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STATE OF MICHIGAN COURT OF APPEALS

WILLIAM OSANTOWSKI, Plaintiff-Appellee, V DOW CHEMICAL COMPANY, Defendant-Appellant.

UNPUBLISHED December 20, 2011

No. 300707 Midland Circuit Court LC No. 09-005690-CZ

Before: WILDER, P.J., and TALBOT and SERVITTO, JJ. PER CURIAM. Defendant appeals by leave granted1 the trial court's order denying defendant's motion for summary disposition in this premises liability case. We reverse and remand. I. BASIC FACTS In 2007, plaintiff was an employee of Signal Perfection, Ltd. which in turn was a contractor to defendant, Dow Chemical Company ("Dow"). At that time, plaintiff worked the night shift from 11:00 p.m. until 7:00 a.m. on Dow's premises, specifically at Dow's "2020" building. Plaintiff was an audio/visual technician. On December 12, 2007, as part of plaintiff's usual practice when arriving for work, he parked his vehicle in the first parking spot in the first row because the 2020 parking lot was empty at night. After parking, plaintiff walked diagonally across the parking lot directly to the rear entrance of the building. He did not see or encounter any ice or slippery conditions on his way to the building. Almost two hours after arriving at work, plaintiff left the building but could not recall if it was to smoke a cigarette or if it had something to do with his lunch pail, which he kept in his car. In any event, while plaintiff was walking back to the building, he slipped and fell to the ground.

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This Court initially denied defendant's application for leave to appeal. Osantowski v Dow Chem Co, unpublished order of the Court of Appeals, entered February 10, 2011 (Docket No. 300707). However, later, the Supreme Court remanded this case to this Court for consideration as on leave granted. Osantowski v Dow Chem Co, 489 Mich 982; 799 NW2d 177 (2008).

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Plaintiff was still in the parking lot, anywhere from 10 to 15 feet away from his vehicle. Only after falling did plaintiff feel "wet and ice" and realize that he had slipped on ice. After returning to the building, plaintiff reported the incident through the proper Dow channels. Plaintiff reported that the incident happened at 12:45 a.m. on December 13, 2007. At approximately 3:00 a.m., David Dietlein, from Dow Security, arrived at the 2020 building to take a report from plaintiff. During this time, both plaintiff and Dietlein went to the parking lot to view the site of the fall. Dietlein noted that as they approached plaintiff's car, he saw an area of patchy ice nearby. The area was approximately eight to ten feet wide and contained thin, patchy ice. Dietlein also testified that the parking lot, including the area in question, was illuminated by a single, 100-foot tall light tower (containing six bulbs), which was located approximately 80 to 100 feet southwest of plaintiff's car. Additionally, there also was a 15-foot tall light pole (containing one bulb) approximately 100 feet to the north of plaintiff's car. Notably, Dietlein did not see any other ice in the parking lot, except for this one area. After returning to his office, Dietlein prepared an incident report and contacted Dow dispatch to request salting to remove the ice in the 2020 parking lot. As a result, the salting/plowing contractor, Johnson Contracting, Inc., came out and salted the entire parking lot at around 3:30 or 4:00 a.m. Whenever Johnson Contracting applied salt, its practice was to salt the entire lot, even if only a portion of the lot was icy. The weather and associated snow/ice removal leading up to plaintiff's fall was presented to the trial court. On December 11, 2007, 1.3 inches of snow fell, and the high temperature was 33 degrees with the low temperature being 23 degrees. At 3:00 p.m. on that day, Johnson Contracting applied salt to the Dow parking lots, which were full of cars at that time.2 On December 12, 2007, there was no snow fall, and the high temperature was 32 degrees with a low of 12 degrees. During the early morning hours of December 12, Johnson Contracting returned to the now-empty lots and plowed and salted them before the day-shift workers arrived at 7:00 a.m. At 12:45 a.m. on December 13, the time of the slip and fall, the temperature apparently was 17 degrees.3 As noted earlier, Johnson Contracting came out around 3:30 a.m. or 4:00 a.m. and salted the entire 2020 parking lot. Plaintiff filed this premises liability suit on May 5, 2009. Dow later moved for summary disposition, arguing that (1) it did not owe plaintiff any duty because any danger was open and obvious, (2) it did not owe plaintiff any duty because it was not aware of any hazardous condition, and (3) to the extent that any duty existed, Dow's snow and ice removal measures were reasonable as a matter of law. Plaintiff, on the other hand, argued that the ice was black ice, which by definition was not open and obvious. Furthermore, plaintiff argued that there were

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The driver explained that when salting during the work day, he would narrow the throw of the salt and only drive down the aisles in order to avoid throwing salt directly on vehicles. He admitted that in this instance, salt was not applied along the sides of the parked cars. The evidence submitted shows that the Saginaw airport reported a temperature of 17 degrees at 11:53 p.m. and 17 degrees at 12:53 a.m.

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no other indicia present that the black ice could exist at the area in question. Finally, plaintiff claimed that the snow/ice removal procedures were not reasonable since "[n]o efforts of any kind of nature were utilized . . . to remove ice from next to the sides of the parked vehicles." The trial court denied the motion because it determined that (1) the hazard was not open and obvious, (2) the question of notice was a question for the jury, and (3) it was for a jury to determine whether Dow's actions were reasonable. The trial court denied the motion and stated the following at the hearing: The Court is of the opinion that the circumstances presented in this situation as addressed in the hearing do not rise to the level that they would have as a matter of law . . . would have been visible upon casual inspection, nor as a matter of law does the Court believe that there is sufficient basis to find that the matter of indicia of a potential hazard should not be addressed by the trier of fact in this case. There is case law that addresses what the court believes are weather conditions that were more contemporaneous with the actual fall that occurred in those cases. In this situation, the weather condition that is alleged to have potentially created the black ice

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