By Lee Dryden
BridgeTower Media Newswires
DETROIT - The estate of an elderly woman who slipped on black ice in a school parking lot, hit her head and later died, lost the appeal of its premises liability suit in the Michigan Court of Appeals.
In Koetsier v. Immaculate Heart of Mary, the appeals court panel affirmed the Kent County Circuit Court in ruling that the ice was open and obvious with no special aspects to render it an unavoidable hazard or uniquely dangerous.
The panel also reasoned that Anna Koetsier could have declined to attend her grandson's basketball game.
The Aug. 2 unpublished per curiam opinion was issued by Judges Joel P. Hoekstra, William B. Murphy and Jane E. Markey.
The case
On Jan. 14, 2016, the 85-year-old Koetsier slipped and fell on "so-called black ice" on an asphalt driveway on the premises of Immaculate Heart of Mary Catholic School. She suffered significant injuries when striking her head on the pavement and died the next morning, according to the appeals court opinion. The only witnesses to the fall were the decedent's daughter-in-law and grandson.
The trial court ruled that there was "no genuine issue of material fact that the hazard presented by the black ice was open and obvious without any special aspects."
COA analysis
The panel stated there is no dispute that Koetsier was an invitee entitled to the highest level of protection under premises liability law. It referenced the inquiry in Slaughter v. Blarney Castle Oil Co. (2008) of "whether 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."
"The situation involved 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. The Court held in the case before it that a question of fact remained whether 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.
"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 . . . .'"
In the current case, the parties focused on whether "other indicia of a potentially hazardous condition" existed at the time of Koetsier's fall.
"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," the opinion stated.
The witnesses testified that there was slush in the parking lot. While it did not snow on that day, weather data confirmed the temperature dropped below freezing shortly before Koetsier's arrival at the school.
"We conclude that the trial court did not err by finding that the undisputed facts showed that the alleged black ice was open and obvious because there were 'indicia of a potentially hazardous condition,' including the 'specific weather conditions present at the time of the plaintiff's fall,'" the opinion stated.
Regarding special aspects, the appeals court panel disagreed with the plaintiff's argument that that the hazard was effectively unavoidable.
"Although there was only one entrance to IHM's gym, the undisputed 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," the opinion stated. "Furthermore, even if there was only a single way to proceed toward the entrance to IHM's gymnasium, the ice on which Koetsier slipped would not qualify 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. Koetsier could have declined to attend the basketball game. Therefore, the icy hazard was not 'effectively unavoidable.'"
Attorney reaction
Plaintiff's counsel Thomas A. Kuiper said he is disappointed for his clients and disagrees with the Court of Appeals analysis. He also mentioned Slaughter as the controlling law in black ice cases.
"Unfortunately, the courts have interpreted this to mean, essentially, that if there is any wintry condition that exists then black ice becomes open and obvious, even if there are competing facts that the plaintiff would present," he said.
"In deciding a motion for summary disposition, the trial court is not allowed to weigh competing facts, yet trial courts and the appellate courts, in my opinion, do not honor this rule and decide that if there is any fact to support 'other indicia of wintry conditions,' then it can ignore the competing facts that the plaintiff presents, it does not need to view the facts in the light most favorable to the plaintiff, and it can decide as a matter of law that the plaintiff should have been aware of the black ice because there was at least one fact to support the indicia of wintry conditions."
Kuiper, of Kuiper Orlebeke PC in Grand Rapids, believes it would be helpful to practitioners if the Michigan Supreme Court "clarified what Slaughter means and clarified black ice premises liability."
Defense counsel Adam J. Brody did not comment on this case.
Published: Tue, Oct 02, 2018
