Where a defendant hotel was awarded summary disposition in a slip-and-fall action, a remand must be ordered in light of Kandil-Elsayed v F&E Oil, Inc , 512 Mich 95; 1 NW3d 44 (2023).
“Relying on caselaw standing for the proposition that black ice is an open and obvious hazard, the trial court granted defendant’s motion. Plaintiff moved for reconsideration, which the trial court also denied. Plaintiff now appeals, asserting that under the new framework for premises-liability claims provided in Kandil-Elsayed v F&E Oil, Inc , 512 Mich 95; 1 NW3d 44 (2023), summary disposition was improper. We agree.
“Here, the trial court granted summary disposition to defendant, concluding that black ice was open and obvious. The trial court heard and decided this motion before the Kandil-Elsayed opinion was issued. However, because the open and obvious nature of a dangerous condition no longer precludes the existence of a duty, summary disposition for want of a material question of fact regarding duty cannot be upheld in the wake of Kandil-Elsayed .
“The standard for assessing whether a danger is open and obvious remains objective. Id. However, viewing the evidence in the light most favorable to plaintiff, questions of fact exist regarding breach and whether the ice was open and obvious.
“Defendant provided an affidavit from one of the employees working at the time of plaintiff’s fall, [Brenda] Brownlee, who attested that before 6:30 a.m. that day, the cement approach to the side entrance was shoveled and salted. Around 6:30 a.m., she was alerted and encountered plaintiff on the cement approach, and there was light snow accumulation just before. Brownlee did not observe ice on the cement approach, but said that it had a ‘darkened, ‘wet’ appearance.’ Bruner testified that he had stayed at the hotel 8 to 10 times prior, and used the second entrance door frequently. He also testified that right above the exterior door of the second entrance there were typically icicles on the roof, so when it warmed up the icicles melted in front of the door then refroze at night, and that area typically looked wet. It looked wet that day, and there was no salt down; however, usually that area is salted. Lastly, plaintiff testified that after he fell, one of the hotel employees started spreading salt that was kept between the interior and exterior door around plaintiff’s head where he lay on the pavement. Plaintiff testified that one of the employees said, ‘“This sidewalk re-froze again. It’s always refreezing.”’ Based on this evidence, reasonable minds could disagree about whether defendant took appropriate measures to reduce the hazard posed by the ice outside the second entrance and whether an average person with ordinary intelligence would have discovered it upon casual inspection. ... As such, defendant was not entitled to summary disposition under MCR 2.116(C)(10).
“The trial court order granting defendant summary disposition is reversed, and this matter is remanded to the trial court for further proceedings.”
Taylor v. Soo Hotels Inc; MiLW 08-108011, 5 pages; Michigan Court of Appeals unpublished per curiam; Jansen, J., Murray, J., O’Brien, J.; on appeal from Chippewa Circuit Court; Matthew S. Payne for appellant; William P. Slough for appellee.
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