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140385 - Brown v Taubman Co

Irene M. Brown and Gary N. Brown,
Mark W. Peyser
(Appeal from Ct of Appeals)
(Oakland – Nichols, R.)
Taubman Company, L.L.C., Southeast Service Corporation, d/b/a SSC Service Solutions, and IPC International Corporation,
James W. Rose


The slip-and-fall giving rise to this lawsuit occurred on January 26, 2006, at the Great Lakes Crossing Shopping Center in Auburn Hills, Michigan. According to plaintiff Irene Brown, she was on her way into the mall at about 8 p.m. when she encountered a slippery spot on a covered walkway leading to the mall entrance; Brown lost her balance and fell. When she first tried to get up, her foot again slipped from underneath her. Brown got up and went into the mall, where she reported to security that she had fallen on black ice on the walkway.

Brown and her husband sued the Taubman Company, which owns the shopping center property, and two other defendants. Evidence was presented that there had been sleet, ice, and light snow on the days before Brown’s accident, and snow removal services had been called in. A weather service reported that temperatures on the day of the accident, January 26, ranged from between 22 and 32 degrees. A snow removal company employee testified that there was visible snow about two feet from where Brown claimed to have fallen. One witness confirmed the presence of an icy patch, one foot by three feet, on the walkway, but a witness who returned after Brown’s fall to salt the area could not locate the icy patch. Brown testified that there was no snow on the ground, and that it was sunny and unseasonably warm on the day she fell. She testified that it was dark by the entrance, and that she did not see the ice before her fall, or while she was trying to get up, although she was able to spot it later when the area was illuminated. Once discovery was completed, all three defendants filed motions for summary disposition, which the trial court granted, dismissing Brown’s claims. Regarding Taubman’s motion, the judge found that “the black ice upon which plaintiff fell was open and obvious, and would’ve been discovered by a person of ordinary intelligence upon casual inspection . . . .” The judge observed that Brown had been to the mall many times before, that it was not unusually dark on this particular visit, and that there was “nothing unusual about the character, location or surrounding conditions of the black ice that would make it unreasonably dangerous or effectively unavoidable.”

Brown appealed the trial court’s summary disposition ruling in favor of Taubman, arguing that the black ice upon which she had fallen was not open and obvious, that poor lighting in the area contributed to the concealment of the black ice, and that the hazard had special aspects precluding use of the open and obvious doctrine. In an unpublished per curiamopinion, the Court of Appeals reversed the trial court’s ruling. “In light of th[e] conflicting evidence, reasonable minds could differ regarding whether the black ice was open and obvious,” the court held. Taubman appeals.