Arlene D Davidson v. Steve's Family Dining II Inc ( 2023 )

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
ARLENE D. DAVIDSON, UNPUBLISHED
March 2, 2023
Plaintiff-Appellee,
v No. 361730
Wayne Circuit Court
STEVE’S FAMILY DINING II, INC., LC No. 21-005288-NO
Defendant-Appellant.
Before: K. F. KELLY, P.J., and MURRAY and SWARTZLE, JJ.
PER CURIAM.
Defendant appeals by leave granted the trial court’s order denying defendant’s motion for
summary disposition under MCR 2.116(C)(10). On appeal, defendant argues that the trial court
erred by holding that there is a genuine issue of fact as to whether the wet floor had special aspects
that made it an effectively unavoidable hazard. We agree and therefore reverse the trial court’s
order and remand for entry of an order granting defendant’s motion for summary disposition.
This case arises from plaintiff’s slip and fall injury in defendant’s restaurant. The accident
occurred while plaintiff was walking to the restroom to wash her hands. Plaintiff was familiar
with the restaurant layout and headed down the “L-shaped” hallway to the restroom. Plaintiff then
fell as she turned the corner in the hallway. Her right foot slipped quickly on water, and she fell
on her side, breaking her wrist.
Plaintiff testified that the entire hallway floor was full of freshly mopped water, describing
the water as slippery as if it contained soap. Plaintiff admitted that she saw the water before falling
and walked carefully down the hallway but did not think to turn around. She also testified that
both her husband and the EMS personnel struggled to walk through the hallway to assist her after
she fell.
Defendant moved for summary disposition under MCR 2.116(C)(10), arguing that the wet
floor was an open and obvious condition with no special aspects. The trial court agreed that the
wet floor was an open and obvious condition because plaintiff saw the water before she fell.
However, the trial court held that there was a genuine issue of fact pertaining to special aspects.
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I. STANDARD OF REVIEW
This Court reviews de novo a trial court’s ruling on a motion for summary disposition
brought under MCR 2.116(C)(10). Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151(2003). Under MCR 2.116(C)(10), a party is entitled to summary disposition when the evidence
does not present a genuine issue of material fact. Jewett v Mesick Consol Sch Dist, 332 Mich App
462, 470; 957 NW2d 377 (2020). “A genuine issue of material fact exists when the record, viewed
in the light most favorable to the nonmoving party, leaves open an issue upon which reasonable
minds might differ.” MacDonald v Ottawa Co, 335 Mich App 618, 622; 967 NW2d 919 (2021)
(quotations marks and citation omitted). “The reviewing court should evaluate a motion for
summary disposition under MCR 2.116(C)(10) by considering the substantively admissible
evidence actually proffered in opposition to the motion.” Jewett, 332 Mich App at 470 (quotation
marks and citation omitted). This includes “affidavits, pleadings, depositions, admissions, and
other evidence submitted by the parties.” Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681
NW2d 342 (2004). This Court does not make factual findings or weigh credibility. Burkhardt v
Bailey, 260 Mich App 636, 647; 680 NW2d 453 (2004) (citation omitted).
II. OPEN AND OBVIOUS1
The open and obvious danger doctrine pertains to the duty element of a premise-liability
claim. Hoffner v Lanctoe, 492 Mich 450, 476; 821 NW2d 88 (2012). 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,
Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). However, this general duty does not exist as to
the removal of open and obvious dangers:
[W]here the dangers are known to the invitee or are so obvious that the invitee
might reasonably be expected to discover them, an invitor owes no duty to protect
or warn the invitee unless he should anticipate the harm despite knowledge of it on
behalf of the invitee. [Id. (quotation marks and citation omitted).]
A limited exception to the open and obvious danger doctrine arises when “special aspects of a
condition make even an open and obvious risk unreasonable.” Hoffner, 492 Mich at 461.
We conclude that there is no genuine issue of fact as to whether the wet floor was an open
and obvious danger. An open and obvious danger exists when “the dangers are known to the
invitee or are so obvious that the invitee might reasonably be expected to discover them.” Riddle
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Defendant argues in its reply brief that whether there is a genuine issue of fact that the wet floor
was open and obvious is not properly before this Court because plaintiff has not cross-appealed
the trial court’s finding that the wet floor was open and obvious. Additionally, defendant argues
that this Court granted leave to appeal limited to the issues raised in the application.
MCR 7.205(E)(4); Yoost v Caspari, 295 Mich App 209, 229; 813 NW2d 783 (2012). This may
all be true, but defendant argued in its application and its principal brief that there was no genuine
issue of material fact whether the water was an open and obvious condition, so plaintiff quite
naturally responded to that issue being raised in the application and briefing.
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v McLouth Steel Products Corp, 440 Mich 85, 96; 485 NW2d 676 (1992) (emphasis added).
“Whether a danger is open and obvious depends on whether it is reasonable to expect an average
user of ordinary intelligence to discover the danger upon casual inspection.” Laier v Kitchen, 266
Mich App 482, 498; 702 NW2d 199 (2005). This test is objective and focuses on the reasonably
prudent person. Id. This Court is “required to determine whether a reasonable person in the
plaintiff’s position would foresee the danger, and not whether a particular plaintiff should have
foreseen the danger.” Id.Plaintiff admitted and confirmed when asked to clarify, that she was aware that the floor
was wet before she walked across it. She further stated that she attempted to walk carefully across
the floor because she appreciated that there was a risk of slipping. A business invitor owes no duty
when the dangers are known to the invitee. Riddle, 440 Mich at 96. Because plaintiff had prior
knowledge that the floor was wet before traversing it, noticed that it was wet because it appeared
freshly mopped, and walked carefully across the wet floor in appreciation of the risk of slipping,
the trial court was correct in its conclusion, even when viewed in a light most favorable to plaintiff
as the nonmoving party, that the floor’s wet condition was an open and obvious condition to which
no duty to warn attached.
III. SPECIAL ASPECTS
Under the limited special aspects exception to the open and obvious danger doctrine,
“liability may be imposed only for an unusual open and obvious condition that is unreasonably
dangerous because it present[s] an extremely high risk of severe harm to an invitee in
circumstances where there is no sensible reason for such an inordinate risk of severe harm to be
presented.” Hoffner, 492 Mich at 462 (quotation marks and citation omitted). Relying on Lugo,
the Supreme Court has explained:
This Court has discussed two instances in which the special aspects of an
open and obvious hazard could give rise to liability: when the danger is
unreasonably dangerous or when the danger is effectively unavoidable. In either
circumstance, such dangers are those that ‘give rise to a uniquely high likelihood
of harm or severity of harm if the risk is not avoided’ and thus must be differentiated
from those risks posed by ordinary conditions or typical open and obvious hazards.
Further, we have recognized that neither a common condition nor an avoidable
condition is uniquely dangerous. [Id. at 463 (citations omitted).]
The standard for effective unavoidability “is that a person, for all practical purposes, must
be required or compelled to confront a dangerous hazard. As a parallel conclusion, situations in
which a person has a choice whether to confront a hazard cannot truly be unavoidable, or even
effectively so.” Hoffner, 492 Mich at 469. The Court has hypothesized a scenario in which an
effectively unavoidable dangerous condition could exist:
[A] commercial building with only one exit for the general public where the floor
is covered with standing water. While the condition is open and obvious, a
customer wishing to exit the store must leave the store through the water. [Lugo,
464 Mich at 518.]
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In Hoffner, the Supreme Court rejected a plaintiff’s argument that the condition was effectively
unavoidable when the plaintiff slipped on the icy entrance to a fitness center in which she had a
contractual right to enter as a member. Hoffner, 492 Mich at 469. The hazard was not effectively
unavoidable because the plaintiff’s desire to use the gym did not force her to traverse the hazard.
Id. at 473-474.
In a more recent decision, the Court considered a case under the effectively unavoidable
standard in the context of an employee falling when she traversed a sheet of ice blocking the
entrance of her job. Estate of Livings v Sage’s Investment Group, LLC, 507 Mich 328, 334; 968
NW2d 397 (2021). The Court explained that “[i]f an employee could have avoided the condition
through the use of due care under the circumstances, then the condition was not effectively
unavoidable.” Id. at 347. Under this standard, the Court found a genuine issue of fact existed as
to whether the ice was effectively unavoidable because evidence suggested that the ice covered
the entire parking lot and encompassed both the employee and customer parking lot. Id. at 348.
No reasonable alternative existed because the plaintiff could not leave and return when the
condition was resolved. Id. This would have been tantamount to skipping work. Id.
Here, there was no genuine issue of material fact that no special aspects existed, making
the wet floor “effectively unavoidable.” Plaintiff testified only that she went to the restroom to
wash her hands. Even when viewing plaintiff’s testimony in the light most favorable to her as the
nonmoving party, there is no evidence that she lacked any choice other than to traverse the wet
floor. See Hoffner, 492 Mich at 469. When plaintiff observed the wet floor, she could have asked
the restaurant staff to dry the floor, provide her with alternative means to wash her hands, or assist
her in walking to the restroom.
Further, a wet floor in a restaurant is not an unreasonably dangerous condition. An open
and obvious condition may be “unreasonably dangerous because of special aspects that impose an
unreasonably high risk of severe harm.” Lugo, 464 Mich at 518. The hazard “must be more than
theoretically or retrospectively dangerous, because even the most unassuming situation can often
be dangerous under the wrong set of circumstances.” Hoffner, 492 Mich at 472. The hypothetical
provided in Lugo is “an unguarded thirty foot deep pit in the middle of a parking lot.” Lugo, 464
Mich at 518. “[T]ypical open and obvious dangers (such as ordinary potholes in a parking lot) do
not give rise to these special aspects.” Id. at 520. The average person “would typically be able to
see the pothole and avoid it. Further, there is little risk of severe harm.” Id. “Unlike falling an
extended distance, it cannot be expected that a typical person tripping on a pothole and falling to
the ground would suffer severe injury.” Id. Given the evidence on review, viewed in a light most
favorable to plaintiff, the conditions of the floor did not give rise to the high likelihood of severe
harm posed by falling into a 30-foot deep pit. See id. at 518, 520. In fact, plaintiff testified that
despite her knowledge of the wet floor, she was not worried about falling.
The trial court erred by holding that there was a genuine issue of fact as to whether the wet
floor met the special aspects exception to the open and obvious danger doctrine. Therefore, we
reverse the trial court and remand for entry of an order granting defendant’s motion for summary
disposition. We do not retain jurisdiction.
/s/ Kirsten Frank Kelly
/s/ Christopher M. Murray
/s/ Brock A. Swartzle
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