If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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

DONNA LIVINGS,

Plaintiff-Appellee,

UNPUBLISHED

February 26, 2019

v No. 339152

Macomb Circuit Court

SAGE’S INVESTMENT GROUP, LLC, LC No. 2016-001819-NI

Defendant-Appellant, 

and

T & J LANDSCAPING & SNOW REMOVAL, 

INC., and GRAND DIMITRE’S OF 

EASTPOINTE FAMILY DINING,

Defendants.

Before: TUKEL, P.J., and BECKERING and SHAPIRO, JJ.

PER CURIAM.

In this premises liability action, defendant Sage’s Investment Group, LLC, appeals by 

leave granted1 the trial court’s order denying its motion for summary disposition. Defendant 

contends that it did not have possession and control of the premises upon which plaintiff, Donna 

Livings, slipped and fell, and that regardless, the hazard at issue was not effectively unavoidable; 

thus, it owed no duty to plaintiff. Upon careful review of the entire record in the light most 

favorable to plaintiff, we affirm the trial court’s ruling and remand for further proceedings.

 1 Donna Livings v Sage’s Investment Group, LLC, unpublished order of the Court of Appeals, 

entered October 3, 2017 (Docket No. 339152). Neither of the other defendants is involved in 

this appeal. Therefore, we will refer to Sage’s Investment Group, LLC, as defendant in this 

opinion.
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I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case stems from plaintiff’s February 21, 2014, slip and fall in defendant’s parking 

lot. Defendant leased a portion of a plaza on the premises at issue to Grand Dimitre’s of 

Eastpointe Family Dining (Dimitre’s), which operated a restaurant. Plaintiff worked as a food

server at Dimitre’s, where she had been employed for approximately ten years before her fall. 

According to her deposition testimony, on the day of the incident plaintiff arrived by car

at around 5:50 a.m. in order to work the opening shift. She proceeded toward the “rear” parking 

lot where employees were required to park and where they were let in every morning, as the 

front door was locked. She observed that fellow server Debra Buck’s car was already in the 

parking lot. Plaintiff parked approximately 70 feet from the back door, which was the closest 

available spot. The other spots closer to the door were “piled up with snow” because the 

snowplow had pushed snow onto those spots. She testified that every time it snowed, the 

snowplow would plow the new snow in the parking lot, but it would not plow down to the 

cement, causing ongoing concerns:

Originally, like when the snow first started, they plowed. Everything went up 

against the wall [there is a brick wall by the back door]. Then the snow would 

come, but they wouldn’t come until, you know, 10:00 o’clock in the morning, so 

all of the cars and everything coming in would start packing the snow down. So 

when they would come to plow, they would only plow whatever was brushed up, 

so the rest was - then the next two days, whenever it snowed again, it would snow 

and cars are coming in and you kept getting these ruts packing this stuff down. 

They never scraped to the bottom, so it just kept accumulating over time. 

She also testified that the parking lot was never salted after being plowed, which 

contributed to the problem.

[2]

When she arrived on the morning of her fall, plaintiff could not see any pavement in the 

parking lot due to the accumulation of approximately six inches of “packed” snow that had been 

“flattened” to the ground by vehicles and the snow plow over the course of two months of 

snowfall. The result was that the parking lot was “one big block of ice” and “trodden” ground, 

with no fluffy snow on top. Plaintiff described the resulting appearance of the “whole parking 

lot” as “[a] sheet of white ice,” a “solid block,” and as “a solid sheet of white. Whether it be 

 2 Anthony Caramagno, II, the owner of T & J Landscaping and Snow Removal, Inc., testified at 

his deposition that the parking lot at issue is one lot that surrounds the whole complex. He 

plowed the parking lot for free as a favor to his close friend, Jim Sage—defendant’s sole owner. 

Their agreement was that he would provide snowplow services after 1.5 inches of snowfall. 

Caramagno testified that he would only salt if Sage asked him to do so, and that if a particular 

person pays for salting, “whatever residual of snow there is after I’m done plowing, it will melt 

that snow or ice, or whatever seems to be there at that time, down to the surface.” According to 

his records, Sage did not ask him to and he did not salt either the parking lot or the sidewalk on 

the property in question at any time from January through March of 2014. At his deposition, 

Sage testified that he expected Caramagno to salt the parking lot whenever it needed salting.
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packed snow or ice I have no idea.” According to plaintiff, the employees “complained all the

time” to Dimitre’s owner, saying that “the parking lot needed to be done correctly.” Some 

mornings the customers would complain. 

Buck testified at her deposition that on the morning of plaintiff’s fall, the parking lot was 

“a sheet of ice with water on top. Snow, ice, water.” From what she remembered, there was 

“snow, ice and water pretty much through the parking lot.” When asked if any part of the 

parking lot did not have that condition present, she responded, “No, it was covered.” And so was 

the sidewalk. She did not recall seeing any salt on the parking lot. Buck had difficulty walking 

to the restaurant from her car, so she had to “shimmy” her way to the front entrance, where she 

entered with “Chef Bob,” who possessed the front door key.

 A photograph of the parking lot3 reveals that the “rear” parking lot is essentially to the 

right side of, or adjacent to, the front parking area where customers would commonly park:

After taking three steps upon exiting her car, plaintiff fell, injuring her lower back. She 

tried to get up, but she was “slipping everywhere,” so she got down on her hands and knees and 

crawled across the parking area. She tried to get to the back door, but she could not, so she 

“ended up walking the snow drift, plowed area, whatever you want to call it” around the building 

to the front entrance. She called the restaurant with her cell phone when she got to the front 

 3 The photograph was not taken on the day of plaintiff’s fall. Plaintiff provided a copy of the 

photograph to the trial court in her brief in opposition to defendant’s motion for summary 

disposition, and it was referred to in various depositions.
-4-

door, and Buck answered the phone and opened up the front door for her. Buck testified that 

plaintiff was soaking wet from the waist down after her fall.4

Plaintiff testified that when the pain caused by the fall did not subside by the following 

day, she decided to seek evaluation and treatment. She was diagnosed with a lower back injury 

that ultimately required three surgeries, including an anterior lumbar fusion at L4-5. Plaintiff 

filed this premises liability action, and discovery ensued.

Defendant moved for summary disposition on the basis that the condition was open and 

obvious and was not effectively unavoidable because plaintiff knew that the area was snowy or 

icy, and she could have parked in a different location and entered through the front door. 

Defendant also argued that it did not exercise the requisite degree of possession and control over 

the premises to be held liable on a premises liability theory. Defendant contended that only the 

restaurant’s employees and customers used the parking lot, and that the lease agreement required 

Dimitre’s to assume the responsibility of snow removal. 

The trial court denied defendant’s motion, stating that whether plaintiff was permitted to 

park in front of the building and use the front door was a question of fact for the jury given 

plaintiff’s testimony that employees were required to park in the back and enter through the back 

door. The court noted plaintiff’s testimony that the snow removal process always left a coating 

of snow and ice in the parking lot. Regarding possession and control of the property, the court 

reasoned that defendant, rather than Dimitre’s, had contracted with T & J Landscaping & Snow 

Removal, Inc. (“T & J”) for snow removal services and that Dimitre’s did not assume the 

responsibility for snow removal simply by salting the sidewalk in the area where the front 

entrance was located.

Defendant filed this interlocutory application for leave to appeal, reasserting its 

arguments made in the trial court, which this Court granted.

II. POSSESSION AND CONTROL OF PREMISES

Defendant first argues that it cannot be held liable for plaintiff’s injuries because it was 

not in possession and control of the parking lot when plaintiff fell. We disagree.

 4 According to his deposition testimony, Ayman Shkoukani, an owner of Dimitre’s, arrived at 

9:00 a.m. on the day of plaintiff’s fall. He testified that plaintiff told him she had fallen in the 

back parking lot on her way in to work. Shkoukani went to the rear parking lot and realized that 

water was not draining through the sewer grate. The water was up to his ankle, and his foot was 

“soaked.” He testified: “I think like the drain line, the city line, it was like covered with ice, you 

know, leaf plus ice. . . . I think it was a sheet of ice underneath—underneath the water. He said 

he used sticks in an effort to unblock the grate, and the water drained through the grate. Plaintiff 

testified that she does not know if she slipped near the drain because she could not see the drain, 

and Shkoukani’s actions did not clear the entire back lot, just near the drain. Buck similarly 

testified that when she left at the end of her shift, there was still snow and ice in the back parking 

lot.
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This Court reviews the grant or denial of a motion for summary disposition de novo. 

Value, Inc v Dep’t of Treasury, 320 Mich App 571, 576; 907 NW2d 872 (2017). Defendant 

moved for summary disposition pursuant to MCR 2.116(C)(10). “A motion under MCR 

2.116(C)(10) tests the factual support for a claim and should be granted when there is no genuine 

issue of material fact and the moving party is entitled to judgment as a matter of law.” Anzaldua 

v Neogen Corp, 292 Mich App 626, 630; 808 NW2d 804 (2011). 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.’ ” Cox v Hartman, 322 Mich 

App 292, 299; 911 NW2d 219 (2017) (citation omitted).

In order for a defendant to be liable under a premises liability theory for injuries caused 

by conditions of the land, the defendant must have legal possession and control of the premises. 

Morelli v City of Madison Heights, 315 Mich App 699, 702; 890 NW2d 878 (2016). “ ‘Premises 

liability is conditioned upon the presence of both possession and control over the land because 

the person in possession is in a position of control and normally best able to prevent any harm to 

others.’ ” Id. at 702-703 (citation omitted). A “possessor” of land is defined as:

“(a) a person who is in occupation of the land with intent to control it or

(b) a person who has been in occupation of land with intent to control it, if no 

other person has subsequently occupied it with intent to control it, or 

(c) a person who is entitled to immediate occupation of the land, if no other 

person is in possession under Clauses (a) and (b).” [Orel v Uni-Rak Sales Co, Inc, 

454 Mich 564, 568; 563 NW2d 241 (1997), quoting Merritt v Nickelson, 407 

Mich 544, 552; 287 NW2d 178 (1980), quoting 2 Restatement Torts, 2d, § 328 E, 

p 170.]

There is no dispute between the parties that defendant owned the plaza, including the parking lot. 

However, defendant correctly notes that ownership of the plaza is not necessarily determinative 

of whether it had possession and control of the parking lot. “Possession and control are certainly 

incidents of title ownership,” but where a landlord retains title ownership to the premises and 

rents the premises to a tenant, the possession and control that the landlord would ordinarily retain 

“can be ‘loaned’ to another, thereby conferring the duty to make the premises safe while 

simultaneously absolving oneself of responsibility.” Id.

Defendant argues that Grand Dimitre’s possessed and controlled the parking lot and that 

Grand Dimitre’s was responsible for all outdoor maintenance, based on a clause in the original 

lease agreement for the restaurant space in defendant’s plaza. The lease agreement that covered 

the restaurant space was originally executed between the former owner of the plaza and the 

former owner of the restaurant space. The plaza’s former owner sold the plaza to defendant, and 

as a result, defendant assumed the role of landlord with regard to the lease agreement that 

belonged to the former owner of Dimitre’s restaurant space. The restaurant space was then sold 

to another individual, who opened Dimitre’s. Dimitre’s was then sold to Ayman Shkoukani and 

his brothers.

 Shkoukani accepted the terms of the lease agreement via assignment from 

Dimitre’s’ former owner. In 2004, the lease agreement expired. Defendant permitted Dimitre’s 

to stay in the space, and Dimitre’s began paying rent on a month-to-month basis.
-6-

Defendant argues that it cannot be held liable for any injuries to plaintiff because 

Dimitre’s was a holdover tenant, which meant that it was required to adhere to the terms of the 

lease agreement Shoukani had assumed when he purchased Dimitre’s. Defendant specifically 

points to a clause in the lease agreement regarding maintenance:

The Tenant shall . . . at its own cost and expense, put, keep, replace and maintain 

in thorough repair and in good, clean, safe and substantial order and condition, 

and free from dirt, snow, ice, rubbish, and other obstructions or encumbrances, 

and to the satisfaction of the Landlord, the driveways, sidewalks, parking areas, 

yards, plantings, pavement, car stops, gutters and curbs in front of and adjacent to 

the restaurant and, generally, the property comprising the Premises.

A tenant under a lease agreement becomes a “holdover tenant” by remaining in a leased space 

after the expiration of the lease agreement. TCG Detroit v City of Dearborn, 261 Mich App 69, 

88; 680 NW2d 24 (2004). However, regardless of Dimitre’s status as a holdover tenant, 

defendant’s potential liability for injuries to plaintiff ultimately depends on whether defendant 

exercised possession and control over the parking lot where plaintiff fell.

In this context, “possession” is defined as “ ‘[t]he right under which one may exercise 

control over something to the exclusion of all others.’ ” Derbabian v S & C Snow Plowing, Inc, 

249 Mich App 695, 703; 644 NW2d 779 (2002) (citation omitted). “Control” is defined as 

“ ‘exercis[ing] restraint or direction over’ ” Id. at 704 (citation omitted). In commercial settings, 

landlords and tenants may both have “a duty of care to keep the premises within their control 

reasonably safe from physical hazard.” Bailey v Schaaf, 494 Mich 595, 605; 835 NW2d 413 

(2013).

Despite the fact that commercial landlords can exercise possession and control over land 

rented by tenants (and therefore can be found liable for failing to maintain land in reasonably 

safe condition), defendant suggests that Dimitre’s was required to perform all of the exterior 

maintenance for the restaurant space. Conversely, the record suggests that defendant assumed 

the responsibility for maintaining the common areas, including the parking lot where plaintiff 

fell. Shkoukani testified that defendant charged Dimitre’s yearly for snow removal services and 

other expenses, dividing the cost among defendant’s tenants based on their square footage of 

rental space. Jim Sage, the sole owner of defendant, testified that he hired T & J to remove snow 

and ice from the parking areas for the entire plaza where Dimitre’s was located, and he billed his 

tenants for that service by attaching “common area maintenance” (CAM) charges to the total cost 

of rent for each space in the plaza.5 The record further shows that defendant selected T & J as 

the snow maintenance service for the plaza, and all of the decisions related to the agreement 

between defendant and T & J were made by defendant and T & J. Dimitre’s did not have any 

 5 Sage testified that he has been using T & J for approximately 25 to 28 years, and that the terms 

of the agreement are that other than when there is only a “very minor” amount of snowfall, like a 

quarter inch, “[w]hen it snows, they plow, when it needs salting, they salt.” Sage testified that

defendant pays T & J for its services, and his records show that he issued CAM charges for the 

time frame in question (July 1, 2013 to June 30, 2014) for snow removal and salting in the 

amount of $6,725.
-7-

ability to give input regarding the agreement, nor could it give input regarding the cost of T & J’s 

services or what defendant charged Dimitre’s for those snow removal services. During the 

approximately ten years during which Shkoukani owned Dimitre’s prior to the slip-and-fall at 

issue here, defendant had always handled the snow removal. Shkoukani was not aware that 

Dimitre’s was supposedly responsible for removing snow from the parking lot, and he relied on 

T & J and defendant to maintain the outdoor common areas, with the exception of the front 

sidewalk. Dimitre’s never individually contracted with T & J for snow removal services and 

instead relied on defendant to care for maintenance of the parking lot.

Our Supreme Court has held that both the commercial owner of a parking lot and the 

lessee of a parking lot may be “held liable for an invitee’s injury that arose from a hazard on the 

parking lot.” Bailey, 494 Mich at 607; see also Siegel v Detroit City Ice & Fuel Co, 324 Mich 

205; 36 NW2d 719 (1949) (holding that a landlord and a commercial tenant were both liable for 

injury to the plaintiff because both had possession and control of the premises where the plaintiff 

was injured). However, even assuming that Dimitre’s had a duty as a holdover tenant to adhere 

to the terms of the original lease agreement covering the restaurant space, defendant clearly 

exercised possession and control of the common areas by exclusively choosing to employ T & J 

and charging the plaza’s tenants, including Dimitre’s, a CAM fee for snow removal and salting 

services. The facts herein indicate that defendant possessed and controlled the parking lot to the 

degree necessary for it to potentially be held liable.

“ ‘[P]ossession for purposes of premises liability does not turn on a theoretical or 

impending right of possession, but instead depends on the actual exercise of dominion and 

control over the property.’ ” Derbabian, 249 Mich App at 704, quoting Kubczak v Chemical 

Bank & Trust Co, 456 Mich 653, 661; 575 NW2d 745 (1998). In plaintiff’s case, defendant was 

“the [entity] . . . in the best position to prevent plaintiff’s injury,” because it made itself solely 

responsible for major snow maintenance by hiring T & J. Id. at 705. “[E]ven if the [lease] 

agreement could be construed as granting [Dimitre’s] the right to control the restaurant’s 

maintenance, there is no evidence that [it] exercised that right” on the day that plaintiff fell. 

Little v Howard Johnson Co, 183 Mich App 675, 679; 455 NW2d 390 (1990); see also 

Derbabian, 249 Mich App at 704. Here, defendant retained exclusive control over the parking 

lot’s snow removal. Accordingly, there is no question of fact regarding whether defendant 

exercised “dominion and control” over the parking lot—it did. Derbabian, 249 Mich App at 

704. Therefore, defendant could be held liable for plaintiff’s injuries as a result.

III. OPEN & OBVIOUS DOCTRINE AND SPECIAL ASPECTS EXCEPTION

Defendant next argues that, even if it had possession and control of the parking lot, the 

trial court erred by denying its motion for summary disposition because the dangerous condition 

caused by the ice on the surface of the parking lot was open and obvious, and it was not 

effectively unavoidable. We agree with the former proposition, but not that latter, which we find 

to be a material question of fact for a jury to resolve.

To establish negligence in a premises liability action, a plaintiff must show “ ‘(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.’ ” Mouzon v 
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Achievable Visions, 308 Mich App 415, 418; 864 NW2d 606 (2014) (citations omitted). Plaintiff 

argues that defendant breached the duty of care owed to her as an invitee by failing to remove the 

dangerous condition posed by the ice in the parking lot. The parties do not dispute plaintiff’s 

status as a business invitee.

Where a “plaintiff is a business invitee, the premises owner has a duty to exercise due 

care to protect the invitee from dangerous conditions.” Sanders v Perfecting Church, 303 Mich 

App 1, 4; 840 NW2d 401 (2013). Landowners have a duty to warn invitees of dangerous 

conditions that they are not otherwise likely to discover, and to “maintain the premises in a 

reasonably safe condition.” Bailey, 494 Mich at 606. However, a landowner is generally not 

required to protect or warn an invitee if the danger is “known to the invitee or [is] so obvious that 

the invitee might reasonably be expected to discover [it].” Hoffner v Lanctoe, 492 Mich 450, 

484; 821 NW2d 88 (2012) (quotation marks and citation omitted). 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.” Bialick v Megan Mary, Inc, 286 Mich 

App 359, 363; 780 NW2d 599 (2009).

“Generally, the hazard presented by snow and ice is open and obvious, and the landowner 

has no duty to warn of or remove the hazard.” Royce v Chatwell Club Apartments, 276 Mich 

App 389, 392; 740 NW2d 547 (2007). Plaintiff argues on appeal that the presence of ice in the 

parking lot was not open and obvious because it was dark outside when she arrived at Dimitre’s, 

and the only light in the parking lot came from a small overhead lamp by the back door of Grand 

Dimitre’s. However, at her deposition, plaintiff specifically stated that she did see the snow and 

ice in the prevailing lighting conditions:

Q. Are there lights on the premises?

A. The side of the premises, yes. The front, I have no idea.

Q. What about the back?

A. The back lighting was—they had a night light over the back door.

Q. Nonetheless, you were still able to see the snow and ice, right?

A. Well, if you walk into your bathroom and you have a night light, that is 

how bright that light was. It just [lit] the door. It didn’t come out into the parking 

lot.

Q. I see. But again, nonetheless, you were still able to see the ice, right?

A. Yes.

Plaintiff further testified that she recognized that the entire parking lot was covered in snow and 

ice and knew that it could be slippery:

Q. Did you see the snow coming into the parking lot –
-9-

A. Yes.

Q. – on the – let me just finish the question. Did you see the snow 

coming into the parking lot?

A. Yes.

Q. Did you know it might be slippery in the parking lot?

A. Yes.

* * *

Q. Where were you looking when you fell?

A. On the ground.

Q. Could you see the ice?

A. Yes.

Q. Could you see pavement?

A. No.

Q. How much ice would you say you were able to see?

A. The whole parking lot.

The fact that ice was present on the surface of the parking lot was clearly open and 

obvious upon casual inspection based on plaintiff’s own testimony that she was able to observe

that the entire parking lot was covered in a layer of ice and she recognized that such conditions 

posed a slip hazard, despite the fact that the parking lot was dark. There is nothing in the record 

to suggest that a reasonable person in plaintiff’s position would not have made the same 

observations. See Janson v Sajewski Funeral Home, Inc, 486 Mich 934, 935; 782 NW2d 201 

(2010). Further, even if the area near the drain where plaintiff fell was icy, it was no different in 

character than the rest of the parking lot, which plaintiff could see was covered in a layer of 

snow and ice. Thus, the trial court erred when it failed to determine that the hazard was open 

and obvious.

However, an open and obvious condition may nevertheless result in liability if the 

condition possesses special aspects that make it unreasonably dangerous. Lugo v Ameritech 

Corp, 464 Mich 512, 517; 629 NW2d 384 (2001). Special aspects “differentiate [a] risk from 

typical open and obvious risks so as to create an unreasonable risk of harm.” Id. at 518. A 

“special aspect” is a condition that either “impose[s] an unreasonably high risk of severe harm,”

or that is “effectively unavoidable.” Id. In attempting to define a situation in which an 

individual would be exposed to an unreasonably high risk of severe harm, our Supreme Court 

has postulated that an unguarded, 30-foot-deep hole in a parking lot would constitute one such 
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special aspect. A large, deep hole in a parking lot would certainly be open and obvious, but 

would still contain special aspects that would result in exposure to an unreasonable risk of severe 

harm because falling in the hole would likely result in severe injury or death. Id.

Although the ice may have been slippery enough to be unsafe for plaintiff to walk on, our 

Supreme Court’s standard for determining conditions that pose an unreasonable risk of severe 

harm is exceptionally high, and generally, the presence of ice and snow do not meet that 

standard. Lymon v Freedland, 314 Mich App 746, 759-760; 887 NW2d 456 (2016). “The risk 

of slipping and falling on ice is not sufficiently similar to those special aspects discussed in Lugo

to constitute a uniquely high likelihood or severity of harm and remove the condition from the 

open and obvious danger doctrine.” Royce, 276 Mich App at 395-396. Similarly, the fact that 

there was ice on the ground in the parking lot does not, in and of itself, give rise to a special 

aspect that creates an unreasonable risk of harm as contemplated in Lugo.

Regarding whether a condition is “effectively unavoidable,” the condition must be 

“unavoidable or inescapable . . . for all practical purposes.” Hoffner, 492 Mich at 468. 

“Unavoidability is characterized by an inability to be avoided, an inescapable result, or the 

inevitability of a given outcome.” Id. Thus, the phrase “effectively unavoidable” suggests that 

plaintiff must have been “required or compelled to confront a dangerous hazard.” Id. at 468-469. 

In Lugo, our Supreme Court gave the example of “a commercial building with only one exit . . . 

where the floor is covered with standing water” as a hypothetical illustration of an unavoidable 

condition because an individual would be required to walk through the standing water in order to 

exit the building. Lugo, 464 Mich at 518.

Plaintiff argues that the icy parking lot was effectively unavoidable because she did not 

have a means of getting in through the front door, and in any event, the parking area in front of 

the building was just as slippery and equally as dangerous as the rear area. The other waitress 

who arrived before plaintiff had to “shimmy” her way in. Defendant argues that plaintiff offers 

no evidence that she would have faced reprisal or punishment for parking somewhere other than 

the rear lot and entering through the front door of the restaurant. 

Viewed in a light most favorable to plaintiff, the record evidence creates a genuine issue 

of material fact as to whether any part of the parking lot was in a reasonably safe condition to 

traverse in order to enter the restaurant and report for work. As noted herein, in her deposition 

plaintiff testified that the “whole parking lot” was “[a] sheet of white ice,” a “solid block,” and

“a solid sheet of white.” Buck, who entered through the front door, testified that the parking lot 

was “a sheet of ice with water on top. Snow, ice, water.” From what she remembered, there was 

“snow, ice and water pretty much through the parking lot,” and when asked if any part of the 

parking lot did not have that condition present, she responded, “No, it was covered[,]” as was the 

sidewalk. Buck herself had difficulty entering through the front door and had to “shimmy.” The 

fact that Buck did not also fall does not equate to there being an effectively avoidable hazard, 

just that she managed to dodge injury caused by the presenting hazard. Photographs of the 

restaurant reveal that the “back” parking lot is actually on the side of the building and adjacent to 

the front parking lot; in other words, they are part of the same parking lot. And other than the 
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snow pile conditions blocking several spots in the back, the record supports a finding that the 

entire parking lot presented an effectively unavoidable hazard of packed snow and ice.

6

 

We affirm the trial court and remand for further proceedings. We do not retain 

jurisdiction. 

/s/ Jane M. Beckering

/s/ Douglas B. Shapiro

 6

 We disagree with our dissenting colleague’s contention that caselaw in this state requires a 

different conclusion regarding whether the presenting hazard was effectively unavoidable. As 

the Supreme Court pointed out in Hoffner, “[i]n Michigan, a premises possessor owes a duty to 

use reasonable care to protect invitees from an unreasonable risk of harm caused by dangerous 

conditions on the premises, including snow and ice conditions.” Hoffner, 492 Mich at 455 

(emphasis added). Hoffner rejected the idea that a hazard is effectively unavoidable simply 

because a plaintiff has a business interest in entering the premises. Id. As the Supreme Court 

pointed out when discussing the implications of its ruling in Perkoviq v Delcor Homes-Lake 

Shore Pointe Ltd, 466 Mich 11; 643 NW2d 212 (2002), “it cannot be said that compulsion to 

confront a hazard by the requirement of employment is any less ‘avoidable’ than the need to 

confront a hazard in order to enjoy the privileges provided by a contractual relationship, such as 

a membership in a fitness club. Id. at 472. “Neither possessing a right to use services, nor an 

invitee’s subjective need or desire to use services, heightens a landowner’s duties to remove or 

warn of hazards or affects an invitee’s choice whether to confront a hazard. To conclude 

otherwise would impermissibly shift the focus from an objective examination of the premises to 

an examination of the subjective beliefs of the invitee.” Hoffner, 492 Mich at 472. Rather, an 

effectively unavoidable condition must be an inherently dangerous hazard that a person is 

inescapably required to confront under the circumstances. Id. at 456. The “touchstone” for 

permitting recovery under the “special aspects” exception to the open and obvious doctrine is the 

unreasonableness of the hazard. Id. at 472. Thus, we should not define whether a duty exists by 

the needs of the person seeking to use the property. Rather, we should define whether a duty 

exists by the unreasonableness of the hazard. Here, record evidence supports a finding that 

defendant’s entire parking lot had become a sheet of white ice, or one big block of ice, due to the 

chronic accumulation over two months of fresh snow being packed down by cars, arrival of a 

snowplow after the snow had been packed down, such that the snow could not be fully removed, 

and the complete failure to salt the parking lot all winter. Put simply, the hazard encompassed 

the entire premises and it was effectively unavoidable for anyone and everyone, whether coming 

or going. It simply cannot be the law that a premises owner can render an all-encompassing 

hazard on the property “effectively unavoidable” by claiming that no one should come near the 

property.