Slipp/ Fall statutory v common law duty, burden of proof

The court held that the plaintiff adequately alleged that the defendant, by failing to repair and maintain its leaky gutter, violated statutory duties under MCL 554.139 and MCL 125.471. Although the court agreed with the trial court that the hazard was open and obvious, it reversed and remanded based on an applicable statutory duty. Plaintiff's case arose from a fall that occurred in the parking lot of defendant's premises on 3/23/08, after a storm that resulted in 4 to 6 inches of snow. At the time, her car was parked outside and was uncovered. She went outside to clean off her car. When she walked outside, she saw that both the sidewalk and parking lot were clear of snow, but there was four to six inches of snow on the grass. She went to her car, retrieved her snow brush, and cleaned off the passenger side. As she was walking around the rear of her car, she slipped and fell. She said that a patch of ice caused her fall, and described the ice patch as being two feet wide and two or three feet long. She also said it looked like the ice was running out from under her car, it was black, hard to see in the shadow of the car, and there was snow on it. She further said that she first saw the ice as she stepped on it and she was unable to stop. Plaintiff filed a complaint alleging defendant was negligent in its maintenance of the parking lot, walk ways, and gutters. She claimed that the negligence arose from breaches of statutory and common law duties. As a result of that negligence, she claimed black ice accrued on the parking lot, was not timely removed, and that the black ice caused her to fall and suffer injuries, and "severe shock, fright, and mental anguish." Plaintiff's expert opined that the temperature rose and melted the snow on the roof and if the gutter leaked it would form black ice on the surface below. Defendant moved for summary disposition, which the trial court granted concluding that the icy condition was open and obvious and the alleged gutter leak did not rise to the level of disrepair. The trial court also held that she failed to establish an applicable statutory duty. Plaintiff contended that the condition causing her fall was not open and obvious because it was invisible since it did not have snow on it. The court concluded her argument was not supported by the record. Just because she did not see the ice until she could not avoid it, did not mean that it was not visible on casual inspection. At best, her testimony showed that her failure to see the ice could be attributed to the fact it was behind her vehicle and she came in contact with it immediately after walking from the side of the vehicle. An average Michigan resident would be cautious of encountering slippery conditions. Thus, the condition was open and obvious. Plaintiff also alleged that defendant violated its statutory duties when it failed to fix the leaky gutter. Defendant offered no authority for the notion that it was not statutorily required to maintain the gutters. The court held that the alleged hazard was open and obvious, but plaintiff had adequately alleged defendant, by failing to repair the gutter, violated its statutory duty.