Pogue v. Speedway LLC

Filing 19

OPINION AND ORDER Granting 12 Motion for Summary Judgment. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Gary Pogue,
Plaintiff,
v.

Case No. 15-12549

Speedway SuperAmerica, LLC,

Sean F. Cox
United States District Court Judge

Defendant.
____________________________/
OPINION & ORDER
GRANTING MOTION FOR SUMMARY JUDGMENT
This is a premises liability case under Michigan law. Plaintiff filed suit against
Defendant after Plaintiff claims to have slipped on some ice at Defendant’s gas station in
Canton, Michigan on March 8, 2015. The matter is currently before the Court on Defendant’s
Motion for Summary Judgment. The parties have briefed the issues and the Court heard oral
argument on September 15, 2016. For the reasons set forth below, the Court shall GRANT the
motion.
BACKGROUND
Plaintiff Gary Pogue (“Plaintiff” or “Pogue”) filed suit against Defendant Speedway
SuperAmerica, LLC (“Defendant” or “Speedway”) in state court. Speedway removed the action
to this Court, based upon diversity jurisdiction.
Following the close of discovery, Speedway filed the instant Motion for Summary
Judgment. This Court’s practice guidelines, which are expressly included in the Scheduling
Order issued in this case, provide, consistent with Fed. R. Civ. P. 56 (c) and (e), that:

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a. The moving party’s papers shall include a separate document entitled
Statement of Material Facts Not in Dispute. The statement shall list in separately
numbered paragraphs concise statements of each undisputed material fact,
supported by appropriate citations to the record. . .
b. In response, the opposing party shall file a separate document entitled
Counter-Statement of Disputed Facts. The counter-statement shall list in
separately numbered paragraphs following the order or the movant’s statement,
whether each of the facts asserted by the moving party is admitted or denied and
shall also be supported by appropriate citations to the record. The CounterStatement shall also include, in a separate section, a list of each issue of material
fact as to which it is contended there is a genuine issue for trial.
c. All material facts as set forth in the Statement of Material Facts Not in Dispute
shall be deemed admitted unless controverted in the Counter-Statement of
Disputed Facts.
(Docket Entry No. 6 at 3).
In compliance with this Court’s guidelines, in support of their Motion for Summary
Judgment, Speedway filed a “Statement of Material Facts Not In Dispute” (Docket Entry No. 13)
(“Defs.’ Stmt.”). In response, Pogue filed a response to Speedway’s Statement (Docket Entry
No. 16) (Pl.’s Stmt.”) but Pogue’s Statement does not identify any claimed issues of fact for trial
in it1. Pogue also denies some facts asserted by Speedway but provides no evidentiary support
for those denials.
The following relevant material facts are gleaned from the evidence submitted by the
parties, viewed in the light most favorable to Pogue, the non-moving party.
The present case arises out of an alleged slip and fall that occurred on March 8, 2015, at
approximately 9:00 a.m. (Def.’s Stmt. & Pl.’s Stmt. at ¶ 1; Pl.’s Dep. at 19).
Pogue is a Michigan resident. (Compl. at 1). Pogue testified that it was dry and cold on
1

Rather, Pogue inserts a “Counter Statement of Facts” in his Response Brief.
2

March 8, 2015. (Pl.’s Dep. at 22).
Weather reports from the date of the incident, and the days preceding it, indicate that
nearby Detroit Metro Wayne County Airport had temperatures ranging from 25 to 43 degrees.
(Def.’s Stmt. & Pl.’s Stmt. at ¶ 92; Def.’s Ex. G). Those records indicate that while there was no
precipitation on March 8, 2015, there was twelve inches of snow on the ground. (Id.).
Still photos taken from surveillance video at the gas station on the date in question show
that there was snow and/or snow banks on the grassy areas surrounding the gas station. (Def.’s
Ex. C).
On March 8, 2015, Pogue was in the process of moving his personal property into a new
home. (Pogue Aff. at ¶ 2). After departing his home, he noticed that the gas tank in his truck was
nearly empty. (Id. at ¶ 3).
Pogue pulled into a Speedway gas station on Ford Road in Canton, Michigan. (Compl. at
¶ 4). Pogue states that was the nearest gas station to him at the time he stopped. (Pogue Aff. at
¶ 5). He states that “it appeared that there was only one vacant gas pump available” and he
pulled up next to it. (Id. at ¶¶ 7-8). Pogue testified that he was gassing up his truck so that he
could move. (Pogue Dep. at 32).
Pogue testified that he fell when he exited his vehicle to begin pumping gas. (Def.’s
Stmt. & Pl.’s Stmt. at ¶ 2). Pogue did not look down at the ground before stepping out of his
vehicle. (Id. at ¶ 3).
After he fell, Pogue got up, walked into Speedway’s store, and reported his fall. (Def.’s
Stmt. & Pl.’s Stmt. at ¶ 5). Speedway employee Sara Morgan was working on the day in

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Erroneously numbered as the second paragraph “9” in Defendant’s Stmt.
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question. (Morgan Affidavit, Ex. E to Def.’s Br.).
After Pogue reported that he had fallen, Morgan followed Pogue out to the location
where he had fallen and took a photo of that area. (Id.). The photo that Morgan took is attached
to her Affidavit. (See Def.’s Ex. E).
Another similar photo was taken. Pogue testified at his deposition that the ice on which
he slipped was accurately depicted in a photograph, that he had produced during discovery, that
was shown to him at his deposition:
Q.

A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
A.

Okay. I’m going to show you a photograph that was attached to your
Answers to Interrogatories. I will show you those as well, but tell me – I
will show it to both you and your attorney.
Mm-hmm.
Do you recognize that photograph?
I recognize my feet and the tire of my truck, yes.
Okay. Do you know who took that photograph?
No.
Okay. What that photograph taken on the date of the incident at issue, if
you know?
Yes.
Does that photograph accurately depict the scene of the incident at the
time it occurred?
Yes.
Is that the ice – is this the area of ice that I’m circling around with my pen
on which you slipped and fell, sir?
Yes.

(Pogue Dep. at 24) (emphasis added).
Although Pogue testified that the above photograph accurately depicted the ice, Pogue
then testified that the ice looked like cement to him:
Q.
A.
Q.
A.
Q.

Thank you. You can see the ice visibly with your own eyes, is that
correct, sir?
It looked like cement to me.
It looked like cement?
(Indicating affirmative).
I’m sorry?
4

A.

It looked like cement, mm-hmm.

(Id.).
Morgan testified that after Pogue came in reporting that he had fallen, she followed
Pogue outside to the spot where he had fallen. (Morgan Dep. at 30). Morgan further testified:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.

A.

Were you able to observe upon casual inspection the ice that apparently
Mr. Pogue fell on ?
Yes, I seen it.
Was it easy to observe?
After I made my way about his truck, yes.
Was there anything covering it?
No.
Was his car over the patch of ice?
No, he was right beside it.
Do you think if Mr. Pogue had looked down, he would have had any
problem seeing the ice?
MR. HAMOOD: Form and foundation.
If he would have looked down, yes, but a lot of people don’t look down
when they get out of their car.

(Morgan Dep. at 31). Morgan testified that she was not able to see the patch of ice at issue from
the window inside of the Speedway station (Id. at 33) but that she would have seen the ice patch
had she gone outside to the area by the pump. (Id. at 34).
After reporting his fall to Morgan, Pogue walked back to the same gas pump and filled
his truck up with gas. (Pogue Dep. at 26-27). He then left the station.
STANDARD OF DECISION
Summary judgment will be granted where there exists no genuine issue of material fact.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuine issue of material fact
exists where “the record taken as a whole could not lead a rational trier of fact to find for the
non-moving party.” Matsushita Elect. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986). “The mere existence of a scintilla of evidence in support of the Pogue’s position will be
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insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”
Anderson, 477 U.S. at 252.
The Court “must view the evidence, all facts, and any inferences that may be drawn from
the facts in the light most favorable to the non-moving party.” Skousen v. Brighton High Sch.,
305 F.3d 520, 526 (6th Cir. 2002). “The court’s duty to view the facts in the light most
favorable to the nonmovant does not require or permit the court to accept mere allegations that
are not supported by factual evidence.” Chappell v. City of Cleveland, 585 F.3d 901, 906 (6th
Cir. 2009). “This is so because the nonmovant, in response to a properly made and supported
motion for summary judgment, cannot rely merely on allegations but must set out specific facts
showing a genuine issue for trial.” Id.
ANALYSIS
In its Motion for Summary Judgment, Speedway asserts that it is entitled to summary
judgment in its favor because: 1) the ice on which Pogue fell was open and obvious, because
there is evidence that shows that the ice at issue was clearly visible and other indicia suggesting
the presence of ice at the gas station.; and 2) no “special aspects” existed that would remove this
case from the application of the open and obvious danger doctrine.
I.

Was The Ice Patch At Issue Open And Obvious?
Because this case is in federal court based upon diversity jurisdiction, the substantive law

of Michigan governs the claims in this case. Armisted v. State Farm Mut. Auto. Ins. Co., 675
F.3d 989, 995 (6th Cir. 2012).
In Michigan, premises liability flows from the ownership, possession, or control of the
land at issue. White v. Sunrise Senior Living Mgmt., Inc., 535 F. App’x 485, 486 (6th Cir. 2013)

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(citations omitted). The landowner’s duty depends on the status of the injured party. Michigan
law utilizes three categories: invitees, licensees, and trespassers. An invitee is an individual who
enters the land of another for a commercial purpose. Cote v. Lowe’s Home Ctr., Inc., 896
F.Supp.2d 637, 644 (E.D.Mich. 2012). The parties agree that Pogue was an invitee on
Speedway’s premises on the day he fell.
“With regard to invitees’ a landowner owes a duty to use reasonable care to protect
invitees from unreasonable risks of harm posed by dangerous conditions on the owner’s land.”
Hoffner v. Lanctoe, 492 Mich. 450, 460 (2012). But “[p]erfection is neither practicable nor
required by the law, and ‘[u]nder ordinary circumstances, the overriding public policy of
encouraging people to take reasonable care for their own safety precludes imposing a duty on the
possessor of land to make ordinary [conditions] ‘foolproof.’” Id. (citations omitted). “Thus, an
integral component of the duty owed to an invitee considers whether a defect is ‘open and
obvious.’” Hoffner, 492 Mich. at 460. “The possessor of land ‘owes no duty to protect or warn’
of dangers that are open and obvious because such dangers, by their nature, apprise an invitee of
the potential hazard, which the invitee may then take reasonable measures to avoid.” Id.
“Whether a danger is open and obvious depends on whether it is reasonable to expect that
an average person with ordinary intelligence would have discovered it upon casual inspection.
This is an objective standard, calling for an examination of “the objective nature of the condition
of the premises at issue.” Id.
Under Michigan law, “wintry conditions, like any other condition on the premises, may
be deemed open and obvious.” Hoffner, 450 Mich. at 464. In such cases, Michigan courts ask
“whether individual circumstances, including the surrounding conditions, render a snow or ice

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condition open and obvious such that a reasonably prudent person would foresee the danger.”
Id. at 464.
“Michigan courts have generally held that 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 or remove the hazard.” Slaughter v. Blarney Castle Oil Co., 281 Mich. App. 474, 481
(2008). Here, however, Pogue characterizes the ice he slipped on at the gas station as “black
ice.”
The plaintiff in Slaughter fell at a gas station while exiting her truck. The “parking lot
was paved with black asphalt, and plaintiff was not able to observe ice or snow.” Id. at 476. In
Slaughter, the Michigan Court of Appeals addressed the issue of whether “black ice” without the
presence of snow is an open and obvious danger. Id. at 475. The court noted that the “overriding
principle behind the many definitions of black ice is that it is either invisible or nearly invisible,
transparent, or nearly transparent.” Id. at 483. Accordingly, to find that an alleged black ice
condition was open and obvious requires evidence that the ice in question: 1) “would have been
visible on casual inspection before the fall;” or 2) that there existed “other indicia of a
potentially hazardous condition.” Id. at 483. That is, you only need one or the other for the
hazard to be found open and obvious.
As to the other indicia, the court explained that “Michigan winter residents know that
each day can bring dramatically different weather conditions, ranging from blizzard conditions,
to wet slush, to a dry, clear, and sunny day. As such, the circumstances and specific weather
conditions present at the time of plaintiff’s fall are relevant.” Id.
In addition,“[i]n the aftermath of Janson, the Michigan courts have taken a fairly broad

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approach in considering what ‘other indicia of a potentially hazardous condition’ will support an
open and obvious danger finding in black ice cases.” Shane v. Accor North America, Inc., 2013
WL 4070471 at * (E.D. Mich. 2013).3
As Judge Rosen discussed in another recent slip and fall case, Callewaert v. Sam’s East,
Inc., 2016 WL 140 7843 (E.D. Mich. 2016), Michigan courts frequently find alleged black ice to
be an open and obvious condition. In such cases, the court finds the ice open and obvious where
there is evidence that a person looking at the ice can see it and where there is evidence of
weather conditions that are conducive to ice formation, such as freezing temperatures or snow on
the ground.
In its Motion for Summary Judgment, Speedway asserts that the alleged black ice was an
open and obvious condition because there is evidence (photographs and witness testimony) that

3

As summarized in Shane: “In Janson, the plaintiff slipped and fell on black ice in the
defendant’s parking lot. The trial court concluded that the icy conditions in the defendant’s
parking lot were open and obvious.” See Janson v. Sajewski Funeral Home, Inc., 285 Mich.App.
396, 398 (2009). “The Court of Appeals reversed. Though the appellate court acknowledged that
the weather records and testimony indicated that the temperature remained below freezing on the
day of the incident and it had snowed earlier in the day, it found application of the open and
obvious danger doctrine inappropriate because it found “nothing in the record to show that
plaintiff saw anyone else slip on the parking lot surface, nor [was there] any indication that there
was any snow around the area where plaintiff fell.” Id. at 400, 775 N.W.2d 148, 775 N.W.2d at
151.” But the “Michigan Supreme Court reversed” and reinstated the trial court’s summary
disposition ruling. Janson, 486 Mich. at 935. The Supreme Court determined that the Court of
Appeals erred in failing to take account of all of the “specific weather conditions present at the
time of the plaintiff’s fall,” as required by Slaughter in considering “indicia of a potentially
hazardous condition.” Id. Specifically, the Court found that the lower court failed to take account
of the fact that the plaintiff’s slip and fall “occurred in winter, with temperatures at all times
below freezing, snow present around the defendant’s premises, mist and light freezing rain
falling earlier in the day, and light snow falling during the period prior to the plaintiff's fall in the
evening.” Id. According to the Supreme Court, “These wintry conditions by their nature would
have alerted an average user of ordinary intelligence to discover the danger upon casual
inspection.” Id.
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the ice was visible upon casual inspection and, additionally, there were other indicia of a
potentially hazardous condition as there were obvious winter conditions. The Court agrees.
Notably, Pogue testified that he never looked down before exiting his vehicle. Thus, this
is not a case where the plaintiff testified that he made a casual inspection of the area but did not
see the ice because it had a translucent appearance. Pogue’s assertion that the hazard was “black
ice” and would have been unable to be seen by him upon casual inspection “is mere speculation
and not supported by the record. In other words, plaintiff failed to present evidence beyond mere
speculation supporting that the hazard was not identifiable upon casual inspection” because the
evidence shows that Pogue never looked at the ground before he fell. Zyreck v. Costco
Wholesale Corp., 2014 WL 2933811 (Mich. App. 2014).
Moreover, Speedway has presented evidence to show that the ice was visible upon casual
inspection and that Pogue would have seen it had he looked at the ground. Significantly,
photographs were taken within minutes after Pogue fell and, viewed objectively, those
photographs show a patch of ice. Pogue testified that the photographs accurately depicted the
condition as it appeared on the date of the fall. In addition, Morgan testified that after she went
over to the area by the pump, she could see the ice. Morgan testified that if Pogue had looked
down, he would have seen the ice.
In addition, there is evidence of weather conditions on that date in question that are
conducive to ice formation. Pogue is a Michigan resident and he is therefore familiar with
winter conditions and the potential hazards they bring. Pogue testified that it was “cold” out on
the date at issue and the photos show that he was wearing a winter coat. Weather reports from
the date of the incident, and the days preceding it, indicate that nearby Detroit Metro Wayne

10

County Airport had temperatures ranging from 25 to 43 degrees. (Def.’s Stmt. & Pl.’s Stmt. at ¶
9; Def.’s Ex. G). Although there was no precipitation on the date at issue, the weather records
indicate that there were twelve inches of snow on the ground. The still photographs show
obvious snow mounds, in various areas, on the grounds at the gas station. (Def.’s Ex. C).
Given the evidence presented by Defendants, under an objective standard, a reasonable
person in Pogue’s position would have been able to discover the ice patch upon casual
inspection. The ice patch at the gas station was therefore open and obvious. See, e.g., Zyreck v.
Costco Wholesale Corp., 2014 WL 2933811 (Mich. App. 2014) (affirming grant of summary
disposition because ice was open and obvious where photographs submitted to the trial court
showed the ice was visible and defendant’s employee testified the ice was visible upon casual
inspection); Kosinski v. Crosswinds Cond. Assoc., 2016 WL 299736 (Mich. App. 2016)
(affirming trial court’s grant of summary disposition because ice was open and obvious where
witnesses testified that ice was visible, the plaintiff could see the ice after falling, and there were
wintry conditions that would alert an average person to discover the ice); Toney v. Jones Lang
LaSalle Americas, Inc., 2016 WL 2609650 (Mich. App. 2016) (affirming trial court’s grant of
summary disposition because ice was open and obvious where there had been snow on the
ground, there was photo of parking lot taken shortly after fall, plaintiff admitted that the photo
showed visible ice but testified the lighting and angle must have been off because she did not see
it).
If “the condition is open and obvious, a plaintiff who is injured by the condition may
avoid summary [judgment] only if there are special aspects to the condition.” Hoffner, 492
Mich. at 464.

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II.

Did Any “Special Aspects” Exist That Would Remove This Case From The
Application Of The Open And Obvious Doctrine?
In attempting to avoid a summary judgment ruling in favor of Speedway, Pogue argues

that this case presents “special aspects” which make the open and obvious danger doctrine
inapplicable.
The Michigan Supreme Court has recognized that if “special aspects” of the hazard at
issue make even an open and obvious risk unreasonably dangerous, the landowner will have a
duty to take reasonable measures to protect the invitees. Lugo v. Ameritch Corp., Inc., 464
Mich. 512, 517 (2001). The Court recognized two situations whereby a landowner has a duty to
protect invitees from an open and obvious hazard: 2) where the danger, while avoidable, poses
an unreasonably high risk of severe harm; and 2) where the danger is effectively unavoidable.
Id. at 518-19.
Here, Pogue does not argue that the ice posed an unreasonably high risk of severe harm.4
Rather, he contends that the hazard was effectively unavoidable because Pogue “was compelled
to fill his truck with gas on the date of the incident.” (Pl.’s Br. at 17). Pogue relies on Robertson
v. Blue Water Oil Co, 268 Mich. App. 588 (2005) and a recent published decision, Lymon v.
Freeland, __ Mich. App. __, 2016 WL 1228516 (March 29, 2016).
As Speedway notes, the Michigan Supreme Court effectively disavowed Robertson in
Hoffner, stating “to the extent that Michigan courts in Robertson” “alluded to a new breed of
business invitee protection, we disavow that reasoning as inconsistent with traditional principles

4

Even if Pogue had made that argument, it would fail. “Slipping and falling on an
ordinary parking lot does not present an unreasonably high risk of severe harm.” Zyrek, supra,
at * 4.
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of premises liability law.” Hoffner, 492 Mich. at 472 (emphasis added). The Michigan Supreme
Court clarified that:
when confronted with an issue concerning an open and obvious hazard, Michigan
courts should hew closely to the principles previously discussed. It bears
repeating that exceptions to the open and obvious doctrine are narrow and
designed to permit liability for such dangers only in limited, extreme situations.
Thus, an “unreasonably dangerous” hazard must be just that—not just a
dangerous hazard, but one that is unreasonably so. And it must be more than
theoretically or retrospectively dangerous, because even the most unassuming
situation can often be dangerous under the wrong set of circumstances. An
“effectively unavoidable” hazard must truly be, for all practical purposes, one
that a person is required to confront under the circumstances. A general interest
in using, or even a contractual right to use, a business’s services simply does not
equate with a compulsion to confront a hazard and does not rise to the level of a
“special aspect” characterized by its unreasonable risk of harm.
Id. (emphasis added).
In Lymon, the Michigan Court of Appeals was recently confronted with a case wherein an
open and obvious hazard existed but the plaintiff asserted that the risk was effectively
unavoidable. In Lymon, the court noted that the Supreme Court gave the following example of
an effectively unavoidable hazard in Lugo:
An illustration of such a situation might involve, for example, a commercial
building with only one exit for the general public where the floor is covered with
standing water. While the condition is open and obvious, a customer wishing to
exit the store must leave the store through the water. In other words, the open and
obvious condition is effectively unavoidable.
Lymon, supra at 5 (quoting example from Lugo, supra). The court then noted that in “Hoffner,
our Supreme Court reiterated that an ‘effectively unavoidable’ condition must be an inherently
dangerous hazard that a person is inescapably required to confront under the circumstances.’” Id.
(quoting Hoffner, supra).
The Michigan Court of Appeals concluded that there was a genuine issue of fact as to

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whether the plaintiff in the case at bar was compelled to confront the hazard under the very
unique facts presented. The plaintiff was a healthcare provider who provided in-home care for
an elderly woman who suffered from dementia and Parkinson’s disease and required “round-theclock care” and “could not be left alone.” Id. at 1. On the day in question, the plaintiff was
scheduled to relieve the prior shift and knew that the patient’s adult daughter was out of town for
the weekend. The driveway to the home was covered in snow with ice build-up underneath and
the yard appeared to be as well. The court concluded:
Contrary to Hoffner, there was a question of fact as to whether plaintiff was
compelled to confront the hazardous risk posed by the snowy and icy conditions
at the Freedland residence. Unlike the plaintiff in Hoffner, here, a reasonable juror
could conclude that plaintiff did not have a choice as to whether to confront the
icy conditions. As a home health care aide, plaintiff did not have the option of
abandoning her patient, an elderly woman who suffered from dementia and
Parkinson’s disease. Plaintiff did not confront the hazard merely because she
desired to participate in a recreational activity, but rather, a rational juror could
conclude that she was “compelled by extenuating circumstances” and had “no
choice” but to traverse the risk. Id. at 473.
In short, plaintiff arrived at a premises where she was surrounded by slippery
winter conditions. Our review of the record leads us to conclude that all routes to
the home were covered in ice and snow. Plaintiff was faced with two open and
obvious hazards that posed a danger to her safety. While other individuals were
able to successfully navigate the slippery yard to access the home, reasonable
minds could differ as to whether traversing the yard provided a viable means by
which plaintiff could have effectively avoided the slippery conditions.
Accordingly, the trial court did not err in denying defendants’ motion for
summary disposition because there was a genuine issue of material fact as to
whether the open and obvious hazard in this case contained special aspects such
that defendants retained a duty to “exercise reasonable care to diminish the
hazards of ice and snow accumulation” on the driveway and exercise “reasonable
measures ... within a reasonable time after an accumulation of ice and snow to
diminish the hazard of injury to the invitee.” Id. at 460.
Id. at 6.
This Court previously found that an issue of fact existed as to whether a hazard was

14

effectively unavoidable in Clapper v. HVM, LLC, Case No. 06-10093. In that case, the plaintiff
was staying in a hotel room on one of the upper floors when the electricity went out for an
extended period of time and the plaintiff had no choice but to walk down a darkened staircase in
order to check out of the hotel.
In all of the above examples of when the exception may apply, the invitee is able to
observe the obvious hazard, but under the unique or extreme facts is required to confront the
hazard anyway. Thus, the theoretical invitee in the Lugo example sees the open and obviously
hazardous standing water covering the floor surrounding the store’s only exit but has no choice
but to walk through the water to leave the store; the plaintiff in Clapper observed the open and
obviously hazardous darkened stairwell leading to the main floor of the hotel but given the
extended loss of power, had no choice but to walk down that darkened stairwell to check out of
the hotel; and the plaintiff healthcare provider in Lymon sees that all routes to the home of her
patient who requires “round-the-clock care” are snow and ice covered, but has to traverse those
hazardous conditions anyway because she cannot abandon her particularly vulnerable patient.
Here, however, Pogue did not observe the hazard (the ice patch) before falling. That is
because Pogue did not look at the ground before getting out of his truck and falling. Thus, unlike
the above examples, this was not a scenario wherein Pogue actually observed the ice patch near
the gas pump but because of some extreme factual circumstance was required to walk on that
patch of ice anyway. But in order to consider whether this exception to the open and obvious
doctrine should be made in this case, the Court presumes that Pogue could observe the open and
obvious hazard upon casual inspection and then consider whether the factual circumstances were
so extreme or unusual that he was effectively compelled or “inescapably required” to traverse

15

over the hazard anyway. He was not. If Pogue had noticed the obvious ice patch, among other
things,5 Pogue “could have stepped around the affected area.” Zyrek, supra, at * 4. Indeed, after
Pogue reported his fall to Morgan inside the station, Pogue walked back to the same gas pump,
was able to avoid the ice patch, successfully pumped gas into his truck, and left.
Accordingly, this case does not present any “special aspects” which make the open and
obvious danger doctrine inapplicable. Speedway is entitled to summary judgment in its favor.
CONCLUSION & ORDER
For the reasons set forth above IT IS ORDERED that Defendant’s Motion for Summary
Judgment is GRANTED and this action shall be dismissed with prejudice.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: September 20, 2016
I hereby certify that a copy of the foregoing document was served upon counsel of record on
September 20, 2016, by electronic and/or ordinary mail.
S/Jennifer McCoy
Case Manager

5

He also could have gone to another gas station, waited for another pump that did not
have any ice near it to become available, etc.
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