NW2d 219 (2017). In
Wezalis, unpub op at 1, the plaintiff had an appointment at the defendant’s home to handle a claim
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involving personal property insurance. After a large snowstorm occurred the night before the
appointment, the plaintiff attempted to postpone, but the defendant insisted that the plaintiff keep
the appointment. Id. at 2. Despite the fact that the plaintiff could have still chosen to reschedule
the appointment, the plaintiff elected to accept the job and drive to the defendant’s home. Id.
Upon arriving at the defendant’s home for the appointment, the plaintiff slipped and fell on either
snow or ice on the driveway. Id. at 5. The evidence established that there was no alternative route
for the plaintiff to avoid the dangerous condition and reach the house. Id. Although the plaintiff
was not “in a strict legal sense” an “employee” of the defendant, the analysis from Livings still
applied. Id. Accordingly, we held that there was a genuine issue of material fact whether the
hazard on the driveway was effectively unavoidable.
This case presents another variation on the facts presented in Livings, Bowman, and
Wezalis. Here, viewing the evidence in the light most favorable to plaintiff, Charles slipped and
fell confronting a dangerous condition while leaving her place of employment. Charles testified
that she was her mother’s caretaker and had been staying at her mother’s apartment for the two
nights before the fall. While Charles was not her mother’s employee, in the strict legal sense, a
fact-finder could reasonably conclude that she was serving in an employment capacity. Taking
care of a loved one, even when unpaid, shares many characteristics with traditional employment.
And it is not this Court’s role to “sit in judgment of the social value of various jobs.” Livings, 507
Mich at 347 n 16. Therefore, drawing all reasonable inferences in plaintiff’s favor, Charles was
present at her mother’s apartment for work purposes.
Next, defendants argue that Charles had a viable path to avoid any dangerous wintry
conditions because plaintiff has not established that “the snow in this instance was so severe as to
preclude it is an alternate route.” Viewing the evidence in the light most favorable to plaintiff, the
grassy path that Charles chose was not a safe alternate route under the circumstances. The
evidence of snow accumulation on the grass, together with testimony from defendants’
maintenance employee that snow was known to drift towards the building where Charles exited,
creates a genuine issue of material fact as to whether Charles could have taken a “different path”
to avoid the condition. See Livings, 507 Mich at 347. Nor does the evidence establish as a matter
of law that Charles could have “avoided the condition through the use of due care under the
circumstances.” See id. All other routes exiting the building were covered in ice. Therefore, a
fact-finder could reasonable conclude that Charles needed to confront this hazard to leave her place
of employment.
Ultimately, the applicability of the unavoidability exception in this case turns on whether
Charles had any reasonable alternative to avoid the hazard. Defendants argue that Livings and
Wezalis do not apply here because Charles fell when she was leaving her mother’s apartment, and
she was not going to work. Defendants contend that Charles failed to present any evidence of an
adverse consequence that she would have suffered had she waited for weather conditions to
improve, or that she could not reschedule or conduct the appointment remotely.
First, the distinction between arriving and leaving is largely a distinction without a
difference, as this Court correctly explained in Bowman. Whether an individual is arriving at work
or leaving their home to head to work, the analysis from Livings applies. See Bowman, ___ Mich
App at ___; slip op at 5. The mere fact that Charles was leaving rather than entering the apartment
building is of no matter. Second, we believe there is a question of fact as to whether “a reasonable
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premises possessor in [defendants’] circumstances could reasonably foresee that [Charles] would
confront the hazard despite its obviousness.” See Livings, 507 Mich at 346. Under this objective
inquiry, “a premises possessor might expect a reasonable person to confront a hazard to enter his
or her workplace.” Id. at 346 n 14. The same logic applies to exiting the workplace. In this case,
Charles was attempting to exit her mother’s apartment—where she had been caretaking—in order
to attend to an appointment with an attorney. A landlord cannot expect that all of its tenants, or
their caretakers, will be able to be remain inside on snowy days and avoid potentially dangerous
wintry conditions. See Livings, 507 Mich at 345.
Moreover, defendants are correct that plaintiff presented no evidence regarding any
attempts to postpone her appointment with her attorney or the consequences that would have
resulted had Charles missed the appointment. But it cannot be the case that a reasonable person
must wait indefinitely to leave their place of employment until conditions have improved before
confronting an open and obvious danger. Just as the ability to skip work is not a “reasonable
alternative” to avoid a dangerous condition, Livings, 507 Mich at 347, the ability to stay at work
may not be a reasonable alternative under the circumstances. Here, considering that Charles had
been staying at her mother’s apartment for two nights in a caretaking role and needed to exit the
building to attend an appointment with her attorney, a reasonable jury could infer that no
“alternatives were available that a reasonable individual in the plaintiff’s circumstances would
have used to avoid the condition.”4 Accordingly, under the totality of the circumstances, there is
a question of fact for the jury regarding whether the snow-covered path was effectively
unavoidable. The trial court did not err by concluding that plaintiff’s claim of premises liability
was not barred under the open-and-obvious doctrine.
IV. CAUSATION
Lastly, defendants argue that the premises liability claim should be dismissed for failure to
prove the element of causation.
As previously noted, one element of negligence that a plaintiff must prove in a premises
liability action is that the defendant’s breach of a duty caused the plaintiff’s injuries. See Benton,
270 Mich App at 440. For this analysis, “two causation concepts work in tandem.” Estate of
Taylor by Taylor v Univ Physician Group, 329 Mich App 268, 278; 941 NW2d 672, 677 (2019).
First, a plaintiff must demonstrate that ‘but for’ the defendant’s negligence, the
plaintiff’s injury would not have occurred. Once a plaintiff produces the factual
support establishing a logical sequence of cause and effect, the plaintiff must also
come forward with evidence supporting that the actual cause was proximate,
meaning that it created a foreseeable risk of the injury the plaintiff suffered. [Id.]
4
We also note that the facts of this case are far more analogous to Livings than to Hoffner. Charles
was not confronting the snowy and icy conditions as part of her “contractual right to use[] a
business’s services,” nor did she encounter the hazard for some recreational purpose. See Hoffner,
492 Mich at 472. Rather, Charles confronted the condition leaving her place of employment.
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Put differently, proximate cause considers whether the harm caused to the plaintiff “was the
general kind of harm the defendant negligently risked.” Ray v Swager, 501 Mich 52, 64; 903
NW2d 366 (2017) (quotation marks and citation omitted). A plaintiff may rely on circumstantial
evidence to establish causation, but the circumstantial proof “must facilitate reasonable inferences
of causation, not mere speculation.” Skinner v Square D Co, 445 Mich 153, 163-164; 516 NW2d
475 (1994).
Charles presented sufficient evidence that defendants’ failure to diminish the hazard of ice
on the walkways led her to step down onto the snow-covered grass, and therefore was the factual
and proximate cause of her fall and injuries. Plaintiff’s complaint alleges that Charles slipped and
fell on ice in the common area entranceway after defendants failed to salt and maintain a safe
access point. Further, Charles testified that she fell immediately upon putting her right foot down
onto the snow-covered grass. Although we agree with defendants that Charles’s testimony was
inconsistent and imprecise at times, the totality of her testimony provided a sufficient basis to infer
that Charles slipped and fell on snow or ice, and that Charles only took the path she did because
of defendants’ alleged negligent conduct in the failure to remediate ice on the walkway. For
instance, after Charles testified at her deposition that she did not know “exactly what happened”
to cause her fall, the following exchange occurred:
Q. And you don’t know whether or not the snow caused you to fall down;
is that correct?
A. No, that’s not correct. I fell down. I don’t remember exactly – pinpoint
second of it all. I do know that I put my right foot down, and then I fell on all fours.
Q. But, so what about the snow made you fall down?
A. When I put my right foot down on the grass portion, I fell. Now, what
happened? I can’t say it was the ice. I can’t say it was the snow. I don’t know what
was completely up under there. I did fall down on all fours once I put that right
foot down.
Drawing reasonable inferences from this testimony, Charles could not say whether it was the ice
or the snow that caused her fall, but she never claimed that the ice and snow were unrelated to the
cause of her fall.
Further, evidence from a snow report and the testimony of defendants’ maintenance
employees suggests that not enough salting agent was used on February 26, 2020, the day before
Charles’s fall. The maintenance employees both confirmed that the snow report revealed three
chloride bags had been used on February 26, but at least eight bags were needed to salt the entire
apartment complex. Under the circumstances, it was foreseeable that the failure to use the
necessary amount of salting agent on the apartment entranceways would lead individuals exiting
the buildings to either slip and fall on the ice, or to seek a path around the ice, which included
walking on the adjacent snow-covered grass. The snow report also indicated that it was snowing
overnight on February 26 into February 27, and that the snow was blowing from high winds. One
employee testified that the building where Charles exited experienced drifting snow and that he
saw some drifting snow on the sidewalk when he went to check the building after being informed
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of Charles’s fall. Viewing all of this evidence in the light most favorable to plaintiff, there is non-
speculative evidence as to causation “upon which reasonable minds might differ,” precluding
summary disposition. See West, 469 Mich at 183.
Defendants also assert that while it is theoretically possible that Charles slipped on ice, it
was equally plausible that Charles—due to her arthritis—stumbled, tripped, or her leg buckled.
But these alternative causes for Charles’s fall lack evidentiary support themselves. We decline to
accept these speculative alternative theories as a way to conclude that plaintiff has not met his
burden at the summary disposition stage on causation. Accordingly, because reasonable inferences
drawn from plaintiff’s evidence create a genuine issue of material fact as to causation, the trial
court did not err by denying defendants’ motion for summary disposition.
V. CONCLUSION
Plaintiff’s claim sounds exclusively in premises liability, and defendants are entitled to
summary disposition on plaintiff’s claim of ordinary negligence. However, plaintiff’s premises
liability claim can proceed because there is a genuine issue of material fact whether the dangerous
condition was effectively unavoidable and whether defendants’ breach of a duty caused Charles’s
injuries.
Affirmed in part, reversed in part, and remanded for proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Kristina Robinson Garrett
/s/ Douglas B Shapiro
/s/ Michelle M. Rick
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