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### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

ESTATE OF ANNA KOETSIER, by TIMOTHY AVERILL, P ersonal R epresentative,

Plaintiff

- Appellant, UNPUBLISHED August 2, 2018

v No. 339284

Kent Circuit Court

IMMACULATE HEART OF MARY CATHOLIC SCHOOL, LC No. 16

- 004983

- NO

Defendant

- Appellee.

Before: H OEKSTRA

, P.J ., and M URPHY and M ARKEY , JJ.

P ER C URIAM

.

Plaintiff, Timothy Averill, as personal representative of the Estate of Anna Koetsier, appeals by r ight the trial court ’ s grant of summary disposition to defendant, Immaculate Heart of Mary Catholic School (IHM), pursuant to MCR 2.116(C)(10). The trial court found th at no genuine is sue of material fact existed whether the ice that formed on IHM ’ s asphalt driveway on which Koetsier slipped and fell w as an open and obvious hazard . The undisputed facts also showed that the icy drive possessed no special aspects to render it an unavoida ble hazard or uniquely dangerous. Consequently, the trial court grant ed defendant ’ s motion for summary disposition . We affirm

.

On January 14, 2016, 85

- year

- old Anna Koetsier slipped and fell on so

- called black ice on an asphalt driveway on IHM ’ s premises, while attempt ing to access IHM ’ s gym to watch her grandson play basketball. When she fell, her head struck the pavement in such a way that she suffered significant injuries . S he died the next morning as a result of those injuries. The only

w itnesses to Koetsier ’ s slip and fall and to the condition of IHM ’ s premises at the moment it happened were Koetsier ’ s daughter

- in

- law, Michelle Averill, and Koetsier ’ s grandson, Taylor Averill. Plaintiff filed this premis es liability action against IHM

. The primary issue before the trial court and on appeal is the applicability of the open and obvious danger doctrine. As noted,

t he trial court ruled that there was no genuine issue of material fact that the hazard presented by the black ice was open and o bvious without any special aspects

.

This Court reviews “ a trial court ’ s decision with regard to a motion for summary disposition de novo as a question of law. ” Ardt v Titan Ins Co , 233 Mich App 685, 688; 593- 2

- NW2d 215 (1999). “ In making this determinat ion, the Court reviews the entire record to determine whether defendant was entitled to summary disposition. ” Maiden v Rozwood , 461

Mic h 109, 118; 597 NW2d 817 (1999) . A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a claim

, i d . at 120 , and may be granted when , except with regard to the amount of damages, there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. In reviewing such a motion, a c ourt considers the pleadings, affidavits, depositions, admissions, and documentary evidence in a light

most favorable to the nonmoving party. Id

. “ A genuine issue of material fact exists when the record leaves open an issue on which reasonable minds coul d differ. ” Bennett v Detroit Police Chief , 274 Mich App 307, 317; 732 NW2d 164 (2006).

In this case, there is no dispute that Koetsier was an invitee, defined as a person who

enters another ’ s land on an invitation which carries with it an implied represen tation, assurance, or understanding that reasonable care has been used to prepare the premises and make it safe for

the invitee ’ s reception. Stitt v Holland Abundant Life Fellowship , 462 Mich 591, 596

- 597; 614 NW2d 88 (2000). Because Koetsier was an invi tee, she entitled to the highest level of protection under premises liability law. Id . at 597

.

Although “ landowners must act in a reasonable manner to guard against harms that threaten the safety and security of those who enter their land, ” it is also true that “ landowners are not insurers; that is, they are not charged with guaranteeing the safety of every person who

comes onto their land. ” Hoffner v Lanctoe , 492 Mich 450, 459; 821 NW2d 88 (2012)

. Furthermore, a landowner has no duty to protect or wa rn an invitee of open and obvious

conditions “ 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 460

- 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 . at 461. This test is objective, with the proper inquiry being “ whet her 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 (2 008)

.

In Slaughter , this Court surveyed caselaw regarding the open and obvious doctrine and the phenomena known as black ice, which by its nature is difficult to observe absent other indicators of slippery conditions. Id . at 47 9

- 481

. The situation inv olved in Slaughter was the presence of black ice without the presence of snow, a situation that had not resulted in a published decision with respect to the open and obvious doctrine. Id . at 477, 481. The Court

held in the case before it that a question of fact remain ed w hether the black ice was open and

obvious because “ there was no snow on the ground, and it had not snowed in a week, ” and the mere fact that it was wintertime and the pavement wet were insufficient to render the hazard open and obvious as a matter of law. Id . at 483

- 484. But the Court set forth a rule of general application to similar cases that black ice may be an open and obvious hazard when there is

evidence it “ would have been visible on casual inspection before the fall or . . . other indicia of a potentially hazardous condition ” was present, such as “ the circumstances and specific weather conditions present at the time of [the] plaintiff ’ s fall

. . . . ” Id . at 483.- 3

- Our Supreme Court in Janson v Sajewski Funeral Home, Inc , 486 Mich 934; 782 NW2d 201 (2010), adopted the Slaughter rule. The Court reversed this Court because it failed apply the precedent of Slaughter that “ ’ black ice ’ conditions [are] 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. ’ ” Id ., quoting Slaughter , 281 Mich App at 4 83. Further, the

Court held that the black ice in Janson was open and obvious because

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 wint ry conditions by their nature would have alerted an average user of ordinary intelligence to discover the danger upon casual inspection. [ Janson , 486 Mich at 93 5.]

In this case, the parties focus on whether “ other indicia of a potentially hazardous

con dition ” existed at the time of Koetsier ’ s fall. The trial court ruled that there was no genuine

issue of material fact and that the black ice on which Koetsier slipped “ was an open and obvious

hazard . . . g iven the temperature and surrounding indicia of winter conditions. ” In reaching that conclusion, the trial court relied on (1) changes in temperature during the day, “ including the warmer conditions during the day and cooler conditions that night ” and (2) the fact that Koetsier

“ was warned about the ex istence of slush, snow, and possible slippery conditions. ”

The trial court noted, consistent with the undisputed facts of this case, that “ weather conditions, which include melting snow and declining temperatures, would cause a reasonable person to anti cipate the possibility of black ice. ” The trial court cited Kaseta v Binkowski , 480 Mich 939; 741 NW2d 15 (2007), and Mitchell v Premium Props Inv e s tments Ltd Partnership

, 477 Mich 1060 (2007) , each reversing this Court for the for the reasons stated in the dissenting opinion

. The trial court also cited to the controlling legal precedent concerning black ice,

Janson , 486 Mich at 934

- 935

, quoting Slaughter , 281 Mich App at 4 83. The trial court did not err in applying this precedent to the undisputed fact s of this case.

Evidence showed that on the day of the accident, the weather was above freezing but previously fallen snow that had been shoveled lay adjacent to the path Koetsier would take to the IHM gym was melting. B oth Michelle and Taylor testifie d that there was slush present in the IHM parking lot when they arrived. Michelle testified she was aware it could be slippery

because of the slush and the snowbanks. She noted the presence of slush and asked Taylor and

Koetsier if they were okay

. Taylo r testified that his mom asked him to be careful because “ there is slush on the ground or there ’ s ice or something like that. ” It is not disputed that on the day of the incident, although it did not snow, rain, sleet during the day and temperatures were a bove freezing in the afternoon, t he sun set about an hour before plaintiff’ s party arrived at IH M

. Thereafter, temperatures quickly dropped to below freezing. Local w eather data confirmed that

b y 4:53 p.m. the temperature was still above freezing, but that by 5:53 p.m. , shortly before Koetsier arrived at IHM, the temperature was down to 30 degrees

. We conclude that the trial court did not err by finding that the undisputed facts show ed that the alleged black ice was open and obvious because there w ere “ ‘ indicia of a potentially hazardous condition, ’ including the

‘ specific weather conditions present at the time of the plaintiff ’ s fall. ’ ” Id

.- 4

- Although the black ice was open and obvious, a property possessor still has a duty to take reasonable p recautions to protect invitees from even open and obvious dangers “if special aspects of a condition make even an open and obvious risk unreasonably dangerous.” Lugo v Ameritech Corp , 464 Mich 512, 517; 629 NW2d 384 (2001). “Special aspects” exist in two circumstances: “when the danger is unreasonably dangerous or when the danger is effectively

unavoidable. ” Hoffner , 492 Mich at 463 (emphasis in original). These principles apply as equally to snowy or icy conditions as to any other condition of land. Id . at 463

- 464; Corey v Davenport College of Business (On Remand) , 251 Mich App 1, 4 , 8

- 9; 649 NW2d 392 (2002). In this case, we conclude that the trial court did not err by finding from the undisputed facts that

t he black ice did not have any special asp ect that ma de it unavoidable or uniquely dangerous.

With regard to special aspects in this case, plaintiff argues not that the hazard was unreasonably dangerous but only that it was effectively unavoidable. We disagree.

In discussing the special aspect of being unavoidabl e , our Supreme Court has opined that

such a hazard “is characterized by an inability to be avoided , an inescapable result, or the inevitability of a given outcome. ” Hoffner , 492 Mich at 46 8 (emphasis in original). Thus, for

this special aspect to apply, “ a hazard must be unavoidable or inescapable in effect or for all practical purposes ,” id ., and a person “ for all practical purposes, must be required or compelled to confront a dangerous hazard. ” Id . at 469 (emphasis in original).

Applying the principles stated in Hoffner , we must, as the trial court did, conclude that

the ic y patch on which Koetsier slipped was not “effectively unavoidable.” Although there was only one entrance to IHM’s gym, the undisput ed evidence established that there were several

different walking routes that spectators and participants in the basketball games could take to traverse the distance from the parking lot to the gym door. Furthermore, even if there was only a single way to proceed toward the entrance to IHM’s gymnasium, t he ice on which Koetsier slipped would not q ualif y as an “effectively unavoidable” hazard because Koetsier could have chosen not to proceed further, when alerted to the possibility of slippery conditions by the existing conditions. Koetsier was not “ required or compelled to confront [the] dangerous

hazard. ” Id . Koetsier could have declined to attend the basketball game. Therefore, the icy hazard was not “effectively unavoidable.”

We affirm. As the prevailing party, defendant may tax costs pursuant to MCR 7.219.

/s/ Joel P. Hoekstra /s/ William B. Murphy /s/ Jane E. Markey