Rodica Marcu v. Meijer Inc ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
RODICA MARCU, UNPUBLISHED
September 22, 2022
Plaintiff-Appellee,
v No. 359061
Wayne Circuit Court
MEIJER, INC., LC No. 20-002877-NO
Defendant-Appellant.
Before: GLEICHER, C.J., and MARKEY and PATEL, JJ.
PER CURIAM.
Commercial premises are required to protect their visitors from known dangers that are not
objectively obvious on casual inspection. The Meijer store involved here situated its restrooms
down a narrow hallway, and designed the restroom doors to swing outward into the hallway.
Meijer further constricted the customer’s walking path to the restrooms by placing a large trashcan
just outside the men’s’ room door. Meijer knew that its customers could be struck by opening
doors; a sign warned men to open their restroom door “slowly.”
Rodica Marcu was injured when a door opened and struck her as she traversed the hallway.
The evidence presents triable questions of fact regarding Meijer’s negligence and whether the
danger was open and obvious. Accordingly, the circuit court properly denied Meijer’s motion for
summary disposition and we affirm.
I. BACKGROUND
On July 6, 2018, Rodica Marcu visited a Meijer store in the city of Detroit. After shopping,
Marcu decided to use the restroom. The restrooms are located down a hallway at the front of the
store. That hallway is 7 feet, 2¼ inches wide and 16 feet, 2¼ inches long. The women’s restroom
is at the end of the hallway and the men’s room is in the center. The doors to these restrooms open
outward and are three-feet wide. There is a handle on the outside of the doors that people use to
pull them open. On the day in question, a trashcan was positioned immediately across from the
men’s room door. Its base was 1 foot, 5⅜ wide. The can sat slightly away from the wall.
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Marcu easily traversed the hallway toward the women’s restroom. She followed directly
behind a man who entered the men’s room in front of her. Marcu negotiated between the man, the
doorway, and the trashcan to reach her destination. By the time of her deposition 16 months later,
Marcu did not remember walking behind the man. On her way back down the hallway, Marcu
stayed close to the right-hand side of the hallway, the same side as the men’s restroom. Just as she
reached the door, a man opened it from inside. The door struck Marcu. Meijer staff had taped a
white paper sign on the inside of the men’s room door, stating “OPEN DOOR SLOWLY.” The
following still frame shows the condition of the hallway and operation of the men’s room door:
Marcu asserted that when she was hit by the door, she was “looking ahead on [her] way”
out of the hallway and “the rest room [] door hit [her] out of nowhere.” She described the hallway
as “very tight.” A Meijer manager, Joshua Grisham, agreed that the placement of the trashcan
across from the outward-opening door narrowed the hallway and that two people could not walk
side by side if the bathroom door was opened all the way.
Marcu suffered injuries during this collision. She filed suit, raising a single count of
negligence. Marcu alleged that the hallway and men’s restroom door were negligently designed
and maintained. Specifically, Marcu asserted that Meijer “fail[ed] to design, install and maintain”
the restroom door “with enough distance to ensure the patrons’ safety from being struck by the”
door, “plac[ed] obstacles in the corridor ensuring patrons passing the men’s door must walk in
close proximity to it,” and “fail[ed] to utilize an inward-swinging door given the narrow walking
corridor.” Marcu also noted the absence of warning signs in the hallway to alert customers to the
outward-opening door.
During discovery, Meijer deposed Marcu and produced surveillance footage from the
hallway in question. Marcu presented a report authored by an architect (Albert J. Kerelis, Jr.)
regarding the design of the hallway and the doorway. Kerelis opined that when the door was fully
open and the trashcan was placed as on the day of this incident, the walking path was narrowed to
less than 18 inches, making it foreseeable that a passerby would be struck by the door. Marcu also
deposed Grisham and another Meijer employee.
Meijer sought summary disposition under MCR 2.116(C)(10), contending that this
negligence action sounded in premises liability. Meijer argued that “ordinary doors are open and
obvious” and that Marcu had failed to create a genuine issue of material fact that this particular
door amounted to a danger that was not open and obvious. Meijer further urged that Kerelis’s
report was inadmissible under MRE 702 because an expert’s opinion was not needed to assist the
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factfinder in determining whether the condition was open and obvious; the factfinder need only
look to the surveillance footage.
Marcu responded that Kerilis’s report would assist the factfinder and therefore was
admissible. Specifically, the report provided measurements that put the video in context and that
without those measurements, the video was “deceptively misleading.” Kerelis did not reach the
ultimate conclusion whether the door was an open and obvious danger, but gave the factfinder the
means to make that determination. The danger in this case was not open and obvious, Marcu
insisted, because no reasonable person would “anticipate such a strange design”—a hallway
narrowed to 18 inches by the placement of a trashcan across from an outward-opening door.
Marcu contended that even if the door was an open and obvious danger, it was
unreasonably so or was effectively unavoidable. Specifically, Marcu asserted that as she alleged
a defect in the design of the hallway and bathroom doors, a product liability design defect analysis
should be employed. She looked to Bertrand v Alan Ford Inc, 449 Mich 606, 622-624; 537 NW2d
185 (1995), in which the strange configuration of an outwardly swinging door, narrow raised
walkway, and vending machine along the only path to the cashier’s window created an
unreasonably dangerous and unavoidable situation despite being open and obvious. Marcu
contended that the door itself was not a special aspect, but in combination with the width of the
hallway and the placement of the trashcan, an unreasonably dangerous condition was created that
was effectively unavoidable.
Meijer retorted that the surveillance footage standing alone demonstrated the open and
obvious nature of this condition. The video also showed that Marcu and others safely navigated
the hallway with no issue. Marcu did not establish that Kerelis had some specialized knowledge
beyond a reasonable factfinder using common knowledge. Ultimately, whether the condition was
open and obvious was a question of law that an expert could provide no insight into.
Meijer attached to its reply still shots of other customers navigating the hallway outside the
men’s restroom. Those photographs actually demonstrate that the hallway was very narrow and
that these individuals could easily have been injured if someone inside the restroom suddenly
opened the door.1
The circuit court considered the motion without a hearing and denied Meijer’s motion. The
court rejected Meijer’s challenge to the admissibility of Kerelis’s architectural report, noting “there
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is no plausible argument that he is unqualified or lacks a foundation to proffer an expert opinion
regarding the hallway’s design.” The court further reasoned that the surveillance footage was
insufficient standing alone to inform the trier of fact as the footage did “not have measurable
distances.” The court continued, “While a jury will determine whether something was ‘open and
obvious’, when that determination necessarily turns on architectural and design specifications, an
expert is required to frame the determination.” And proving the dangerous nature of a condition
is not rendered irrelevant simply because the defendant claims the danger was open and obvious.
In rejecting Meijer’s claim that the open and obvious doctrine demanded summary
disposition in this case, the court did use parts of Marcu’s summary disposition responsive brief
(a point with which Meijer takes issue), stating:
Here, [Meijer’s] placement of the door, specifically directly across from a
trashcan, opening outward in a narrow hallway is not “open and obvious.” In fact,
it is the exact opposite of “open and obvious” as no person, let alone a reasonable
one, would anticipate such a strange design. When traversing through an already
narrow hallway, there is no reason to believe doors would pose an obstacle. . . .
While doors can open outward, and it might be reasonable under certain
circumstances to assume they do open outwards—what would be sufficient for
[Meijer’s] argument here—the context in this case completely rebuts any such
inference. Given the fact that the already narrow hallway was made narrower by
the placement of the trashcan, no reasonable person would think that Meijer would
undertake such acts while having its bathroom door open into the same hallway.
As such, the door opening into the hallway was not “open and obvious.[”]
This Court granted Meijer’s interlocutory application for leave to appeal the denial of its
motion for summary disposition. Marcu v Meijer, Inc, unpublished order of the Court of Appeals,
entered January 31, 2022 (Docket No. 359061).
II. ANALYSIS
We review de novo a lower court’s resolution of a summary disposition motion. Zaher v
Miotke, 300 Mich App 132, 139; 832 NW2d 266 (2013). “A motion under MCR 2.116(C)(10)
tests the factual support of a plaintiff’s claim” and should be granted when after reviewing “the
pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light
most favorable to the nonmoving party,” there remains “no genuine issue regarding any material
fact” that could be sent to trial “and the moving party is entitled to judgment as a matter of law.”
Id. (quotation marks and citations omitted). “A genuine issue of material fact exists when the
record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon
which reasonable minds might differ.” Id. at 139-140 (quotation marks and citation omitted).
“The court is not permitted to assess credibility, or to determine facts” in analyzing whether a
genuine issue of material fact exists. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475(1994).
In a premises liability case, “a plaintiff must prove the traditional elements of negligence:
(1) that defendant owed the plaintiff a duty, (2) that defendant breached that duty, (3) that the
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breach was a proximate cause of the plaintiff’s injury, and (4) the plaintiff suffered damages.” Hill
v Sears, Roebuck & Co, 492 Mich 651, 660; 822 NW2d 190 (2012). Meijer owed Marcu a duty
as its business invitee “to exercise reasonable care to protect [her] from an unreasonable risk of
harm caused by a dangerous condition on the land.” Benton v Dart Props, Inc, 270 Mich App 437,
440; 715 NW2d 335 (2006).
First and foremost, the parties disagree whether the outward-opening door in this hallway
amounted to a dangerous condition. “If a condition is not dangerous, it is senseless to consider”
the issue further. Prebenda v Tartaglia, 245 Mich App 168, 170; 627 NW2d 610 (2001). Marcu
created a genuine issue of material fact on this issue, and Meijer’s evidence actually bolsters that
this condition was dangerous. Meijer relies on Prebenda, 245 Mich App at 170, for the proposition
that “a commonplace and ordinary door” is not a dangerous condition. In Prebenda, the plaintiff
was struck by a door when someone on the other side opened it. The plaintiff contended that the
door was dangerous “because it had no window allowing people on each side to see one another.”
Id. This Court rejected this argument, noting that most doors do not have windows and that
“people generally approach doors cautiously knowing that someone might be coming from the
other direction.” Id.However, this case is more akin to Bertrand, 449 Mich 606. In Bertrand, the plaintiff was
not injured simply by a door, but because of the architectural design of the entrance into a car
dealership’s service bay area and placement of an obstacle. As described by the Supreme Court:
As she was exiting the door, other people were entering. The plaintiff walked
through the door and was facing backward as she held the door open for the others
to enter. The door opened out onto a sidewalk that was the width of the door. The
sidewalk was an elevated walkway that ran along the side of the service area. On
the left were vending machines. The cashier’s window was on the right. The door
was hinged on the right and opened out. Pictures of the area reveal that a person
leaving the lounge area would have to walk through the narrow passage between
the open door and the vending machines, step down off the sidewalk, walk around
the door, and then step back up onto the sidewalk to reach the cashier’s window.
[Id. at 622.]
The Court accepted that this condition was dangerous and proceeded to consider whether it was
open and obvious. Just as in Bertrand, Marcu does not allege that she was injured simply because
of a door. As in Bertrand, the placement of an obstacle, here a large trashcan directly across from
an outward-opening door, in an already narrow passage can be deemed a dangerous condition.
That the arrangement of this area was dangerous is supported by the architectural report
presented by Marcu. Meijer challenged the admissibility of this report. In relation to a motion for
summary disposition, the parties must present “substantively admissible” evidence for the court’s
review, but that evidence need not “be in an admissible form.” Barnard Mfg Co v Gates
Performance Engineering, Inc, 285 Mich App 362, 373; 775 NW2d 618 (2009). The party
presenting the evidence is not required to lay the foundation for its admissibility “as long as there
was a plausible basis for the admission of the” evidence. Id. The report in this case gives the
surveillance footage context by describing the actual dimensions of the hallway. And contrary to
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Meijer’s insistence, whether this condition was open and obvious is not the only issue in this case.
Accordingly, there was a plausible basis for its admission.
The architectural report details that when the bathroom door is open all the way and the
trashcan is positioned as it was on the day in question, there remains less than 18 inches of walking
space. The still frames from the surveillance footage presented by Meijer itself provide a vivid
image of this danger. When persons with shopping carts or cleaning caddies are present in the
hallway, there is no room to negotiate. This would be true as well for individuals in wheelchairs
or personal mobility scooters, or pushing strollers. When the hallway in blocked by traffic in this
manner, the persons involved would have no room to escape the door when it opened next to them.
Marcu also created a genuine issue of material fact that Meijer breached its duty “ ‘to
exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a
dangerous condition of the land’ that the landowner knows or should know the invitees will not
discover, realize, or protect themselves against.” Bertrand, 449 Mich at 609, quoting Williams v
Cunningham Drug Stores, Inc, 429 Mich 495, 499; 418 NW2d 381 (1988). Meijer clearly
understood that persons could be injured when someone inside the men’s room opened the door
out into the hallway; it placed a sign on the inside of the door instructing users to open the door
slowly. Meijer was on notice. However, Meijer placed no warning in the hallway to put passers-
by on notice to protect themselves. Further, despite knowing that individuals walking down the
hallway could be injured by the outward-opening door, a Meijer agent placed a large trashcan
immediately across the hall from the door, narrowing the walking space to less than 18 inches.
This created a factual question that Meijer breached its duty of care and was negligent.
No one challenges the causation element of this negligence action and we need not consider
it here. But a landowner is not liable for an invitee’s injury if the danger is so open and obvious
“that an invitee may be expected to discover [it] himself.” Williams, 429 Mich at 500. The various
elements at play in this case may have been noticeable on their own, but there remains a factual
question whether the danger posed by the interconnected elements was objectively observable
upon casual inspection. Bertrand, 449 Mich at 623-624, illustrates this point. The plaintiff in
Bertrand could observe the elements before her—the outward-swinging door, the narrow elevated
walkway, the placement of the cashier’s window, and the vending machines—but it was
questionable whether the danger posed by these interconnected elements was obvious upon casual
inspection.
Moreover, even if the danger was open and obvious, Bertrand, 449 Mich at 624, instructs
that whether the danger was unreasonable also remains a question of fact. Marcu created a genuine
issue of material fact that the condition of this hallway was unreasonably dangerous. As in
Bertrand, the landowner was aware of the condition its design created; Meijer anticipated harm
and placed a warning sign inside the men’s room door. The plaintiff in Bertrand noted that if the
vending machine had not been placed so close to the left-hand side of the door, she could have
stepped there. Her only other option was to take the step down. As her back was facing the step,
she fell and broke her femur. Id. at 622-623. Plaintiff in this case similarly had limited options to
avoid her injury. Marcu could not predict when the men’s restroom door might swing out into the
hallway. Although Marcu could have stayed to the left side of the hallway, there was a trashcan
in her way and a narrowed walking path. Accordingly, even if she stayed to the left, Marcu did
not necessarily have safe passage.
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Ultimately, viewing the evidence presented in the light most favorable to Marcu, there
remain factual issues that must be resolved at trial—whether Meijer was negligent, whether the
danger was open and obvious upon casual inspection, and if so whether the danger was
unreasonable. These questions precluded summary disposition.
We affirm.
/s/ Elizabeth L. Gleicher
/s/ Sima G. Patel
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