A trial court improperly struck an injured woman’s expert witness in meteorology in a slip and fall case, a Michigan Court of Appeals panel has held, reversing a grant of summary disposition for the defendant and remanding for further proceedings.
The trial court granted the defendant’s motion to strike the woman’s expert witness and also granted the defendant’s motion for summary disposition.
But the appellate panel said the trial court abused its discretion when it excluded the meteorologist’s testimony on grounds that it was irrelevant, and that the trial court’s decision to rule on the issue of notice without the benefit of the meteorologist’s testimony was “premature.”
“We reverse the trial court order granting defendant’s motion to strike plaintiff’s expert witness, vacate the trial court order granting defendant’s motion for summary disposition, and remand for further proceedings consistent with this opinion,” the judges wrote.
The unpublished decision is Basehore v. Short ( MiLW 08-107828 , 9 pages). Judges Colleen A. O’Brien, Stephen L. Borrello and Noah P. Hood sat on the panel.
Jeanne V. Barron of Johnston, Sztykiel, Hunt, Fraser, Gold and Barron in Troy, who represented the defendant, noted that this is one of the first post- Kandil-Elsayed cases. She said that, while the law changed, it did not abrogate the notice requirement.
“It is clear from reading the opinion that, although the court reversed the order granting summary disposition, the court still indicated that ‘defendant may have a good argument that he is entitled to summary disposition,’” Barron explained. “The court was more concerned that the court had granted our motion to strike Paul Gross as plaintiff’s meteorological expert as that expert could, according to the court, arguably give an opinion of whether or not defendant had constructive notice of the alleged dangerous condition on the property.”
She and her client are preparing for further litigation.
“Importantly, the court did not abrogate the notice requirement for premises liability cases and certainly left open the door for defendant to file another MSD after the deposition of Paul Gross is taken,” she told Michigan Lawyers Weekly.
St. Clair Shores attorney Thomas G. Krall of Krall Law Offices, who represented that plaintiff, could not be reached for comment.
Slippery wheelchair ramp
Ruth Basehore was a home healthcare provider for Mary Jane Hay at her residence in St. Clair. Hay passed away and her only child, Paul Short, was appointed personal representative of her estate. Short, who lived out of state, asked Basehore to keep working her shift at the home to care for Hay’s dog.
Basehore used the wheelchair ramp when she arrived at the home around 7 p.m. on Nov. 20, 2021. The sun was coming up when she left the following morning. It was still dark out; the ramp was lit by lights from the porch and garage.
Basehore slipped and fell walking down the ramp to her car. She didn’t see snow on the ground, but believed she slipped on black ice. She filed a premises liability complaint against Short.
Short, however, claimed the condition was open and obvious and that he lacked any notice. He filed a motion for summary disposition, arguing that any ice that caused Basehore to fall was open and obvious and that the wintry conditions should have alerted her to the possibility of ice on the ramp.
Discovery was to stay open for 180 days; Basehore was to serve her expert witness list to Short “no later than 60 days prior to the close of discovery.” The St. Clair County Court entered a stipulated order extending discovery until May 5, 2023.
Basehore filed an amended expert witness list, naming Paul Gross as an expert witness in meteorology, on April 11. Short objected, saying the disclosure wasn’t timely and filed a motion to strike. He filed a motion for summary disposition the same day.
The trial court granted Short’s motion to strike Gross, concluding that his testimony was irrelevant. Another hearing was held a few weeks later on Short’s motion for summary disposition. Basehore maintained that there was a question of fact whether Short had constructive notice of the ice on the ramp. Short conceded that the condition existed for six hours before Basehore’s fall, but said this wasn’t enough to establish a question of fact whether he should have known about the ice on the ramp, particularly since it developed overnight.
The trial court granted Short’s motion for summary disposition, saying the ice was present for a very short period and that a factfinder would have to engage in “speculation and conjecture” to conclude that Short had notice of the ice. Summary disposition was also proper because the ice was open and obvious in light of Baseshore’s testimony that because she observed wintry conditions before her fall.
Expert excluded
The panel said the trial court erred granting Short’s motion to strike Gross.
“It is difficult to imagine a scenario in the abstract in which a qualified expert’s testimony about the weather leading up to a plaintiff’s slipping on ice outdoors would be irrelevant to whether the defendant had constructive notice of the ice,” the panel explained. “For years, courts in this state have held that plaintiffs who slip on ice cannot recover for their injuries if the weather conditions leading up to and at the time of the plaintiff’s fall would have alerted the plaintiff to the possibility of icy conditions.”
While the open-and-obvious doctrine has changed, the basic logic from caselaw applies here a person of ordinary intelligence understands that ice forms in cold, wintry conditions. If the condition is present for a sufficient amount of time, then a land possessor would or should know about the risk of ice forming. If not, then it might support that the land possessor lacked constructive notice of ice on his land.
Thus, evidence about the weather leading up to a person slipping on ice would be relevant.
“Plaintiff here sought to admit Gross’s testimony so that he could detail the weather leading up to and at the time of plaintiff’s fall,” the judges wrote. “This evidence was plainly relevant for the reasons explained. The trial court thus erred as a matter of law and necessarily abused its discretion when it excluded Gross’s testimony on grounds that it was irrelevant.”
'Plainly relevant'
The trial court also erred granting Short’s motion for summary disposition.
“As the record currently stands, defendant may have a good argument that he is entitled to summary disposition,” the panel explained. “Without any testimony about the weather conditions leading up to plaintiff’s fall, plaintiff generally relies on the amount of time that the ice must have been present on the ramp to argue that defendant should have known about the ice. Problematically, it is entirely unknown when the ice on the ramp formed or could have formed.”
Gross’s testimony about the weather was improperly excluded; it would have spoken directly to whether Short should have known about the danger of ice forming on his property.
“Gross’s testimony is plainly relevant to the issue of notice, and the trial court’s decision to rule on the issue of notice without the benefit of Gross’s testimony was premature,” the judges concluded.
The matter returns to St. Clair County for further proceedings.
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