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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

KEN YOUNG,

Plaintiff-Appellant,

UNPUBLISHED

February 6, 2018

v No. 333794

Oakland Circuit Court

WALTON OIL, INC., LC No. 2015-145680-NO

Defendant-Appellee.

Before: MURRAY, P.J., and FORT HOOD and GLEICHER, JJ.

PER CURIAM.

Ken Young slipped and fell on ice while walking toward a gas pump at Walton Oil. The 

circuit court summarily dismissed Young’s complaint against the gas station owner, ruling that 

there was no evidence Walton Oil had notice of the icy condition and that the condition was open 

and obvious. Young created fact questions regarding both issues. Accordingly, we vacate the 

circuit court’s order of summary disposition and remand for further proceedings.

I. BACKGROUND

On a cold winter evening, Young stopped at Walton Oil to fill his tank. Young testified 

that as he exited his car and began to walk in the direction of a gas pump, he slipped and fell. 

The area was well-lit and entirely cleared of snow. He did not see any ice.

Yaser Al Asadi managed the gas station that evening. He testified that he inspected the 

area near the pumps when he arrived for work at 3:00 p.m. and saw no ice. In fact, Al Asadi 

claimed that he could not see any ice even after Young fell. He declared, “There’s no ice 

outside.”

Another manager, Youssef Krayem, later watched a store video that included Young’s 

fall.1 According to Krayem, the video showed that the parking lot “was pretty clean. There’s no 

even [sic] ice, nothing.” He speculated that possibly water had collected and frozen in a “crack 

 1 Apparently Walton Oil did not retain a copy of the video, and no one other than Krayem has 

watched it.
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here and there.” He admitted that he was able to see a patch of ice “[l]ike a foot wide” near the 

pump when he personally inspected the area the next morning.2

Ultimately, the circuit court dismissed Young’s premises liability action. The court 

summarized that neither Young nor Al Asadi, who had inspected the property that day, saw the 

ice upon which Young fell, even after the incident. There was no evidence regarding the length 

of time the ice had been on the ground. Accordingly, the court determined, there was no 

evidence that Walton Oil had notice of the dangerous condition. The court also determined that 

the condition was open and obvious such that Walton Oil had no duty to warn. Specifically, the 

court noted that the grass surrounding the gas station was snow covered and it was very cold that 

day. Young “could have, and should have, expected ice on the ground” under those conditions.

II. ANALYSIS

Young now appeals the circuit court’s summary disposition order. “We review a trial 

court’s decision on a motion for summary disposition de novo.” Zaher v Miotke, 300 Mich App 

132, 139; 832 NW2d 266 (2013). Summary disposition under MCR 2.116(C)(10) is proper 

when “there is no genuine issue as to any material fact, and the moving party is entitled to 

judgment . . . as a matter of law.” Jimkoski v Shupe, 282 Mich App 1, 4; 763 NW2d 1 (2008). 

“In reviewing a motion under MCR 2.116(C)(10), [we] consider[] the pleadings, admissions, 

affidavits, and other relevant documentary evidence of record in the light most favorable to the 

nonmoving party to determine whether any genuine issue of material fact exists to warrant a 

trial.” Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). See also MCR 

2.116(G)(5).

“To establish a prima facie case of negligence, a plaintiff must prove that ‘(1) the 

defendant owed the plaintiff a legal duty, (2) the defendant breached the legal duty, (3) the 

plaintiff suffered damages, and (4) the defendant’s breach was a proximate cause of the 

plaintiff’s damages.’ ” Hill v Sears, Roebuck & Co, 492 Mich 651, 660; 822 NW2d 190 (2012), 

quoting Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162; 809 NW2d 553 

(2011). “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.” Hoffner v 

Lanctoe, 492 Mich 450, 460; 821 NW2d 88 (2012). With regard to invitees, a premises owner 

has a “legal duty . . . to exercise reasonable care to protect invitees from an unreasonable risk of 

harm caused by a dangerous condition of the land that the landowner knows or should know the 

invitees will not discover, realize, or protect themselves against.” Bertrand v Alan Ford, Inc, 

449 Mich 606, 609; 537 NW2d 185 (1995) (quotation marks and citation omitted).

 2 When describing that ice patch, Krayem contradicted his earlier testimony, asserting that he 

was able to see the ice on the video.
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However, “a premises possessor is not required to protect an invitee from open and 

obvious dangers.” Lugo v Ameritech Corp, Inc, 464 Mich 512, 517; 629 NW2d 384 (2001). An 

objective test applies for determining whether a dangerous condition is open and obvious: would 

an average person of ordinary intelligence discover the danger and the risk it presents on casual 

inspection? Novotney v Burger King Corp (On Remand), 198 Mich App 470, 474; 499 NW2d 

379 (1993). Accordingly, for Young to prove that the circuit court erred in granting Walton 

Oil’s motion for summary disposition, he must “come forth with sufficient evidence to create a 

genuine issue of material fact that an ordinary user upon casual inspection could not have 

discovered the existence” of the danger. Id. at 475. Given that neither Young nor Al Asadi 

could see the ice, we must assume that it was not visible on casual inspection.

Logically, ice that is invisible or nearly so is not “open and obvious” as a matter of law; 

one would not expect an average person to be able to discern a nearly invisible thing on casual 

inspection. We acknowledge that in a brief order, the Supreme Court suggested that “wintery 

conditions by their nature” should alert an average person “to discover the danger upon casual 

inspection.” Janson v Sajewski Funeral Home, Inc, 486 Mich 934, 935; 782 NW2d 201 (2010). 

But in a later opinion, Hoffner v Lanctoe, 492 Mich 450, 463-464; 821 NW2d 88 (2012), quoting 

Quinlivan v Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244, 261; 235 NW2d 732 (1975), 

the Court emphasized that it has consistently “ ‘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.” 

In other words, the presence of snow and cold temperatures does not create an irrefutable 

presumption of accompanying ice. While “wintry conditions, like any other condition on the 

premises, may be deemed open and obvious,” the central question remains “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.” Hoffner, 

486 Mich at 464. Therefore, the Supreme Court elucidated, “a premises owner has a duty to 

exercise reasonable care to diminish the hazards of ice and snow accumulation” by taking 

“reasonable measures” within a “reasonable time after an accumulation of ice and snow to 

diminish the hazard of injury to the invitee.” Id. (quotation marks and citation omitted).

We interpret this language as counseling courts to apply an individualized analysis in ice 

cases rather than rubber-stamping a “wintry conditions” rule deeming every patch of ice on 

property opened to invitees open and obvious as a matter of law. The facts of this case 

demonstrate that ice may not be visible on casual inspection despite a surrounding winter 

landscape. 

It snowed only lightly and briefly on the day of Young’s fall, and there was no 

accumulation. The parking lot had been cleared of snow that had fallen earlier in the week. 

Young testified that he did not see the ice. The representative of the gas station who was 

actually present that night did not see any ice. The witnesses’ inability to discern the presence of 

the ice means that a jury should decide whether an average person of ordinary intelligence would 

have discovered it on casual inspection, bearing in mind that it was February in Michigan. 

A fact question also exists regarding whether Walton Oil had constructive knowledge of 

the ice’s presence. There is no record evidence that Walton Oil had actual notice of the ice. But 
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the constructive notice doctrine contemplates liability if a defendant knew or should have known

of a dangerous condition on the premises. 

An invitee such as Young is “entitled to expect” that a premises possessor will “take 

reasonable care to know the actual conditions of the premises and either make them safe or warn 

the invitee of dangerous conditions.” Kroll v Katz, 374 Mich 364, 373-374; 132 NW2d 27 (1965) 

(quotation marks omitted). This Court has recognized that an occupier’s knowledge of the 

“actual conditions” of the premises demands adequate inspection to discover latent dangers:

“The occupier is not an insurer of the safety of invitees, and his duty is only to 

exercise reasonable care for their protection. But the obligation of reasonable 

care is a full one, applicable in all respects, and extending to everything that 

threatens the invitee with an unreasonable risk of harm. The occupier must not 

only use care not to injure the visitor by negligent activities, and warn him of 

latent dangers of which the occupier knows, but he must also inspect the premises 

to discover possible dangerous conditions of which he does not know, and take 

reasonable precautions to protect the invitee from dangers which are foreseeable 

from the arrangement or use.” [Conerly v Liptzen, 41 Mich App 238, 241-242; 

199 NW2d 833 (1972), quoting Prosser, Torts (3d ed), § 61, pp 402-403, 

(emphasis added).]

The employees of Walton Oil knew that ice sometimes formed on the surface of the gas 

station. They kept salt at the ready for deployment in preventing slippery patches. One 

employee specifically acknowledged that ice sometimes develops in pavement “cracks.” These 

realities of a gas station in winter would reasonably support a need for regular inspections of the 

premises. Further, a Walton Oil employee testified that an inspection occurred several hours 

before Young’s fall. 

Viewed in the light most favorable to Young, the ice on which he fell was present at 3:00 

p.m. when Al Asadi claims to have inspected the premises. We base this conclusion on the fact 

that nothing changed, weather-wise, throughout that afternoon and evening. The temperature 

remained the same: well below freezing. There was no snow. No evidence supports that 

something happened that would have suddenly caused a patch of ice to form. The reasonable 

inference is that if Al Asadi actually inspected the premises at 3:00 p.m., he did so negligently. 

And although the ice may have been difficult to see, Al Asadi’s duty included looking for 

hazards, not merely casually inspecting the premises. Price v Kroger Co of Mich, 284 Mich App 

496, 500; 773 NW2d 739 (2009). A jury could reasonably find that Al Asadi should have seen 

the ice, especially since Krayem found it the next day when he inspected the premises.

“Generally, the question of whether a defect has existed a sufficient length of time and 

under circumstances that the defendant is deemed to have notice is a question of fact, and not a 

question of law.” Banks v Exxon Mobil Corp, 477 Mich 983, 984; 725 NW2d 455 (2007), citing 

Kroll, 374 Mich at 371. Questions of fact abound in this case both as to notice and whether the 

ice was open and obvious. 
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Accordingly, we vacate the grant of summary disposition in Walton Oil’s favor and 

remand for further proceedings. We do not retain jurisdiction.

/s/ Karen M. Fort Hood 

/s/ Elizabeth L. Gleicher