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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UNPUBLISHED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.

GLEICHER, J. (concurring).

I concur in full with the majority opinion. I write separately to respectfully respond to 

the dissent’s open and obvious danger analysis.

The dissent tacitly admits that a fact question exists regarding whether the ice on which 

plaintiff fell was visible on casual inspection. That fact question is not material, the dissent 

insists, because the surrounding wintery conditions supplied “visual clues” of dangers that might 

be present, rendering the ice open and obvious as a matter of law. 

This approach comes dangerously close to resurrecting the natural accumulation doctrine, 

which our Supreme Court discarded in Quinlivan v Great Atlantic & Pacific Tea Co, Inc, 395 

Mich 244, 261; 235 NW2d 732 (1975). Moreover, the dissent’s focus on the weather is 

misplaced. This is a premises liability case, which means that the legal issues relate to the 

condition of the land rather than the status of the climate. 

Quinlivan is instructive on both scores. The plaintiff in that case parked in a “snowcovered and icy” grocery store parking lot, took several steps, and fell. Id. at 247. He alleged 

that “defendants negligently permitted a dangerous icy condition to exist in the parking lot area,”

and a jury agreed. Id. at 248. This Court reversed, invoking the reasoning of the natural 

accumulation doctrine. That doctrine holds that a premises owner is not liable for injuries due to 

the natural accumulation of snow and ice. See Quinlivan v Great Atlantic & Pacific Tea Co, Inc, 

51 Mich App 242, 244; 214 NW2d 911 (1974). This Court’s opinion highlighted that during the 

week before Mr. Quinlivan’s injury, 4.3 inches of snow fell and the “parking lot surface was 

covered with icy patches, dry patches, and piles of snow.” Id. Because no evidence supported 

that the defendant had “increased the hazard created by the natural accumulation of snow and 

ice,” this Court reversed the jury’s verdict.
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The Supreme Court emphatically rejected that wintery conditions relieve a premises 

owner of the responsibility to exercise reasonable care. A unanimous Court adopted the Alaska 

Supreme Court’s approach to the duty owed to invitees during winter, expressed in Kremer v 

Carr’s Food Ctr, Inc, 462 P2d 747 (Alas, 1969). In Kremer, the Alaska Supreme Court held that 

snowy surroundings do not eliminate a landowner’s duty of care:

The mere fact that snow and ice conditions prevail for many months throughout 

various locations in Alaska is not in and of itself sufficient rationale for the 

insulation of the possessor of land from liability to his business invitee. Nor do 

such climatic conditions negate the possibility that the possessor should have 

anticipated harm to the business invitee despite the latter’s personal knowledge of 

the dangerous snow and ice conditions or the general obviousness of such 

conditions. [Id. at 752 (emphasis added).]

In Quinlivan, 395 Mich at 261, our Supreme Court borrowed the reasoning of the Alaska 

Supreme Court, rejecting “the prominently cited notion that ice and snow hazards are obvious to 

all and therefore may not give rise to liability.” The Court expressed that although an invitor 

does not guarantee an invitee’s safety, “the invitor has a duty to exercise reasonable care to 

diminish the hazards of ice and snow accumulation.” Id. This requires “that reasonable 

measures be taken within a reasonable time after an accumulation of ice and snow to diminish 

the hazard of injury to the invitee.” Id. In regard to Mr. Quinlivan, the Court summarized:

Evidence at trial indicated that at the time of the accident the parking lot was ice 

and snow covered and very slippery. Snow had not fallen for several days and 

there was no evidentiary indication that salt had been applied to the parking lot 

surface. Measuring the appropriate duty against the evidence, the jury could have 

permissibly determined that A & P’s failure to exercise reasonable care caused 

plaintiff's injuries. [Id. at 261.]

This case differs from Quinlivan in a meaningful way. Here, the parking lot was not ice 

and snow covered. But the Supreme Court’s holding in Quinlivan means that even when wintry 

conditions abound, a premises owner maintains a duty of due care. In other words, mere “visual 

clues” of winter do not abrogate the invitor’s duty of care. Indeed, the Supreme Court in 

Quinlivan strenuously rejected “the prominently cited notion that ice and snow hazards are 

obvious to all and therefore may not give rise to liability.” And unlike in Quinlivan, here there 

were no clues on the premises that the area around the gas pumps was dangerous.

Despite this factual distinction, Quinlivan guides my respectful rejection of the dissent’s 

analysis. Even in the winter, the time-honored principles of premises liability law apply. When

snow covers the ground and patches of ice are in view, an invitor nevertheless “has a duty to 

exercise reasonable care to diminish the hazards of ice and snow accumulation[.]” Hoffner v 

Lanctoe, 492 Mich 450, 464; 821 NW2d 88 (2012). The dissent goes astray, I believe, by 

conflating wintry conditions with an open and obvious danger created by a condition on the 

premises.

Objectively (and as the dissent concedes), whether the ice on which plaintiff slipped was 

“open and obvious” is a subject of dispute in this case. The weather conditions, the dissent 
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argues, tip the legal scale toward a finding of no duty. According to the dissent, the condition of 

the environment, rather than the condition of the premises, defines the landowner’s duty. I 

submit that Quinlivan repudiated this reasoning. But even if that case is distinguishable for 

reasons I cannot fathom, I would find the dissent’s argument logically flawed.

This is a premises liability case. In a premises liability action, we focus on the condition 

of the premises. When evaluated in the light most favorable to plaintiff, the gas station premises 

did not reveal any ice. That is not to say that the surrounding weather conditions are irrelevant. 

Whether plaintiff should have expected to encounter ice based on the temperatures and the 

climatic changes that occurred over the course of that day raises a question of comparative 

negligence, and not duty. See Quinlivan, 395 Mich at 261: “The conduct of the invitee will often 

be relevant in the context of contributory negligence.”

I agree with the dissent in this repsect: this Court’s “decisions have been somewhat 

inconsistent in this area of the law.” Our Supreme Court has contributed to the inconsistencies. 

In Lugo v Ameritech Corp, Inc, 464 Mich 512, 523-524; 629 NW2d 384 (2001), the Supreme 

Court instructed that “it is important for courts in deciding summary disposition motions by 

premises possessors in ‘open and obvious’ cases to focus on the objective nature of the condition 

of the premises at issue, not on the subjective degree of care used by the plaintiff.” Indeed, the 

Lugo Court chastised the circuit court for engaging in precisely the same reasoning as advanced 

by the dissent:

The trial court’s remarks indicate that it may have granted summary disposition in 

favor of defendant because the plaintiff “was walking along without paying 

proper attention to the circumstances where she was walking.” However, in 

resolving an issue regarding the open and obvious doctrine, the question is 

whether the condition of the premises at issue was open and obvious and, if so, 

whether there were special aspects of the situation that nevertheless made it 

unreasonably dangerous. In a situation where a plaintiff was injured as a result of 

a risk that was truly outside the open and obvious doctrine and that posed an 

unreasonable risk of harm, the fact that the plaintiff was also negligent would not 

bar a cause of action. This is because Michigan follows the rule of comparative 

negligence. Under comparative negligence, where both the plaintiff and the 

defendant are culpable of negligence with regard to the plaintiff’s injury, this 

reduces the amount of damages the plaintiff may recover but does not preclude 

recovery altogether. [Id. at 523.;]

Yet, as the dissent points out, the Supreme Court’s orders in Janson v Sajewski Funeral 

Home, Inc, 486 Mich 934, 935; 782 NW2d 201 (2010), and Cole v Henry Ford Health Sys, 497 

Mich 881; 854 NW2d 717 (2014), seem to support that wintry conditions factor into the open 

and obvious danger analysis. I respectfully disagree with the dissent’s interpretation of those 

orders. But to the extent that the orders shifted the focus from the objective condition of the 

premises to the plaintiff’s subjective degree of care, I find them unhelpful and at odds with Lugo. 

In Cole, 497 Mich at 881, the Supreme Court cited “indicia” of winter—snow on the 

ground, temperatures below freezing, and recent precipitation—as support for the proposition 

that “A reasonably prudent person would foresee the danger of icy conditions on the mid-winter 
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night the plaintiff's accident occurred.” In Janson, 486 Mich at 935, the Court expounded: 

“These wintry conditions by their nature would have alerted an average user of ordinary 

intelligence to discover the danger upon casual inspection.” These comments about the weather 

have nothing to do with the objective conditions of the land. Rather, they relate solely to the 

plaintiffs’ failure to use due care under the prevailing climatic circumstances by watching out for 

possible dangers. The orders speak in the language of comparative negligence, not duty. 

In my view, the weather conditions that existed when plaintiff Ken Young fell should 

inform whether either he or defendant breached their respective duties of care, not whether such 

duties existed in the first place. Hazardous conditions in the environment—snow, fog, fireworks, 

barking dogs—may support that a party negligently failed to heed warnings of danger. But such 

conditions do not negate the duty of reasonable care owed to an invitee.

/s/ Elizabeth L. Gleicher