Ruth Barriger v. the Bon-Ton Department Stores Inc ( 2019 )

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
RUTH BARRIGER, UNPUBLISHED
June 20, 2019
Plaintiff-Appellant,
v No. 339317
Wayne Circuit Court
BON-TON DEPARTMENT STORES, INC., LC No. 16-006535-NO
doing business as CARSON’S,
Defendant-Appellee.
Before: CAMERON, P.J., and MARKEY and BORRELLO, JJ.
PER CURIAM.
In this action alleging ordinary negligence and premises liability, plaintiff, Ruth Barriger,
appeals the trial court’s order granting summary disposition in favor of defendant, Bon-Ton
Department Stores, Inc., doing business as Carson’s. We affirm.
I. BACKGROUND
In April 2014, Barriger went to Carson’s Department Store to shop for a pocket square
for her husband. Within five minutes of entering the store, Barriger turned down an aisle in the
men’s department, saw the men’s shirts and ties, and began walking toward those items. As
Barriger left the tiled aisle way and entered the carpeted area where the ties and shirts were
located, she tripped over an orange area rug and fell. The rug sat on top of installed carpet, and
according to Barriger, her foot caught the edge of the rug. She sustained injuries to her left
ankle, both of her shoulders, and her neck. Barriger then brought this action against Carson’s on
ordinary negligence and premises liability grounds. The trial court granted defendant’s motion
for summary disposition and dismissed the case based on the open and obvious danger doctrine.
II. ORDINARY NEGLIGENCE
Barriger first argues that the trial court erred in dismissing the ordinary negligence claim
because it is independent of her premises liability claim. We disagree.
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A. PRESERVATION AND STANDARD OF REVIEW
“[A]n issue must be raised, addressed, and decided in the trial court to be preserved for
review.” Dell v Citizens Ins Co of America, 312 Mich App 734, 751 n 40; 880 NW2d 280
(2015). Barriger argued before the trial court that the open and obvious danger doctrine did not
apply to her ordinary negligence claim and that, under the “storekeeper’s exception,” she could
maintain her ordinary negligence claim completely independent of her premises liability claim.
The trial court did not explicitly address the issue of plaintiff’s claims sounding exclusively in
premises liability. Instead, the trial court granted defendant’s motion for summary disposition on
the basis of the open and obvious danger doctrine, as well as Barriger’s failure to establish that
defendant had actual or constructive notice of the allegedly hazardous condition. “[T]his Court
may overlook preservation requirements if . . . the issue involves a question of law and the facts
necessary for its resolution have been presented.” Pugno v Blue Harvest Farms LLC, 326 Mich
App 1, 3; ___ NW2d ___ (2018). Therefore, while the trial court did not address the ordinary
negligence claim, we will analyze the issue as preserved because Barriger raised the issue below
and the facts necessary for its resolution have been presented. Id.; Pro-Staffers, Inc v Premier
Mfg Support Servs, Inc, 252 Mich App 318, 324; 651 NW2d 811 (2002).
Generally, “[t]his Court reviews de novo the grant or denial of a summary disposition
motion.” Allison v AEW Capital Mgt, LLP, 481 Mich 419, 424; 751 NW2d 8 (2008). The trial
court granted defendant’s motion for summary disposition under MCR 2.116(C)(10). This Court
reviews a motion for summary disposition brought under MCR 2.116(C)(10) “by considering the
pleadings, admissions, and other evidence submitted by the parties[, viewed] in the light most
favorable to the nonmoving party.” BC Tile & Marble Co, Inc v Multi Bldg Co, Inc, 288 Mich
App 576, 582-583; 794 NW2d 76 (2010). Summary disposition is appropriate under MCR
2.116(C)(10) “if there is no genuine issue regarding any material fact and the moving party is
entitled to judgment as a matter of law.” Id. (quotation marks and citation omitted). “There is a
genuine issue of material fact when reasonable minds could differ on an issue after viewing the
record in the light most favorable to the nonmoving party.” Id. (quotation marks and citation
omitted).
B. ANALYSIS
“Michigan law distinguishes between claims arising from ordinary negligence and claims
premised on a condition of the land.” Buhalis v Trinity Continuing Care Servs, 296 Mich App
685, 692; 822 NW2d 254 (2012). “In the latter case, liability arises solely from the defendant’s
duty as an owner, possessor, or occupier of land.” Id., citing Laier v Kitchen, 266 Mich App
482, 493; 702 NW2d 199 (2005). However, the fact that a plaintiff may have a premises liability
claim against a defendant who is an owner, possessor, or occupier of land “does not preclude a
separate claim grounded on an independent theory of liability based on the defendant’s conduct.”
Laier, 266 Mich App at 493 (“Defendant’s conduct was thus an alleged basis of liability,
independent of premises liability.”). Nevertheless, “[i]f the plaintiff’s injury arose from an
allegedly dangerous condition on the land, the 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, 296 Mich App at 692.
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Barriger’s claim sounds exclusively in premises liability. In support of her ordinary
negligence claim, Barriger argues that defendant was negligent by failing to have properly placed
and secured the rug to the store’s carpet, and by failing to discover the rug’s hazardous condition
before plaintiff’s fall. The gravamen of plaintiff’s allegations, however, center around a
condition on defendant’s premises, not defendant’s conduct. Id. Defendant was not actively
moving, placing, or securing the rug to the carpet when plaintiff fell, nor did any of defendant’s
employees actively contribute to plaintiff’s fall while moving, placing, or securing the rug to the
carpet. Pugno, 326 Mich App at 4 (holding that the plaintiff’s claims “sound squarely in
premises liability” because neither the defendant nor one of its employees “actively” caused the
plaintiff’s injuries). It is not enough for plaintiff to simply allege that defendant created the
hazardous condition by placing the rug in the store the day before her fall. See Buhalis, 296
Mich App at 692 (noting that a plaintiff’s injuries arising from an allegedly dangerous condition
on the land sound exclusively in premises liability, even if “the plaintiff alleges that the premises
possessor created the condition giving rise to the plaintiff’s injury”). Thus, Barriger does not
have a cognizable ordinary negligence claim against defendant.
Plaintiff also argues that our Supreme Court has established a standard for storekeepers
that is separate from the open and obvious danger doctrine and allows her to sustain an ordinary
negligence claim. This argument is without merit. In Clark v Kmart Corp, 465 Mich 416, 417;
634 NW2d 347 (2001), the plaintiff slipped and fell on several loose grapes scattered on the floor
of the defendant’s store. The plaintiff brought a negligence action, and a jury returned a verdict
in favor of the plaintiff. Id. Our Supreme Court, in reversing this Court’s decision that there was
insufficient evidence that the hazardous condition was present long enough to put defendant on
constructive notice, reiterated a storekeeper’s “well-established” duty to protect its customers
from dangerous conditions, stating:
It is the duty of a storekeeper to provide reasonably safe aisles for
customers and he is liable for injury resulting from an unsafe condition either
caused by the active negligence of himself and his employees or, if otherwise
caused, where known to the storekeeper or is of such a character or has existed a
sufficient length of time that he should have had knowledge of it. [Id. at 419,
quoting Serinto v Borman Food Stores, 380 Mich 637, 640-641; 158 NW2d 485
(1968) (emphasis omitted).]
However, in Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich App 710, 715-718;
737 NW2d 179 (2007), this Court, in considering the Clark decision, determined that the open
and obvious danger doctrine applied to claims alleging that a shopkeeper failed to keep store
aisles safe for customers, holding, in relevant part:
The issue in the case at bar is not whether plaintiff was comparatively
negligent in failing to observe and avoid the crushed grapes or grape residue on
defendants’ floor. Instead, the issue is whether defendants owed plaintiff a duty
in the first instance. We readily concede that shoppers in modern grocery stores
are often distracted by displays and merchandise. But mere distractions are not
sufficient to prevent application of the open and obvious danger doctrine. Instead,
to prevent application of the open and obvious danger doctrine to a typical and
obvious condition, the condition must be effectively unavoidable or unreasonably
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dangerous because of special aspects that impose an unreasonably high risk of
severe harm. However, typical open and obvious dangers . . . do not give rise to
these special aspects. [Id. at 716 (quotation marks and citations omitted).]
The Kennedy Court also held that “everyday occurrence[s]” should be observed by the
reasonably prudent person, and that “the relevant inquiry was not merely whether the plaintiff
was distracted, but whether there was anything ‘unusual’ about the plaintiff’s distraction[, or the
hazard itself,] that would preclude application of the open and obvious danger doctrine.” Id. at
717, quoting Lugo v Ameritech Corp, Inc, 464 Mich 512, 522-523; 629 NW2d 384 (2001).
Accordingly, plaintiff’s claim against defendant sounds exclusively in premises liability, and
plaintiff may not seek an independent cause of action against defendant for ordinary negligence.
See Kachudas v Invaders Self Auto Wash, Inc, 486 Mich 913, 914; 781 NW2d 806 (2010)
(“Although an injured person may pursue a claim in ordinary negligence for the overt acts of a
premises owner on his or her premises, the plaintiff in this case is alleging injury by a condition
of the land, and as such, his claim sounds exclusively in premises liability.”) (Citation omitted.)
Finally, plaintiff’s argument—that defendant’s failure to use its own visual team1 in
placing the rug, as well as defendant’s failure to properly secure the rug to the carpet with tape,
violated defendant’s policies and procedures—is without merit. An institution’s internal policies
and procedures may not be used to establish a legal duty in a negligence claim against that
institution. Zdrojewski v Murphy, 254 Mich App 50, 62; 657 NW2d 721 (2002). “Imposition of
a legal duty on a retailer on the basis of its internal policies is . . . contrary to public policy[
because s]uch a rule would encourage retailers to abandon all policies enacted for the protection
of others in an effort to avoid future liability.” Buczkowski v McKay, 441 Mich 96, 99 n 1; 490
NW2d 330 (1992). Therefore, Barriger cannot maintain an ordinary negligence claim against
defendant based on defendant’s violation of its own policy requiring the store’s visual team to
properly place and secure rugs throughout the store. Id. Accordingly, the trial court did not err
in dismissing Barriger’s ordinary negligence claim.
III. PREMISES LIABILITY
Next, Barriger argues that the trial court erred in dismissing her premises liability claim
because the hazardous condition of the rug was not wholly revealed upon casual inspection so as
to constitute an open and obvious danger. Barriger also argues that defendant had constructive
notice of the rug’s hazardous condition and should have remedied the hazard. We disagree.
As stated, this Court reviews a motion for summary disposition brought under MCR
2.116(C)(10) de novo. Allison, 481 Mich at 424. In addition, “whether a premises possessor had
a duty cognizable at law is a question of law to be decided by the courts.” Buhalis, 296 Mich
App at 701.
1
According to the store manager, Carson’s Department Store utilizes a visual team for purposes
of decorating the stores, which includes placing and securing rugs.
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“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.” Benton v Dart
Props, Inc, 270 Mich App 437, 440; 715 NW2d 335 (2006). The parties do not dispute that
plaintiff was a business invitee in defendant’s store. See Stitt v Holland Abundant Life
Fellowship, 462 Mich 591, 597; 614 NW2d 88 (2000) (“[I]nvitee status is commonly afforded to
persons entering upon the property of another for business purposes.”). “In general, 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, 464 Mich at 516.
“A premises owner breaches its duty of care when it knows or should know of a dangerous
condition on the premises of which the invitee is unaware and fails to fix the defect, guard
against the defect, or warn the invitee of the defect.” Pugno, 326 Mich App at 4 (quotation
marks and citation omitted). “[T]he plaintiff must be able to prove that the premises possessor
had actual or constructive notice of the dangerous condition at issue.” Id. (quotation marks and
citation omitted).
However, in the context of premises liability, there is “no obligation to warn someone of
dangers that are so obvious and apparent that a person may reasonably be expected to discover
them and protect himself or herself.” Laier, 266 Mich App at 487. “Whether a danger is open
and obvious depends on whether 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). “[W]hen applying this test, it is important for courts . . . to
focus on the objective nature of the condition of the premises at issue, not the subjective degree
of care used by the plaintiff.” Price v Kroger Co of Mich, 284 Mich App 496, 501; 773 NW2d
739 (2009) (quotation marks and citation omitted). “[T]he open and obvious doctrine should not
be viewed as some type of ‘exception’ to the duty generally owed invitees, but rather as an
integral part of the definition of that duty.” Lugo, 464 Mich at 516.
The rug that Barriger tripped over is primarily orange with a small white pattern
throughout. Barriger described it as “bigger than a runner” rug. Defendant’s employee
explained that it measured approximately 5 feet wide and 8 feet long. The rug was taped to the
top of a light brown colored carpet, which bordered a darker brown colored carpet. The section
of the rug that Barriger alleges was not fully taped down to the carpet was immediately adjacent
to the dark brown color carpet. According to store manager, Scott Sweet, the section of the rug
that appears peeled up in the photograph is approximately 4 inches wide. We conclude that the
trial court did not err when it held that a person of ordinary intelligence would have discovered
the orange rug upon casual inspection. The rug itself was a wholly different color than the rest
of the carpet and easily discernable. We find it of no consequence whether the carpet was taped
down but “peeling” at the corners. The bright rug was in stark contrast with the dark flooring,
and any peeling of the rug was immaterial to our conclusion that the alleged hazard was
discoverable upon casual inspection. The fact that the rug was underneath heavy display tables
further demonstrates that the rug was readily discernable to the average person upon casual
inspection. Hoffner, 492 Mich at 461. And while the rug sat in an aisle way of the men’s
department, it was not “effectively unavoidable” to shoppers. Kennedy, 274 Mich App at 716.
Nor was the rug “unreasonably dangerous because of special aspects that impose[d] an
unreasonably high risk of severe harm.” Id. Accordingly, plaintiff failed to establish a genuine
issue of material fact regarding the open and obvious nature of the rug, and the trial court did not
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err in granting defendant’s motion for summary disposition pursuant to the open and obvious
danger doctrine.
Affirmed.
/s/ Thomas C. Cameron
/s/ Jane E. Markey
/s/ Stephen L. Borrello
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