White v. Sunrise Rochester Assisted Living, LLC

Filing 19

ORDER granting 13 Motion for Summary Judgment. Signed by District Judge Julian Abele Cook. (KDoa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PATRICIA WHITE,
Plaintiff,
v.
SUNRISE ROCHESTER ASSISTED LIVING, LLC,
and SUNRISE SENIOR LIVING MANAGEMENT,
INC.

Case No. 11-14073
Honorable Julian Abele Cook, Jr.

Defendant.

ORDER
This civil action involves a complaint by the Plaintiff, Patricia White, who has accused the
Defendants, Sunrise Rochester Assisted Living, L.L.C1. and Sunrise Senior Living Management,
Inc. of being responsible for the injury that she sustained while visiting an assisted living facility
owned by the Defendants.
Currently pending before the Court is Sunrise Senior Living Management’s (“Sunrise”)
motion for the entry of a summary judgment. (ECF 13).
I.
During the early morning hours of January 18, 2011, White entered the Sunrise facility to
visit a resident to whom she had rendered professional care as a private health care aide. White had

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The parties stipulate that Sunrise Rochester Assisted Living, LLC was incorrectly named
as a party. The Court terminates this Defendant.
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visited Sunrise to care for this resident over an extended period of time (estimated by her to have
been approximately nine to sixteen visits prior to January 18th) According to White, she would
typically arrive at the Sunrise facility prior to 7am (thought by her to be between 6:35 a.m. and
6:45.a.m.) and remain there until approximately 3:00 p.m.
On January 18th, White asserts that she, while walking from the Sunrise parking lot to the
entrance of the facility, slipped and fell. As the result of the fall, she claims to have sustained a
closed head injury, as well as a multitude of other injuries to her shoulder, neck, low back, all of
which have produced a loss of memory and intermittent confusion.
This injury claim was followed several months later by a motion for summary judgment by
Sunrise who contends that there are no genuine issues of a material fact remaining in this case as
it relates to matters of liability. Hence, it is the position of this movant that it is entitled to a final
resolution of this case in its favor.
II.
The purpose of the summary judgment rule, as reflected by Federal Rule of Civil Procedure
56, “is to isolate and dispose of factually unsupportable claims or defenses . . . .” Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986). The entry of a summary judgment is proper only “if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ for purposes of summary
judgment if proof of that fact would have the effect of establishing or refuting an essential element
of the cause of action or a defense advanced by the parties.” Aqua Grp., LLC v. Fed. Ins. Co., 620
F. Supp. 2d 816, 819 (E.D. Mich. 2009) (citing Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.
1984)). In order for a dispute to be genuine, it must contain evidence upon which a trier of the facts

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could find in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 560 (6th Cir. 2004). When assessing
a request for the entry of a summary judgment, a court “must view the facts and all inferences to
be drawn therefrom in the light most favorable to the non-moving party.” 60 Ivy Street Corp. v.
Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987). The entry of a summary judgment is appropriate
if the nonmoving party fails to present evidence which is “sufficient to establish the existence of
an element essential to its case, and on which it will bear the burden of proof at trial.” Celotex, 477
U.S. at 322.
Thus, the moving party has the initial obligation of identifying those portions of the record
that demonstrate the absence of any genuine issue of a material fact. Celotex, 477 U.S. at 323.
Thereafter, the nonmoving party must “come forward with some probative evidence to support its
claim and make it necessary to resolve the differences at trial.” Boyd v. Ford Motor Co., 948 F.2d
283, 285 (6th Cir. 1991); see also Anderson, 477 U.S. at 256. The presence or the absence of a
genuinely disputed material fact must be established by (1) a specific reference to “particular parts
of materials in the record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials,” or (2) a “showing that the materials cited
do not establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
III.
In support of its motion for summary judgment, Sunrise points to the weather conditions
that existed on January 18, 2011 which, in its opinion, lessens its responsibility to White because

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ice on parking lots and sidewalks in Michigan during the winter months is considered to be an
“open and obvious” condition.
A federal court sitting in a diversity action must apply “the same substantive law that would
be applied if the action had been brought in a state court of the jurisdiction in which the federal
court is located.” Equitable Life Assur. Soc'y of the U.S. v. Poe, 143 F.3d 1013, 1016 (6th Cir.
1998) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)). “Generally speaking, a tort claim filed
in a Michigan court will be governed by Michigan law unless a rational reason exists to displace
it.” Gass v. Marriott Hotel Servs., Inc., 558 F.3d 419, 425 (6th Cir. 2009) (internal quotation marks
omitted) (citing Watkins & Son Pet Supplies v. Iams Co., 254 F.3d 607, 611 (6th Cir. 2001). Since
there is no clear reason to displace this presumption, Michigan law will be applied to the
substantive issues of this tort action.
In order to prevail in a premises liability action in Michigan, an aggrieved party must
establish that “(1) the defendant owed [it] a duty, (2) the defendant breached [its] duty, (3) the
breach caused the [claimed] injury, and (4) [she] suffered damages.” Kennedy v. Great Atl. & Pac.
Tea Co., 737 N.W.2d 179, 181 (Mich. Ct. App. 2007) (citing Jones v. Enertel, Inc., 656 N.W.2d
870, 873 (Mich. Ct. App. 2002)). The level of duty owed by a premises owner will vary depending
on the status of the aggrieved party at the time of claimed injury. Stitt v. Holland Abundant Life
Fellowship, 614 N.W.2d 88, 91 (Mich. 2000).
Invitees are individuals who enter a premises at the express or implied invitation of the
possessor of the property for the purpose of conducting some business therein. Id. at 92.Here, for
the sole purpose of this litigation, the Court will consider White to be an invitee upon the Sunrise
premises. In Michigan, the possessor of a premises has the general obligation to “exercise

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reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous
condition on the land.” Lugo v. Ameritech Corp., 629 N.W.2d 384, 386 (Mich. 2001). However,
it is important to note that this duty is not deemed to be absolute. Kennedy 737 N.W.2d at 182. As
an example, a premise owner does not have any duty to protect an invitee from those dangers that
are “open and obvious” unless there are special aspects which make the condition “unreasonably
dangerous.” Lugo, 629 N.W.2d at 386-388.On the other hand, this "open and obvious” doctrine
should not be viewed as some type of ‘exception’ to the duty generally owed invitees, but rather
as an integral part of the definition of that duty.” Id. at 386. A condition is generally open and
obvious if “an average user with ordinary intelligence would have been able to discover the danger
and the risk presented upon casual inspection.” Novotney v. Burger King Corp., 499 N.W.2d 379,
381 (Mich. Ct. App. 1993).This is an objective test and therefore, the court “looks not to whether
plaintiff should have known that the [condition] was hazardous, but whether a reasonable person
in [her position would have foreseen] the danger.” Hughes v. PMG Bldg., 574 N.W.2d 691, 696
(Mich. Ct. App. 1997). Under Michigan law, a court can consider the plaintiff's experience as a
resident of Michigan when seeking to determine if an icy condition was “open and obvious.” See
Kaseta v. Binkowski, 741 N.W.2d 15, 15 (Mich. 2007).
It is the duty of this Court to determine whether, given an “open and obvious”condition, the
risk of harm remains unreasonable despite the obviousness or despite the invitee’s awareness of the
danger. Singerman v. Municipal Service Bureau, Inc., 455 Mich. 135, 142-43 (1997).When
reviewing the applicable law in Michigan on this subject, it appears that the Michigan Supreme
Court left open two aspects in Lugo; namely, (1) whether the “open and obvious” condition is
effectively unavoidable (such as an open hazard as the only exit to a commercial building), and (2)

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if the “open and obvious” danger poses an unreasonable risk of severe harm (such as “an unguarded
30 foot deep pit in the middle of a parking lot”) Lugo, at 387.The Court finds that this case does
not satisfy either special aspect. White has not argued that the condition was effectively
unavoidable or that is posed an unreasonable risk of severe harm. Rather, White takes the position
that the weather situation on January 18th did not pose an “open and obvious” condition.
However, some courts in Michigan have opined that wintry conditions may be deemed to
be “open and obvious.” Thus, these Michigan courts ask whether the special circumstances,
including the surrounding conditions, render a snow or ice condition “open and obvious” to such
an extent that a reasonably prudent person would have foreseen the danger. Hoffner v. Lanctoe, 492
Mich. 450, 464, (2012).
In this case, White acknowledged that she had used caution (i.e., reduction in her travel
speed) while driving to the Sunrise facility during the morning of January 18th. White also stated
in her deposition that she remembered the surrounding weather conditions during her early morning
drive on January 17th (i.e., rain and snow, along with temperatures around freezing). There are
reported cases in Michigan courts which have held that black ice, and visible snow and ice are
generally regarded as “open and obvious” conditions, in the absence of unusual circumstances or
a statutory duty. See Slaughter v. Blarney Castle Oil Co., 760 N.W.2d 287, 292-93 (Mich. Ct. App.
2008); Lawson v. Norton, No. 296896, 2011 WL 2162948 at *3 (Mich Ct. App. June 2, 2011);
Benton v. Dart Properties Inc., 715 N.W.2d 335 (2006); Dombrowski v. Chapel, 2012 Mich. App.
LEXIS 794, at *22 (Mich. Ct. App. April 26, 2012).
Viewing the record in the light that is most favorable to White, the Court finds that a
reasonable jury would find that the weather conditions which surrounded White’s slip and fall were

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sufficient indicators of the dangers associated with ice. See, e.g., Kaseta, 2007 Mich. App. LEXIS
1739, at *10 (“[g]iven the temperature fluctuations of the day, a reasonable person would note the
possibility of ice forming”). Furthermore, White - a long time resident of this State - should have
been aware of the potentially hazardous condition that is associated with falling snow and ice on
roadways and walkways. See, e.g., Kenny v. Kaatz Funeral Home, Inc., 689 N.W.2d 737, 748
(2004) (Griffin, J., dissenting), adopted by 697 N.W.2d 526 (2005) (internal quotations omitted)
(“[A]s a lifelong resident of Michigan, [the Plaintiff] should have been aware that ice frequently
forms beneath snow during snowy December nights”). The weather conditions at the time of
White’s fall, coupled with the knowledge that she had implicitly acquired by virtue of her longterm residency in Michigan, would lead an average person of ordinary intelligence to foresee the
potential dangers of an icy walkway.
Accordingly, the evidence herein indicates that there is no genuine issue of a material fact
as to whether White’s claim is barred by the “open and obvious” doctrine. Having recognized that
this often quoted doctrine bars any duty by Sunrise, this Court concludes that there is no need to
consider the other elements of this premises liability action.
IV.
For the reasons that have been set forth above, Sunrise’s motion for the entry of a summary
judgment is granted. (ECF 13).
IT IS SO ORDERED.
Date: January 8, 2013

s/Julian Abele Cook, Jr.
JULIAN ABELE COOK, JR.
U.S. District Judge

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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to
their respective email addresses or First Class U.S. mail to the non-ECF participants on January 8, 2013.
s/ Kay Doaks
Case Manager

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