A defendant appealed an order denying his motion for summary disposition in a Michigan slip and fall case. The Michigan Court of Appeals reversed and remanded for the entry of an order granting the defendant’s motion for summary disposition.
On September 14, 2012, the plaintiff was in the defendant’s backyard, sitting by a fire that had been made in the defendant’s fire pit. The fire pit had been constructed that day and consisted of a corrugated metal fire ring set in a hole surrounded by a circular wall of landscaping blocks that was about nine inches tall. The area around the fire pit was covered with pea gravel. The plaintiff had helped spread and pat down that gravel the previous day. The plaintiff had been dating the defendant off and on since about 2004, and she had been to the defendant’s home hundreds of times.
On the night she fell, the plaintiff and the defendant were sitting in chairs by the fire pit drinking wine. The plaintiff was wearing rubber flip flop sandals and had her feet resting on top of the block wall surrounding the fire ring. At some point, the plaintiff felt too hot and decided to move her chair further away from the fire as the defendant was walking toward his house to get something. The plaintiff stood up and then turned around to grab the arms of the chair to move it, with her feet between the chair and the fire pit. As she leaned over to take hold of the chair, her feet started sliding backwards on the gravel, down a slight slope, until she lost her balance and fell backwards into the fire pit, causing her to sustain significant burns.
Subsequently, the plaintiff sued the defendant, alleging theories of negligence and premises liability. In particular, the plaintiff alleged that the defendant knew or should have known that the pea gravel immediately adjacent to the fire pit was unstable but failed to warn or protect her from the dangerous condition. Furthermore, the defendant’s conduct in lighting a fire in an unsafe fire pit was negligent.
The defendant filed a motion for summary disposition under MCR 2.116(C)(10), arguing that the plaintiff was a licensee when she fell into the fire pit. The duty owed to a licensee is to warn of any hidden dangers involving an unreasonable risk of harm of which the landowner knows or has reason to know, and then only if the licensee does not know or have reason to know of the hidden danger and the risk involved. The landowner owes no duty of inspection or affirmative care to make the land safe for the licensee’s visit.
In this case, the defendant argued, he did not breach any duty owed to the plaintiff because she knew of the gravel around the fire pit and actually helped place it there, so she knew or had reason to know of any danger associated with maneuvering on gravel. Furthermore, the defendant sat in the same location as the plaintiff, in a chair on the gravel near the fire pit, and, thus, clearly had no idea of any hidden danger involving an unreasonable risk of harm, or he would not have done so. Moreover, any purported defect or hazard created by the gravel was open and obvious upon a casual inspection. Accordingly, the defendant argued, the plaintiff’s case must be dismissed.
The plaintiff filed a response to the defendant’s motion and argued that the pea gravel that was on the ground around the fire pit was unstable yet uniform in appearance, which created an unreasonably dangerous, not open and obvious, condition. By the very nature of pea gravel, it blends together so that an area that is sloped is not readily observable. Consequently, when the plaintiff attempted to move her chair, she slid backwards on the pea gravel down the slight slope, lost her balance, and fell into the fire pit. Accordingly, the defendant was not entitled to summary disposition of the plaintiff’s claims.
The defendant replied to the plaintiff’s response to his motion, arguing that the plaintiff, as a licensee who helped spread the pea gravel around the fire pit and had walked on the gravel, knew or had reason to know about the nature of pea gravel when it is stepped on. Thus, the defendant did not breach any duty owed to her by failing to warn her about the allegedly dangerous pea gravel around the fire pit. Furthermore, the defendant had no reason to know that such a condition posed an unreasonable risk of harm to the plaintiff or that she would not have discovered or realized the purported danger. Thus, the plaintiff’s case should be dismissed.
Following oral arguments, the trial court denied the defendant’s motion for summary disposition. The court held that a genuine issue of material fact existed relative to (1) whether any hidden danger existed on the defendant’s premises about which he should have warned the plaintiff, and (2) whether the “defectively placed gravel surrounding the subject fire pit” constituted an open and obvious condition without special aspects that would make the condition or risk unreasonably dangerous.
On appeal, the defendant argued that his motion for summary disposition should have been granted because there was no genuine issue of material fact that any danger associated with the pea gravel around the fire pit was open and obvious, was actually known to the plaintiff, and did not present any special aspects that would create an unreasonable risk of harm. The appeals court agreed.
The appeals court reasoned that it was undisputed that the plaintiff was a social guest at the defendant’s home, so she was a licensee rather than a business invitee or an uninvited trespasser. A landowner owes a licensee a duty only to warn the licensee of any hidden dangers of which the owner knows or has reason to know, if the licensee does not know or have reason to know of the dangers involved. The landowner owes no duty of inspection or affirmative care to make the premises safe for the licensee’s visit. A landowner has no duty to warn or protect a licensee from open and obvious conditions because the open and obvious danger principle establishes awareness and thus ability to avoid the danger.
The allegedly dangerous condition was the pea gravel surrounding the fire pit, which was uniform in appearance yet unstable and slightly sloped toward the fire pit; thus, when the plaintiff attempted to move her chair, her feet slid backward on the pea gravel toward the fire pit, causing her to lose her balance and fall. According to the plaintiff, the “hidden danger” of which the defendant should have warned her was the slippery or unstable nature of the pea gravel surrounding the fire pit. But the plaintiff knew or had reason to know of the slippery or unstable nature of the pea gravel because she admittedly had spread it, patted it down, and walked on it before her accident. The plaintiff would have seen that pea gravel is made of small round stones that make a fluid, non-flat surface, and, when it is stepped on, it moves under the feet. She would have also seen that the pea gravel was not compacted or completely level as a concrete base or patio might be made—regardless of the gravel’s allegedly uniform-appearing surface. And to the extent that the plaintiff claimed there was any other “hidden danger” associated with the pea gravel, the plaintiff failed to establish that the defendant knew or had reason to know of it.
The appeals court concluded that the trial court erroneously held that a genuine issue of material fact existed relative to whether any hidden danger existed on the defendant’s premises about which he should have warned the plaintiff. Any danger associated with the allegedly dangerous pea gravel surrounding the fire pit was either known, or should have been known, by the plaintiff, and the plaintiff failed to establish that the defendant knew or should have known of any other “hidden danger” that warranted a warning.
For these reasons, the trial court erroneously concluded that a genuine issue of material fact existed relative to whether special aspects of the pea gravel surrounding the fire pit made even the open and obvious risk unreasonable so that the defendant had a duty to protect the plaintiff from that unreasonable risk of harm.
The premises liability attorneys at the Neumann Law Group represent 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.
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