David Finazzo v. Fire Equipment Company , 323 Mich. App. 620 ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
DAVID FINAZZO, FOR PUBLICATION
April 17, 2018
Plaintiff-Appellant, 9:05 a.m.
v No. 338421
Washtenaw Circuit Court
FIRE EQUIPMENT COMPANY and LOW LC No. 16-000919-NO
VOLTAGE BUILDING TECHNOLOGIES, INC.,
Defendants-Appellees.
Before: SERVITTO, P.J., and MARKEY and O’CONNELL, JJ.
MARKEY, J.
Plaintiff filed a negligence complaint sounding in premises liability regarding injuries he
received from a fall while working as a security guard at ITC in Ann Arbor. Defendants were
contractors installing a fire protection system in ITC’s computer room. During the installation
plaintiff stumbled on electrical cabling that was lying on the floor pending its installation in the
drop-down ceiling. Defendants moved for summary disposition on the basis that as contractors
working on behalf of the premises possessor, they could avail themselves of the open and
obvious doctrine. Defendants asserted the cable on the floor that plaintiff stepped on was open
and obvious and without any special aspects that rendered it unavoidable or that created an
unreasonably high risk of severe harm. The trial court agreed and granted defendants summary
disposition on this basis. The trial court also ruled that plaintiff’s ordinary negligence claim
failed because reasonable minds could not differ in finding that defendants were not negligent
and that plaintiff’s injuries were the result of plaintiff’s own carelessness. Plaintiff appeals by
right. We affirm.
Plaintiff, David Finazzo, was working on July 20, 2012 as a security guard at ITC located
at 1901 South Wagner in Ann Arbor, Michigan. ITC had contracted with Fire Equipment
Company (FEC) to install a system for suppressing fires, and FEC had subcontracted with Low
Voltage Building Technologies, Inc., (LVBT), to perform the electrical work necessary for the
project. A 40-foot long cable, approximately one-half- to one-inch thick in diameter, lay on the
floor where the work was being performed. The computer room was secured by a locked door.
ITC employees used an access card to enter. Security guards admitted contractors like
defendants. Before the incident, many people had entered and exited the computer room though
its access door. At one point, plaintiff stepped on the cable and slipped, injuring himself when
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he fell. Plaintiff asserts that defendants failed to protect him from the hazard created by the cable
lying on the floor, and as a result, plaintiff suffered damages.
Defendants argued that as contractor and subcontractor, they were in possession and
control of that part of the premises where the work was being performed; therefore, they could
avail themselves of the open and obvious doctrine. In support of their position, defendants cited
2 Restatement Torts, 2d, § 384, p 289, certain unpublished decisions of this Court, and more than
twenty decisions of other states that have applied § 384. Defendants contended that because the
cable on the floor was open and obvious, they are shielded from plaintiff’s claim of negligence
based on premises liability. According to defendants, the cable on the floor was open and
obvious and easily avoidable; plaintiff had been warned about it, and had, in fact, safely stepped
over it numerous times.
Plaintiff argued that defendants did not possess or control the premises where the work
was being performed, i.e., where computer equipment was located, because they could only gain
access to the secure room through the actions of plaintiff. He further asserted that ITC was
protecting its proprietary information and did not release possession and control of the computer
room to anyone. Further, plaintiff argued, his ordinary negligence claim—the act of laying the
cable on the floor and leaving the room—survived even if the premises liability claim failed.
The trial court ruled that plaintiff’s claim was one of premises liability and that the open
an obvious doctrine applied for the reasons defendants argued: The cable on the floor was open
and obvious and was an avoidable hazard. The trial court also ruled that reasonable minds could
not differ; defendants were not negligent and plaintiff’s injuries occurred through plaintiff’s own
fault. The court granted summary disposition to defendants, and plaintiff now appeals by right.
I. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision on a motion for summary disposition
to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood,
461 Mich. 109, 118; 597 NW2d 817 (1999). A motion brought under MCR 2.116(C)(10) tests
the factual sufficiency of a complaint and must be supported by affidavits, depositions,
admissions, or other documentary evidence. Id. at 120; MCR 2.116(G)(3)(b). A court must
view the substantively admissible evidence submitted at the time of the motion in the light most
favorable to the party opposing the motion. Maiden, 461 Mich. at 120-121. The motion may be
granted when the evidence submitted by the parties and viewed in the light most favorable to the
nonmoving party shows that there is no genuine issue regarding any material fact, and the
moving party is entitled to judgment as a matter of law. Lymon v Freedland, 314 Mich. App. 746,
755-756; 887 NW2d 456 (2017). “ ‘A genuine issue of material fact exists when the record
leaves open an issue on which reasonable minds could differ.’ ” Id. at 756 (citation omitted).
“Duty” is a legally recognized obligation to conform ones conduct toward another to
what a reasonable man would do under similar circumstances. Howe v Detroit Free Press, Inc,
219 Mich. App. 150, 155; 555 NW2d 738 (1996). Generally, whether a duty exists is a question
of law for the court and subject to de novo review. Hill v Sears, Roebuck & Co, 492 Mich. 651,
659; 822 NW2d 190 (2012); Simko v Blake, 448 Mich. 648, 655; 532 NW2d 842 (1995).
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A. THE OPEN AND OBVIOUS DOCTRINE
We affirm the trial court’s application of the open and obvious doctrine to the facts of this
case and its grant of summary disposition to defendants on that basis.
Plaintiff’s claim is based on an injury received from a condition of the property—the
cable lying on the tile floor pending its installation in the ceiling for the fire suppression system.
A claim based on the condition of the premises is a premises liability claim. James v Alberts,
464 Mich. 12, 18-19; 626 NW2d 158 (2001). Because plaintiff’s injury arose from an allegedly
dangerous condition on the land, his action “sounds in premises liability rather than ordinary
negligence; this is true even when the plaintiff alleges that the premises possessor created the
condition giving rise to the plaintiff’s injury.” Buhalis v Trinity Continuing Care Servs, 296
Mich. App. 685, 692; 822 NW2d 254 (2012); see also Kachudas v Invaders Self Auto Wash, Inc,
486 Mich. 913; 781 NW2d 806 (2010).
A condition of the land is open and obvious when “it is reasonable to expect that an
average person with ordinary intelligence would have discovered it upon casual inspection.”
Hoffner v Lanctoe, 492 Mich. 450, 461; 821 NW2d 88 (2012). The cable on the floor in this case
was open and obvious; no factual disputes exists that plaintiff was indeed warned of the cable; he
could see it, and he could have easily avoided it by simply stepping over it. The trial court
correctly ruled that while making changes to the property on behalf of its owner/possessor ITC,
defendants are “subject to the same liability, and enjoys the same freedom from liability, as
though he were the possessor of the land . . . .” 2 Restatement Torts, 2d, § 384, p 289.
Generally, “a premises possessor owes a duty to an invitee to exercise reasonable care to protect
the invitee from an unreasonable risk of harm caused by a dangerous condition on the land.”
Lugo v Ameritech Corp, 464 Mich. 512, 516; 629 NW2d 384 (2001). But this duty does not
extend to having to remove open and obvious dangers absent the presence of special aspects. Id.
at 516-517; Buhalis, 296 Mich. App. at 693. Special aspects exist and impose a duty of care to
protect those lawfully on the premises even if a hazard is open and obvious when the condition is
effectively unavoidable or imposes an unreasonably high risk of severe harm. Hoffner, 492 Mich.
at 461; Lugo, 464 Mich. at 517-518. No special aspects existed in this case.
Generally, however, for a party to be subject to premises liability in favor of persons
coming on the land, the party must possess and control the property at issue but not necessarily
be its owner. See Kubczak v Chemical Bank & Trust Co, 456 Mich. 653, 660; 575 NW2d 745
(1998); Merritt v Nickelson, 407 Mich. 544, 552; 287 NW2d 178 (1980). This rule is based on
the principle that a party “ ‘in possession is in a position of control, and normally best able to
prevent any harm to others.’ ” Merritt, 407 Mich. at 552, quoting Prosser, Torts (4th ed), § 57, p
351 (emphasis added). In Kubczak, 456 Mich. at 662, the Court expounded on this principle by
quoting Nezworski v Mazanec, 301 Mich. 43, 56; 2 NW2d 912 (1942):
“It is a general proposition that liability for an injury due to defective
premises ordinarily depends upon power to prevent the injury and therefore rests
primarily upon him who has control and possession.”
* * *
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“Liability for negligence does not depend upon title; a person is liable for
an injury resulting from his negligence in respect of a place or instrumentality
which is in his control or possession, even though he is not the owner thereof.”
[Emphasis in Kubczak.]
Our Supreme Court has further explained that “[p]ossession and control are certainly
incidents of title ownership, but these possessory rights can be ‘loaned’ to another, thereby
conferring the duty to make the premises safe while simultaneously absolving oneself of
responsibility.” Merritt, 407 Mich. at 552-553, citing Quinlivan v Great Atlantic & Pacific Tea
Co, Inc, 395 Mich. 244, 269; 235 NW2d 732 (1975). The Court in Orel v Uni-Rak Sales Co, 454
Mich. at 564, 567 n 2; 563 NW2d 241 (1997), quoting Quinlivan, 395 Mich. at 269, described the
effect of “loaning” possessory rights as follows:
There is a clear relationship between the “control and possession”
principle . . . and the Restatement “duty to make safe.” The land or property
owner’s bundle of possessory responsibilities may be diminished by the “loaning”
of one or several of these responsibilities. This “loaning” gives a quantum of
“control and possession” to another party. If such quantum of control and
possession confers responsibility for an aspect of ownership which gives rise to
liability then a “duty to make safe” will be found to exist.
While our Supreme Court has never adopted wholesale the Restatement of Torts, it has
consistently relied on the principles in the Restatement to develop Michigan’s law of premises
liability. See Hoffner, 492 Mich. at 478-479; Merritt, 407 Mich. at 552-554; Lugo, 464 Mich. at
516-517; Bertrand v Alan Ford, Inc, 449 Mich. 606, 611; 537 NW2d 185 (1995); Riddle v
McLouth Steel Prods Corp, 440 Mich. 85, 92-94, 485 NW2d 676 (1992); Williams v Cunningham
Drug Stores, Inc, 429 Mich. 495, 499-501; 418 NW2d 381 (1988); and Quinlivan, 395 Mich. at
258-261. As discussed, our Supreme Court has also recognized that a property possessor may
“loan” part of its “possession and control” to another, making the other party responsible for the
care of invitees with respect to that part of possession and control conferred. See Merritt, 407
Mich. at 553; Orel, 454 Mich. at 567-568, n 2. So the Court has explicitly recognized the
principles underlying the rule set forth in 2 Restatement Torts, 2d, § 384, p 289, which provides:
One who on behalf of the possessor of land erects a structure or creates
any other condition on the land is subject to the same liability, and enjoys the
same freedom from liability, as though he were the possessor of the land, for
physical harm caused to others upon and outside of the land by the dangerous
character of the structure or other condition while the work is in his charge.
Comment c of § 384 indicates the stated rule would apply to the instant case where
defendant FEC was under contract to ITC to make changes to its computer room by installing a
fire suppression system. Comment c of § 384 provides: “The rule stated in this Section applies
to anyone who erects a structure upon land or alters its physical condition on behalf of its
possessor, irrespective of whether he does so as a servant of the possessor or as a paid or unpaid
independent contractor.” The stated rule also applies to defendant LVBT, employed as a
subcontractor of FEC to perform the electrical work for the project. Comment d of § 384
provides in pertinent part:
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[A] general contractor employed to do the whole of the work may, by the
authority of his employer, sublet particular parts of the work to subcontractors. In
such a case, the rule stated in this Section applies to subject the particular
contractor or subcontractor to liability for only such harm as is done by the
particular work entrusted to him. [Comment d, 2 Restatement Torts, 2d, § 384.]
The imposition of premises liability on FEC and LVBT with respect to their work on the
premises while installing the fire suppression system under § 384 is also consistent with the
general principle that liability for a dangerous condition should fall on the party having power to
prevent injury to others on the premises. Kubczak, 456 Mich. at 662, Nezworski, 301 Mich. at 56.
Defendants, as contractors performing changes to the property by methods that were under
defendants’ control,1 were also “ ‘best able to prevent any harm to others.’ ” Merritt, 407 Mich.
at 552, quoting Prosser, Torts (4th ed), § 57, p 351. So, it is appropriate to impose premises
liability on defendants with respect to the work they controlled relating to changing the premises:
installing electrical cabling for the fire suppression system. 2 Restatement Torts, 2d, § 384. But
the duty imposed on defendants regarding premises liability would not extend to open and
obvious conditions that are effectively avoidable and do not impose an unreasonably high risk of
severe harm. See Hoffner, 492 Mich. at 461; Lugo, 464 Mich. at 517-518.
In this case, the undisputed facts establish that the cable on the floor was open and
obvious. Hoffner, 492 Mich. at 461. There is no factual dispute that plaintiff was warned of the
cable; he observed the cabling being placed on the floor, and he could have, and, in fact, had
easily avoided it by taking reasonable action for his own safety and simply stepping over it. The
law of premises liability includes the principles that landowners are not insurers and that persons
entering the property must exercise common sense and prudent judgment while on the land—
they must assume personal responsibility to protect themselves from apparent dangers. Id. at
459-460. Consequently, the trial court correctly granted defendants summary disposition on
plaintiff’s complaint sounding in premises liability because the cabling on the floor was open and
obvious and because no special aspects rendered in unavoidable or created an unreasonably risk
of severe harm. Id. at 456; Lugo, 464 Mich. at 514, 517-518; Buhalis, 296 Mich. App. at 692-693.
The sheer volume of decisions from other states that support the rule of law stated in
§ 384 is persuasive. Michigan courts are not bound by foreign authority with respect to
questions of state law, but they may find it persuasive. Mettler Walloon, LLC v Melrose Twp,
281 Mich. App. 184, 221 n 6; 761 NW2d 293 (2008). But because Michigan Supreme Court
authority supports the underlying rationale of the § 384, as previously noted, the sheer volume of
1
“Random House Webster’s College Dictionary (1995), p 297, defines ‘control’ as ‘exercis[ing]
restraint or direction over; dominate, regulate, or command.’ Similarly, Black’s Law Dictionary
defines ‘control’ as ‘the power to . . . manage, direct, or oversee.’ ” Derbabian v S & C
Snowplowing, 249 Mich. App. 695, 703-704; 644 NW2d 779 (2002).
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foreign authority approving of § 384 is persuasive to our decision of applying it in Michigan
also.2
Plaintiff also misplaces reliance on Garrett v Sam H Goodman Building Co, Inc, 474
Mich. 948 (2005) (“summary disposition based on the ‘open and obvious’ doctrine was improper
because neither defendant was the premises possessor”), and Fraim v City Sewer of Flint, 474
Mich. 1101 (2006) (“The open and obvious doctrine is inapplicable to this case because
defendant did not possess or control the premises within which plaintiff was injured.”). But
reading the authority these summary disposition orders cite, we note that both orders stand for
the proposition that the assertion of the open and obvious defense depends on the theory of
liability being advanced. Specifically, the defense applies to premises liability claims.
The Court in Garrett cited to Ghaffari v Turner Constr Co, 473 Mich. 16, 23; 699 NW2d
687 (2005). The latter case involved a claim brought under the common-work-area doctrine.
The Ghaffari Court held that “the open and obvious doctrine and the common work area doctrine
are incompatible.” Ghaffari, 473 Mich. at 23. The open and obvious doctrine related to the duty
of a premises possessor when a plaintiff asserted a premises liability theory. Id. The open and
obvious defense was incompatible with the common-work-area doctrine, which imposes an
affirmative duty on general contractors to protect against hazards that are open and obvious. Id.
at 22-23. Thus, the statement in Garrett, 474 Mich. 948, that “summary disposition based on the
‘open and obvious’ doctrine was improper because neither defendant was the premises
possessor,” simply means the open and obvious defense was unavailable because premises
liability could not be asserted where the defendant was not the possessor of the property. See
2
Defendants cite the following jurisdictions as following the common-law rule of § 384: See
Devazier v Whit Davis Lumber Co, 257 Ark. 371; 516 S.W.2d 610, 613 (1974); Yee Chuck v Bd of
Trustees of Leland Stanford Jr Univ, 179 Cal App 2d 405; 3 Cal Rptr 825, 830 (1960); Mile High
Fence Co v Radovich, 175 Colo 537; 489 P2d 308, 311 n 1 (1971), superseded by statute on
other grounds, see Bath Excavating & Constr Co v Willis, 847 P2d 1141 (Colo, 1993); Duggan v
Esposito, 178 Conn 156; 422 A2d 287, 289 (1979); Cockerham v. R E Vaughn, Inc, 82 So2d
890, 891-892 (Fla, 1955); Chronopoulos v Gil Wyner Co, 334 Mass 593; 137 NE2d 667, 669
(1956); Thill v Modern Erecting Co, 272 Minn 217; 136 NW2d 677, 684 (1965); Barnett ex rel
Barnett v Equality Sav & Loan Ass'n, 662 S.W.2d 924, 927 (Mo App, 1983); French v.
Ambercrombie, 156 Mont. 356; 480 P2d 187, 192-193 (1971); Kragel v Wal-Mart Stores, Inc,
537 NW2d 699, 707 (Iowa, 1995); Von Dollen v Stulgies, 177 Neb 5; 128 NW2d 115, 119
(1964); Harris v Mentes-Williams Co, 23 NJ Super 9; 92 A2d 498, 499 (1952); rev’d on other
grounds 11 NJ 559; 95 A.2d 388 (1953); Samuel E Pentecost Constr Co v O'Donnell, 112 Ind
App 47; 39 NE2d 812, 817 (1942); Savoie v Littleton Constr Co, 95 NH 67; 57 A2d 772, 775
(1948); Tipton v Texaco, Inc, 103 NM 689; 1985 NMSC 108; 712 P2d 1351, 1358 (1985);
Broadway v Blythe Indus, Inc, 313 NC 150; 326 SE2d 266, 270 (1985); Elliott Rogers Constr,
Inc, 257 Or 421; 479 P2d 753, 758 (1971); Leonard v Commonwealth, 565 PA 101; 771 A.2d
1238, 1241 (2001); Cook v Demetrakas, 108 RI 397; 275 A2d 919, 923 (1971); Rendleman v
Clarke, 909 S.W.2d 56, 60 (Tex App, 1995); Williamson v Allied Group, Inc, 117 Wash App 451;
72 P3d 230, 233 (2003).
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Kubczak, 456 Mich. at 660 (“Premises liability is conditioned upon the presence of possession
and control, not necessarily ownership.”); Merritt, 407 Mich. at 552 (“Premises liability is
conditioned upon the presence of both possession and control over the land.”).
The same reasoning applies with respect to the statement in Fraim, 474 Mich. 1101: “The
open and obvious doctrine is inapplicable to this case, because defendant did not possess or
control the premises within which plaintiff was injured.” The Fraim Order cited to Lugo, 464
Mich. at 516, which discussed that the open and obvious doctrine applies in premises liability
cases to limit the duty a premises possessor owes to an invitee.
Finally, if plaintiff’s argument were valid—that defendants may not assert the open and
obvious defense because they did not possess the premises—it follows for the same reason that
defendants are not subject to plaintiff’s premises liability claim. See Kubczak, 456 Mich. at 660;
Merritt, 407 Mich. at 552. But if ITC “loaned” some of its possessory rights to defendants, see
Merritt, 407 Mich. at 553; Orel, 454 Mich. at 567-568, n 2, such that the rule of Restatement 2d,
Torts, § 384, applies, then the trial court correctly granted defendants summary disposition on
plaintiff’s complaint sounding in premises liability because the cabling on the floor was open and
obvious with no special aspects making the condition unavoidable or posing an unreasonably
risk of severe harm. Hoffner, 492 Mich. at 460-462; Buhalis, 296 Mich. App. at 692-693. Under
either analysis, the trial court properly granted defendants summary disposition to the extent that
plaintiff’s claim was one of premises liability.
Plaintiff’s argument that the cable was effectively unavoidable also lacks merit. The
undisputed facts establish that the cable on the floor was open and obvious. Hoffner, 492 Mich.
at 461. There is no factual dispute that plaintiff was warned of the cable; he observed the cabling
being placed on the floor, and he could have easily avoided it by taking reasonable action for his
own safety and simply stepping over it. The law of premises liability includes the related
principles that landowners are not insurers and that persons entering the property must exercise
common sense and prudent judgment while on the land—invitees must too assume personal
responsibility to protect themselves from apparent dangers. Id. at 459-460. In sum, the trial
court correctly granted defendants summary disposition on plaintiff’s complaint sounding in
premises liability because the cabling on the floor was open and obvious and because no special
aspects rendered the situation unavoidable or created an unreasonably risk of severe harm. Id. at
456; Lugo, 464 Mich. at 514, 517-518; Buhalis, 296 Mich. App. at 692-693.
B. ORDINARY NEGLIGENCE CLAIM
Contractors have a common-law duty to perform their work with ordinary care so as not
to unreasonably endanger employees of other subcontractors or anyone else lawfully on the
worksite. Clark v Dalman, 379 Mich. 251, 262; 150 NW2d 755 (1967). Generally, unless the
court can conclude that all reasonable persons would agree the defendant did not create an
unreasonable risk of harm, whether a defendant’s conduct in the particular case breached this
general standard of care is a question of fact for the jury to decide. Moning v Alfono, 400 Mich.
425, 438; 254 NW2d 759 (1977). In this case, the undisputed facts show neither defendant
breached its duty of ordinary care by creating an unreasonable risk of injury; therefore, the trial
court did not err by concluding that “reasonable minds would not differ that Defendants were not
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negligent” and granting summary disposition to defendants as to plaintiff’s ordinary negligence
claim.
To establish a prima facie case of negligence, plaintiff must prove four elements: (1) a
duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4)
damages. Case v Consumers Power Co, 463 Mich. 1, 6; 615 NW2d 17 (2000). In discussing the
duty at issue in this case, the Clark Court noted that a basic rule of the common law
imposes on every person engaged in the prosecution of any undertaking an
obligation to use due care, or to so govern his actions as not to unreasonably
endanger the person or property of others. This rule of the common law arises
out of the concept that every person is under the general duty to so act, or to use
that which he controls, as not to injure another. [Clark, 379 Mich. at 261
(emphasis added).]
The duty arising from a contract under the common law, the Clark Court explained, is
that of ordinary care. Id. “The general duty of a contractor to act so as not to unreasonably
endanger the well-being of employees of either subcontractors of inspectors, or anyone else
lawfully on the site of the project . . . .” Clark, 379 Mich. at 262 (emphasis added). The
reasonableness of defendants’ conduct must be weighed against the principles that persons
lawfully on the site must use good judgment and common sense for their own safety. (See
Hoffner, 492 Mich. at 459, and factors such as the potential degree of harm and whether the risk
at issue is known. See Case, 463 Mich. at 9 (noting that reasonableness of care under the
circumstances represents a sliding scale, depending on the severity of the potential injury); Cf:
Lugo, 464 Mich. at 516-518 (no duty to remove open and obvious dangers unless they are
effectively unavoidable or impose an unreasonably high risk of severe harm)). While
determining whether defendants’ conduct in a particular case created an unreasonable risk of
injury would normally present a question of fact for the jury to decide, here, the undisputed facts
allowed the trial court to find that all reasonable persons would agree that defendant did not
create an unreasonable risk of harm. See Case, 463 Mich. at 7, citing Moning, 400 Mich. at 438.
In this case, ITC hired FEC to install a fire suppression system for its data processing
center (computer room); FEC subcontracted with LVBT to install the necessary electrical
connections for the fire suppression apparatus. Plaintiff David Finazzo was working on July 20,
2012, the date of his fall, as a security guard at ITC’s facility in Ann Arbor. Plaintiff’s job was
to permit entry to the computer room for FEC and LVBT personnel and to monitor what was
happening to keep the equipment and data secure. Plaintiff was to remain in the computer room
while defendants performed their work. Plaintiff watched for two hours as defendants installed
metal clad electrical cabling in the drop-down ceiling of the computer room. At some point
before 10:30 a.m., defendants laid electrical cabling on the floor to facilitate measuring the
proper length to cut for installation. Defendants warned all present, including plaintiff, that
cabling would be on the floor temporarily during the installation work. Kimberly Wooden,
employed by ITC at the time, testified that she was in and out of the computer room several
times while the cabling was on the floor. Plaintiff warned her of its presence each time, and she
was able to easily step over it. Plaintiff also safely stepped over the cabling numerous times
before he fell.
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Plaintiff’s testimony, although vague, did not dispute the testimony defendants presented.
Plaintiff testified that the computer room was adequately illuminated, had a tile floor, and that he
could see a 40-foot length of cabling on the floor and could describe its color; he recalled it was
one-half to one inch in diameter. Plaintiff also stated that he “probably” knew the cable was on
the floor before stepping on it when he went toward the door without looking at the floor.
Specifically, plaintiff testified that before he fell, “I would probably assume that I did see the
cable.” He also acknowledged defendants “probably told” him about the cables. When plaintiff
turned to go to the door, “[he] didn’t see the cables on the floor before [he] fell.”
Based on the undisputed evidence, it is patent that plaintiff was warned of a known and
observable trip hazard lying temporarily on the floor. Plaintiff was aware of the hazard; he and
others had successfully and safely traversed the area by the simply carefully stepping over the
cable numerous times. Unfortunately, it was plaintiff’s own lapse of attention that caused him to
fall when stepping on the cabling. Thus, for many of the same reasons that the cable on the floor
was an open and obvious hazard without special aspects—the cable hazard was avoidable and
did not create an unreasonably high risk of severe harm—we agree that defendants did not
breach their general duty to perform their work “so as not to unreasonably endanger the well-
being of . . . anyone else lawfully on the site of the project . . . .” Clark, 379 Mich. at 262
(emphasis added). The undisputed facts in this case allowed the trial court to rule that all
reasonable persons would agree that defendant did not create an unreasonable risk of harm. See
Case, 463 Mich. at 7, citing Moning, 400 Mich. at 438.
We affirm. As the prevailing parties, defendants may tax their costs pursuant to MCR
7.219.
/s/ Jane E. Markey
/s/ Deborah A. Servitto
/s/ Peter D. O'Connell
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