Premises liability; Slip & fall on black ice; Open & obvious danger; Special aspects

The court concluded that when viewed in the light most favorable to plaintiff-Bittner, the evidence did not establish sufficient “‘indicia of a potentially hazardous condition,’ including the ‘specific weather conditions present at the time of [Bittner’s] fall’” to determine that the black ice he slipped on was an open and obvious danger. Thus, the court reversed the trial court’s grant of summary disposition to defendant-Coffee Capers after it held that the black ice was an open and obvious danger and that no special aspects were present. The court determined that viewing “the evidence in the light most favorable to plaintiff, there was evidence that when he fell the weather had been above freezing for at least eight hours, there was misting rain that made the ground wet, and neither ice nor snow was visible outside the coffee shop. Although it may have been below freezing the day before, the lack of visible ice and snow carry more weight and the record does not address when the last snowfall was. A rainy day with sustained temperatures near 40 without any visible ice or snow, even in January, does not put a reasonable person on notice that there may be black ice on which he could slip. And, while temperatures near 40 might suggest that black ice was not present—calling into question the accuracy of Bittner’s recall—ice in Michigan can take hours to melt, and it is not so fantastical a scenario to make Bittner’s recollection implausible on summary disposition.”