Appeals Court Holds Landlord Cannot Avoid Responsibility for Shopping Center Parking Lot Completely Covered in Ice

Michigan Case Law
Updates

Livings v Sage’s Investment Group, LLC – Unpublished MI Court of Appeals Decision, Docket No. 339152, February 26, 2019

In a 2-1 decision, the Michigan Court of Appeals affirmed a Macomb County Circuit Court’s denial of a commercial landlord’s motion for summary disposition, concluding that the landlord exercised possession and control of the parking lot and that there was a question of fact as to whether the icy parking lot condition was effectively unavoidable.

The plaintiff, Donna
Livings, was a food server at a restaurant in a commercial plaza. On the date
of the accident, Ms. Livings arrived at work early in the morning and proceeded
to the rear parking lot where she was required to park and where the only
unlocked door to the restaurant was located. The parking lot had about 6 inches
of “packed” snow and it had an appearance as a sheet of white ice. Ms. Livings
took three steps upon exiting her car and fell. She was unable to stand up on
the icy surface and had to crawl across the parking area and walk through a
snowbank in order to get to the restaurant.

The commercial landlord
argued that it was not in possession and control of the parking lot and,
therefore, could not be held liable. The Court disagreed, holding that the
landlord possessed and controlled the lot based on the fact that it exclusively
chose the snow removal company and it charged the plaza tenants a fee for snow
removal and salting services.

The landlord further
argued that, even if it had possession and control of the parking lot, the ice
on the surface was open and obvious and not effectively unavoidable. The Court
agreed that the condition was open and obvious, but concluded that there was a
question of fact as to whether any part of the parking lot was in a reasonably
safe condition for someone to walk across it and report for work. Specifically,
the Court held that there was evidence that the entire parking lot had become a
sheet of white ice, or one big block of ice, due to 2 months’ accumulation of
snow packed down by cars and the complete failure to salt the lot all winter
and, it was effectively unavoidable for anyone and everyone coming from or
going to the restaurant.