||Negligence & Intentional Tort
Concluding that the evidence, viewed in the light most favorable to the plaintiff, created a material question of fact as to whether there were indicia of a potentially hazardous condition, the court reversed the trial court's order granting the defendant summary disposition in this premises liability case. Plaintiff alleged that on 11/18/08, she slipped and fell on black ice in defendant's parking lot. She argued on appeal that the trial court erred in granting defendant summary disposition because there were no indicia of a potential icy condition at the time she fell. The court agreed. The evidence showed that she slipped and fell on a cold mid-November day. There was some evidence that the weather conditions "were rather wintry." However, the evidence showed that plaintiff did not see any ice before slipping and falling. She recalled that it had snowed two days before and that in the days leading to the incident, she had no trouble traversing defendant's premises. "On the day of the incident, plaintiff recalled that the porch and sidewalks were not snowy or icy." Defendant argued that there were indicia of a potentially hazardous condition. Plaintiff testified that it was "cold," and based on meteorological records the temperature was below freezing when she slipped and fell. She did not recall seeing any ice or snow in defendant's parking lot. In the days leading up to the incident, "there was mild precipitation. In particular, two days before plaintiff's fall, less than an inch of snow fell. However, there was no precipitation the day before the incident and there was also no precipitation on the day of the incident or when plaintiff traversed on defendant's premises." After the snow fall two days before, there were periods of temperatures above freezing. "While the meteorological records indicate that there were trace amounts of snow on the ground the day plaintiff fell and that it had snowed two days before, there was no evidence that there was snow present on defendant's premises or where plaintiff fell. Further, unlike in Janson, there was no precipitation on the morning of or the day before the incident." There was no mist, light freezing rain, or snow falling the day before or the day she fell. There was also no evidence that she saw anyone else slip before she fell. Like Slaughter, the facts here established "that merely because there were wintry weather conditions days prior to plaintiff's fall, ‘each day can bring dramatically different weather conditions' and these facts are not enough to render any weather-related situation open and obvious." Thus, there was a question of material fact as to whether the weather conditions would have alerted an average user of ordinary intelligence to discover the danger.