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A snowball's chance for success?

Byline: Lee Dryden

The often-cited notion that premises liability cases related to winter conditions are unwinnable for plaintiffs in Michigan was a discussion topic in a recent Court of Appeals opinion in the defense's favor.

In Lemmerhart v. Marciniak (MiLW No. 08-95615, 3 pages), an appeals court panel affirmed the St. Joseph Circuit Court's ruling that the ice on which the plaintiff slipped and fell was open and obvious.

The unpublished per curiam opinion issued Sept. 7 by Judges Mark T. Boonstra and Brock A. Swartzle cited the precedent in such cases, but didn't fully embrace the lower court's generalization.

"The trial court's conclusion that our Supreme Court has rendered it completely impossible in Michigan for snow and ice to ever not be open and obvious might be slightly overstated," the opinion stated.

In her concurrence, Judge Amy Ronayne Krause noted that despite "our Supreme Court's claim that a generation ago it had '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," she does not "find the trial court's statement that our Supreme Court's actual decisions reflect precisely the opposite to be unreasonable."

The case

Plaintiff Brandie Lemmerhart slipped and fell on ice in the parking lot of a skating rink owned and operated by defendants Timothy Marciniak, Judy Marciniak and Maple Park Recreation Center Inc. through the LLC.

"Plaintiff contended that the ice was present because defendants failed to install a proper gutter on the building, leading to water discharge into the parking lot, and that defendants failed to address the problem of ice in the parking lot despite having been advised of its presence earlier that day by other patrons," the opinion stated. "Plaintiff claimed both negligence and premises liability.

"The trial court implicitly concluded that plaintiff's claims sounded in premises liability and that the ice was open and obvious."

The panel pointed out that the Court of Appeals has held that the "open and obvious" doctrine applies only to premises liability claims - not negligence claims.

"However, the way in which a party frames her claim is not dispositive of whether a claim actually sounds in premises liability or ordinary negligence," the opinion stated, citing Buhalis v Trinity Continuing Care Services from 2012. "Even if a plaintiff alleges that the possessor or owner of land created a hazardous condition, if the 'injury arose from an allegedly dangerous condition on the land, the action sounds in premises liability rather than ordinary negligence.'

"The distinction is whether the claim is based on 'the overt acts of a premises owner on his or her premises' or 'injury by a condition of the land.'"

"It is inescapable from reading plaintiff's complaint and arguments that all of the allegedly negligent conduct committed by defendants pertains to the creation of, or failure to abate, a hazardous condition of the land," the opinion stated. "Defendants did not, for example, push plaintiff over, or turn off the lights as soon as plaintiff reached a treacherous part of a walkway. In other words, defendants did not even allegedly engage in any conduct that directly harmed plaintiff. The trial court did not state in so many words that it found plaintiff's claim to be exclusively one for premises liability and not negligence, but it did impliedly so hold, and that was the correct conclusion."

If no special circumstances are present, Michigan courts have "generally held that the hazards presented by snow, snow-covered ice, and observable ice are open and obvious and do not impose a duty on the premises possessor to warn of or remove the hazard," the court stated, citing Slaughter v Blarney Castle Oil Co from 2008.

Ronayne Krause stated in her concurrence that she wrote separately primarily because she "would not dismiss plaintiff's argument pertaining to the illumination level in the skating rink's parking lot merely because counsel expressed at oral argument a lack of confidence in that argument."

"Although I conclude that plaintiff did not sufficiently establish a cause of action on that basis, I also conclude that such an argument is not intrinsically unsupportable," she wrote.

Ronayne Krause concurred with the majority because "there simply was no other evidence presented establishing how dark the parking lot was at the time of the incident."

Attorney analysis

Defendants' counsel Dan E. Bylenga of Chase Bylenga Hulst PLLC in Grand Rapids said he believes the trial court and Court of Appeals "recognized that premises liability cases involving a slip and fall on ice are very difficult but not impossible cases from a plaintiff's perspective."

"They applied the prevailing law in Michigan which recognizes that perfection is neither practicable nor required of property owners and that under ordinary circumstances the overriding public policy is to encourage people to take reasonable care for their own safety," he said.

Bylenga said it is clear that both courts "recognized that the gravamen of plaintiff's claim sounded in premises liability."

"This is important because the open and obvious defense only applies to claims for premises liability and does not apply to claims of negligence," he said.

"This was clearly a premises liability case. The facts relied upon by plaintiff demonstrated that the condition complained of that gave rise to plaintiff's injury was a condition of the premises and not the result of ordinary negligence."

Plaintiff's counsel Roger A. Bird did not respond to requests for comment.

If you would like to comment on this story, email Lee Dryden at

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Title Annotation:Lemmerhart v. Marciniak; Michigan
Author:Dryden, Lee
Publication:Michigan Lawyers Weekly
Date:Sep 21, 2017
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