A plaintiff appealed a trial court’s order granting summary disposition to a defendant fruit market after the plaintiff tripped over a landscaping tool in the defendant’s store. The Michigan Court of Appeals affirmed the lower court’s judgment.
The appeals court began by outlining Michigan’s premises liability law. In a premises liability action, a plaintiff must prove the elements of negligence: (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff’s injury, and (4) the plaintiff suffered damages. Typically, a landowner owes a duty to use reasonable care to protect invitees from unreasonable risks of harm posed by dangerous conditions on the owner’s land. A landowner may be liable for breaching this duty if it is aware of a dangerous condition but fails to fix the defect, guard against the defect, or warn the invitee of the defect. However, it is well-settled that a landowner’s duty to protect does not extend to dangers that are open and obvious.
In the current case, the trial court’s reason for granting summary disposition pursuant to MCR 2.116(C)(10) was that the hazard the plaintiff alleged led to her fall was open and obvious. In determining whether a hazard is open and obvious, the relevant inquiry is whether it is reasonable to expect that an average person with ordinary intelligence would have discovered the hazard upon a casual inspection.
Although the plaintiff denied seeing the landscaping tool that caused her fall before she actually fell, the trial court concluded that the record evidence showed that any hazard would have been readily discernible to an average person of ordinary intelligence upon a casual inspection. The trial court noted that the plaintiff, during her deposition, admitted seeing other tools as she made her way through the tools and equipment that were being used to construct a patio on the defendants’ premises, and she saw the tool that caused her fall subsequent to her fall. The trial court also determined that genuine issues of material fact did not exist regarding whether the tool was hidden by the grass that the plaintiff traversed, since the grass depicted in photographs, taken approximately one-half hour after the plaintiff fell, was obviously cropped short enough that an average person with ordinary intelligence would have discerned the presence of landscaping tools and gauged their actions accordingly.
The plaintiff asserted that her answer to interrogatories from the defendants created genuine issues of material fact for trial, since she stated that the landscaping tool that caused her fall was hidden by the grass. During her deposition testimony, however, she acknowledged seeing several landscaping tools lying on the ground as she traversed the grass where she ultimately fell, but she denied seeing the actual tool that caused her to fall before she fell.
Based on this evidence, the appeals court concluded, it was reasonable for the trial court to find that an average person of ordinary intelligence would have seen the collection of tools and the resulting hazard on a casual inspection. The trial court’s ultimate determination that genuine issues of material fact did not exist with regard to the application of the open and obvious doctrine was therefore sound.
The plaintiff argued there were other conflicts in the record evidence that precluded summary disposition. While the appeals court acknowledged these inconsistencies, it concluded they were not germane to the pivotal question decided by the trial court: whether the hazard to the plaintiff was open and obvious.
Next, the appeals court rejected the plaintiff’s argument that even if the condition was open and obvious, the trial court erred in granting summary disposition to the defendants because there were special aspects associated with the hazard that warranted the imposition of liability on the defendants despite its open and obvious nature.
Special aspects are present when the open and obvious hazard is effectively unavoidable or when the condition presents an unreasonably high risk of severe harm. The standard for “effective unavoidability,” the appeals court explained, is that a person, for all practical purposes, must be required or compelled to confront a dangerous hazard. While the plaintiff contended that she had no choice but to traverse through the construction equipment and tools, there was no indication from the record that the plaintiff was required to enter the construction area. There was also no indication that she could not have crossed the street to avoid the construction site. While an alternate route may have been less convenient for the plaintiff, there was nothing in the record to suggest that it was unavailable.
The appeals court next rejected the plaintiff’s argument on appeal that the trial court did not take into consideration evidence that two employees directed her to walk through the area that led to her fall, giving her the false impression that it was a safe path of travel. She also argued that the defendants were responsible for worksite safety because one of them planned and supervised the project. Similarly, she contended that testimony from the owner of the construction company set a standard of care for safety, requiring the use of orange safety cones or barrels to block off the construction area, but the defendants failed to comply with this standard. These arguments all related to whether the defendants breached a duty of care to the plaintiff. However, the appeals court concluded, a premises owner’s duty of protection owed to an invitee does not extend to dangers that are open and obvious.
The plaintiff next argued that the trial court erred in denying her motion for reconsideration. The appeals court’s review of the plaintiff’s motion for reconsideration in the trial court confirmed the trial court’s conclusion that it was essentially a reiteration of the arguments raised in the plaintiff’s brief in response to the motion for summary disposition, and the plaintiff did not demonstrate that a “palpable error” occurred. MCR 2.119(F)(3). Therefore, the trial court did not abuse its discretion in denying the motion.
Finally, the appeals court rejected the plaintiff’s argument that the trial court erred by granting the defendants’ motion for summary disposition without giving her an opportunity to amend her complaint.
A trial court’s determination on a motion to amend is reviewed for an abuse of discretion. The law provides that if the grounds for summary disposition asserted are based on subrule (C)(8), (9), or (10), the court shall give the parties an opportunity to amend their pleadings as provided by MCR 2.118, unless the evidence then before the court shows that an amendment would not be justified. The appeals court’s review of the record did not discern any indication that the plaintiff raised this issue before the trial court, aside from a cursory reference in her brief in response to the defendants’ motion for summary disposition to the applicable court rule. It also noted that the plaintiff did not present the trial court with an amended complaint to consider, or provide any detailed explanation of how she could amend her complaint to allege a viable claim. On the record, it did not find any error.
For these reasons, the appeals court affirmed.
The premises liability attorneys at the Neumann Law Group represent injured people throughout Michigan from offices in Traverse City and Grand Rapids. Call us at (231) 463-0122 or at (616) 717-5666 for a free consultation.
More Blog Posts:
Michigan Appeals Court Holds Trial Court Improperly Granted Summary Judgment to Defendants in Car Accident Case, Neumann Law Group, February 14, 2017.
Michigan Appeals Court grants Summary Disposition to Defendant Dog Owner Following Injury to Fed Ex Employee, Neumann Law Group, February 7, 2017.
Michigan Appellate Court Rules Question of Whether Dangerous Condition Was Open and Obvious Should Go To Jury, Neumann Law Group, February 2, 2017.