“Black ice” slip-and-fall at a gas station; Whether the plaintiff’s complaint sounded in ordinary negligence; Open and obvious doctrine; Buhalis v. Trinity Continuing Care; Adams v. Adams (On Reconsideration); Wheeler v. Central MI Inns, Inc.; Slaughter v. Blarney Castle Oil Co.; Janson v. Sajewski Funeral Home, Inc.

[Unpublished opinion.] The court held that viewing the evidence in the light most favorable to the nonmoving party, “there was a dispute about whether a reasonable person upon casual inspection, given the surrounding conditions, would have foreseen the possibility that black ice existed and was a threat to” the plaintiff’s safety. He arrived at defendant’s gas station and parked at the same pump where a woman had spilled gas earlier. He testified that “while he was pumping his gas, one of defendant’s employees was throwing water on the gas spill behind” his van. He walked around the front of his van to avoid the employee tossing water in the rear. He slipped and fell while he was talking to a friend nearby. He argued that his complaint sounded in ordinary negligence, thus falling outside the purview of the open and obvious doctrine. The complaint used terminology such as “premises” and alleged that defendant had a duty to maintain the premises to protect invitees from “dangerous conditions.” Also, it contained no separate count labeled “negligence.” The court held that plaintiff’s claim sounded in premises liability. He further contended that the black ice was not open and obvious. The court held that there was a dispute as to whether the black ice was an open and obvious danger. While plaintiff’s friend testified “about an ice storm and misting, no other witness, including plaintiff, could recall these conditions, and an expert witness who analyzed meterological data made no mention of these conditions but instead stated that ‘conditions . . . caused ice to form next to Defendant’s gas pumps in an area where snow melt fell from the above awning onto the pavement . . . the same area where one of Defendant’s employees dumped a bucket of water about thirty minutes earlier.’” Plaintiff’s friend testified that “the ice he alleged was covering the premises was difficult to see.” Also, one of defendant’s employees testified that “there was only a very small patch of ice on the premises, in the area where plaintiff fell. Finally, the parties offered differing interpretations of video evidence, with defendant alleging in its brief that a video showed obvious ice, and with plaintiff’s expert stating that video footage showed no obvious ice.” Reversed and remanded.