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### STATE OF MICHIGAN

COURT OF APPEALS

DEMETRIA MOSES,

Plaintiff-Appellant, UNPUBLISHED January 24, 2017

v No. 329635 Oakland Circuit Court ARBORS OF ALDINGBROOKE, LLC, doing business as ALL SEASONS OF WEST BLOOMFIELD, LC No. 2014-140622-NO

Defendant-Appellee,

and

SUE’S LANDSCAPING, INC.,

Defendant.

Before: B ECKERING , P.J., and S AWYER and S AAD , JJ.

P ER C URIAM

. Plaintiff appeals as of right a stipulated order of dismissal dismissing her premises liability action. We affirm.

Plaintiff challenges the trial court’s order granting defendan t’s motion for summary disposition. Plaintiff argues t hat the trial court erred in gr anting defendant’s motion for summary disposition because a special aspect existed that would preclud e application of the open and obvious doctrine to the alleged hazardous condition on defendan t’s premises. We disagree.

Defendant moved for summary disposition under MCR 2.116(C)(10) . The trial court granted defendant’s motion unde r MCR 2.116(C)(10), finding that there was no genuine issue of material fact. Motions for summary disposition are reviewed de novo. Bonner v City of Brighton , 495 Mich 209, 220; 848 NW2d 380 (2014). A court must conside r the pleadings, depositions, affidavits, admissions, and other documentary evid ence which has been filed by the parties in a light most favor able to the nonmoving party when d eciding whether to grant a motion for summary disposition under MCR 2.116(C)(10). Id . “Summary disposition is appropriate under MCR 2.116(C)(10) if, ‘[e]xcept as to the amount of damage s, there is no genuine issue as to any material fact, and the moving party is entitled to judgm ent or partial judgment as a matter-2- of law.’ ” Id ., citing MCR 2.116(C)(10). “ ‘A genuine issue of material fac t exists when, viewing the evidence in a light most favorable to the nonmoving party, the record which might be developed . . . would leave open an issue upon which reasona ble minds might differ.’ ” Id
., citing to Debano-Griffin v Lake Co , 493 Mich 167, 175; 828 NW2d 634 (2013).

A premises liability claim is distinguishable from an ordinary negligence claim in that a defendant’s duty arises from being an owner, possessor, or occu pier of land, rather than from a duty to conform to a standard of care while performing a certai n activity. Lymon v Freedland
, 314 Mich App 746, 756; 887 NW2d 456 (2016). Thus when a condit ion of the land, such as an icy driveway, leads to injury, the claim is based in premises l iability. Id. Here, plaintiff alleges that she was injured when she slipped on defendant’s icy sidewa lk. An icy sidewalk is a condition of the land. Thus, premises liability is the appropr iate framework under which to analyze plaintiff’s claim.

A premises possessor owes a duty to invitees to use reasonable care in protecting them from “unreasonable risks of har m posed by dangerous conditions on the owner’s land.” Hoffner v Lanctoe , 492 Mich 450, 460; 821 NW2d 88 (2012). An invitee is a perso n who has an invitation to enter the land. Stitt v Holland Abundant Life Fellowship , 462 Mich 591, 596-597; 614 NW2d 88 (2000). A landowner has a duty to warn the invitee of any known dangers and to keep the premises safe. Id . A premises possessor is liabl e for harm resulting from breac hing this duty of care if it knows or shoul d know of the dangerous condit ion and the invitee is unaware of the condition. Hoffner , 492 Mich at 460. A premises possessor is not liable, however , for a dangerous condition that is open and obvious, because the invit ee is aware of the dangerous condition and should make a reasonable effort to protect themse lves. Id . at 460-461. Whether a snow or ice condition is open and obvious turns on whether a re asonably prudent person under the circumstances would see th e condition as pos ing a risk to t heir safety. Id . at 464.

A condition that is open and obvious may, nonetheless, pose su ch an unreasonable risk of harm that a premises possessor will still be held liable. Id . at 461-462. Likewise, “if the condition is open and obvious, a plaintiff who is injured by th e condition may avoid summary disposition only if there are s pecial aspects to the condition. ” Id . at 464. Our Supreme Court has noted two instances where “special aspects of an open and obvio us hazard could give rise to liability: when the danger is unreasonably dangerous or when the danger is effectively unavoidable .” Id . at 462. “[T]he standard for “ effective unavoidability” is th at a person, for all practical purposes, must be required or compelled to confront a dangerous hazard.” Id . at 469. In other words, where a person ha s a choice to avoid the danger ous condition, it is not effectively unavoidable. Id. The Court reminds us that “exceptions to the open and obvious doctrine are

narrow and designed to permit liability for such dangers only in limited , extreme situations.” Id

. at 472.

Plaintiff slipped and fell on ice on the sidewalk outside defe ndant’s assisted living facility, just before her overnight shift as an emergency monit or ended. Plaintiff admitted that she was aware of the ice on the sidewalk. Additionally, she kn ew that it was freezing out, saw it snow, and observed frost on the windshields of cars outside. A reasonably prudent person under the circumstances would recognize that the sidewalk was icy andthat this could pose a slip-andfall hazard. As a longtime Michigan resident, plaintiff was aw are that this type of weather could mean slippery conditions. Plaintiff also admitted to walking c arefully on the ice so that she-3- would not fall. Plaintiff was aw are of the ice and aware that it could cause her to fall. Therefore, there is no genuine issu e of material fact t hat the dangerous c ondition was open and obvious.

Thus, the primary issue is whether the icy sidewalk was effect ively unavoidable, thereby creating an unreasonable risk of harm, which would preclude app lication of the open and obvious doctrine. Plaintiff fell on her way back into the buil ding after going outside to warm her car up. In her deposition, plaintiff admitted that there were several routes back to the building. In her response to defendant’s motion for summary disposition, plaintiff argued that while there may have been alternate routes, it is speculation whether any o f these routes, including walking across grass “saturated with water and ice,” were any safer tha n walking on the sidewalk. In plaintiff’s deposition, when asked why she did not choose to wa lk across the grass, plaintiff answered that “[t]he grass was very wet.” Plaintiff did not st ate that she had any concern about the grass being slippery.

Additionally, plaintiff argued that there was only one unlocke d door back into the building, further implying that she did not have a choice in he r route back to the building. In her deposition, however, plaintiff st ated that there were several e ntrance and exit doors, all of which she could use if she wanted to. She also confirmed that she on ly chose that particular door because that is where she parked.

Lastly, plaintiff argued that bec ause she had to retrieve her personal belongings from the building, the icy sidewalk was effectively unavoidable. In sup port of her argument, plaintiff relies on an unpublished case; however, unpublished opinions ar e not binding on this Court and there are precedential cases that provide better guidance in th is matter.

In Lymon , this Court specifically discusses the idea of walking on gras s as an alternate route where the defendant’s dri veway was covered in snow and ic e. Lymon , 314 Mich App at 761-762. There, the plaintiff was employed as an aide for an e lderly lady in the defendant’s residence. Id . at 1. In order to reach her pa tient, the plaintiff had to wa lk up a very steep snowand-ice covered driveway or a ve ry steep snow-and-ice-covered y ard. Id . at 8. This Court found that the plaintiff was compelled to enter the premises to assis t her patient, who required the plaintiff’s care. Id . This Court also considered whether the plaintiff had an alte rnate route through the yard and reasoned that there was “a question of fac t as to whether the yard provided a viable alternative route” because the yard was steep and also presented a slippery hazardous condition. Id . at 9. This Court contrasted t his plaintiff’s circumstances w ith the plaintiff in Joyce v Rubin , 249 Mich App 231, 238; 642 NW2d 360 (2002), where the plainti ff slipped and fell on the defendant’s snowy sidewalk while trying to retrieve her personal belongings. Lymon
, 314 Mich App at 761. In Joyce , this Court reasoned that the p laintiff could have retrieved h er belongings another day or could h ave used an alternate route to access the house, even though plaintiff argued that the defendants refused her access to an a lternate route. Id . at 7. Therefore, in Lymon , this Court held that there was a question of fact as to wheth er the dangerous condition was effectively unavoidable where the plaintiff was confronted with potentially dangerous conditions for all r outes to the house. Id. at 9.

This case is distinguishable from Lymon . Unlike the plaintiff in Lymon , plaintiff did have an alternate route back to the building. Plaintiff testified t hat she had alternate routes back to the building. Even if we were to assume that other sidewalks or pa ved surfaces were also icy,-4- plaintiff stated that her reas on for not walking across the gra ss was that it was “very wet.” She did not express concern that the grass was slippery or created any other hazard. L ike the plaintiff in Joyce , plaintiff had an alternate route to the building. Therefore, even if plaintiff were compelled to go back to the building, she had an alternate rout e. Thus, the dangerous condition was avoidable.

In summary, the evidence demonstrates that plaintiff chose to cross the icy sidewalk multiple times, despite being aware of the ice and the potentia l for falling and having the choice not to do so. Plaintiff chose to go warm her car and walk back to the building (and would have likely crossed the ice a third time on her way back out to her car had she not slipped and fell), rather than make one trip out to her car at the end of her shif t. Even viewing the evidence in the light most favorable to the plaintiff, it is hard to ignore tha t plaintiff’s deposition testimony, which was under oath, does not exa ctly line up with her argumen ts in her response to defendant’s motion for summary disposition. U nder oath, plaintiff admitted that there were alternate routes back to the building, including the grass, but she chose to cro ss the icy sidewalk to her car and back, fully aware that she coul d slip and fall. This Court has held that where a plaintiff has the choice whether to confront a ha zardous condition, the condition is not effectively unavoidable. Hoffner , 492 Mich at 469. Therefore, the trial court correctly found that there was no genuine issue of material fact as to w hether the hazardous condition wa s open and obvious and that there were no special aspects that w ould preclude application of the open and obvious doctrine.

Affirmed.

/s/ Jane M. Beckering /s/ David H. Sawyer /s/ Henry William Saad