Susan Pough v. 29th Street Hospitality Inc ( 2020 )

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
SUSAN POUGH, UNPUBLISHED
June 11, 2020
Plaintiff-Appellant,
v No. 346279
Kent County Circuit Court
29TH STREET HOSPITALITY, INC., doing LC No. 17-005214-NO
business as SLEEP INN & SUITES OF GRAND
RAPIDS,
Defendant-Appellee.
Before: K. F. KELLY, P.J., and FORT HOOD and SWARTZLE, JJ.
PER CURIAM.
In this slip-and-fall case, plaintiff appeals as of right the trial court’s order granting
summary disposition to defendant under MCR 2.116(C)(10). We affirm.
I. BACKGROUND
This case arose out of a slip-and-fall accident that occurred while plaintiff was visiting a
friend who was a guest at defendant’s hotel premises. According to plaintiff, she mentioned to
defendant’s maintenance employee that the first floor was “kind of like tacky, sticky, slippery,”
but the maintenance worker ignored her. Plaintiff stated that the floor did not look wet to her, but
she remembered a sticky or wet feeling. Plaintiff further stated that she did not remember seeing
a bucket, mop, tripods, runners, or antislip mats nearby in the lobby area or while walking to the
elevator on the first floor.
Plaintiff took the elevator to the second floor, where her friend was staying, and did not
notice anything being wet or recently cleaned. Plaintiff stated that she did not see any “wet floor”
signs or any red signs on any of the walls or doors. After taking several steps and not having any
issues, she was not concerned about the walking surface on the second floor being wet or sticky.
Plaintiff stated that the carpet in the corridor leading to her friend’s room did not appear to be
damp, she did not notice any soap residue, and there was no indication that service, maintenance,
cleaning, or shampooing on the carpeting was taking place. Plaintiff further stated that, although
the carpet did not appear to be wet, it would be very hard to discern because it was patterned.
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When plaintiff returned to the elevator after visiting her friend, she slipped when
transitioning between the carpet in the hallway and the tile in the elevator lobby. She said that it
was like stepping on oil. Plaintiff’s friend also slipped but was able to catch himself before falling.
Plaintiff also testified that a gentleman who came to help her said that the area was “slippery as
snot,” and two other hotel patrons also commented that the floor was slippery. Plaintiff suffered
a left knee fracture from the fall.
The hotel manager testified that the carpets had recently been cleaned and that, before
plaintiff’s fall, she had placed red warning signs throughout the hotel, including near the elevators,
notifying patrons that the floor may be wet. She stated that she placed the signs on the exterior
doors, the “stairs up both hallways,” the “doors going to the hallways,” and “between the two
elevator shafts,” and that the signs read something to the effect of “Attention. Wet Floors.” A
photograph of plaintiff sitting in the location where she slipped and fell showed a red sign hanging
directly above her head. The hotel manager confirmed that this was one of the warning signs that
she had posted.
Defendant moved for summary disposition, arguing that plaintiff was a licensee and that
the allegedly dangerous condition was open and obvious. The trial court granted defendant’s
motion, stating that it was not necessary to determine whether plaintiff was a licensee or an invitee
because the condition was open and obvious. Additionally, the trial court noted that wet carpet
lacked any special aspect that made it an unavoidable hazard or uniquely dangerous.
This appeal followed.
II. ANALYSIS
A. OPEN AND OBVIOUS
Plaintiff first argues that the trial court erroneously granted summary disposition because
the dampness of the freshly-cleaned carpets was not open and obvious. This argument is without
merit.
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Auto Club Group Ins Co v Burchell, 249 Mich. App. 468, 479; 642 NW2d 406 (2001). When
reviewing a trial court’s grant of summary disposition under MCR 2.116(C)(10), we consider the
evidence to determine whether there is a genuine issue of material fact. Zaher v Miotke, 300 Mich
App 132, 139; 832 NW2d 266 (2013). An issue of fact exists when the record, giving the benefit
of reasonable doubt to the nonmoving party, leaves open an issue upon which reasonable minds
might differ. Id. at 139-140.
Assuming arguendo that plaintiff was an invitee, we nonetheless conclude that the trial
court properly granted summary disposition to defendant because the condition on which she
slipped and fell was open and obvious. “A landowner must exercise reasonable care to protect the
invitee from an unreasonable risk of harm caused by a dangerous condition on the land.” Bullard
v Oakwood Annapolis Hosp, 308 Mich. App. 403, 409; 864 NW2d 591 (2014) (cleaned up). This
duty, however, “does not generally encompass removal of open and obvious dangers.” Joyce v
Rubin, 249 Mich. App. 231, 238; 642 NW2d 360 (2002) (cleaned up). A “landowner does not have
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to protect invitees from open and obvious dangers, because such dangers, by their nature, apprise
an invitee of the potential hazard, which the invitee may then take reasonable measures to avoid.”
Bullard, 308 Mich. App. at 409 (cleaned up). A danger is open and obvious if “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). This is an objective
inquiry in which this Court looks not to whether plaintiff should have known that the condition
was hazardous, but to whether a reasonable person in her position would foresee the danger. Joyce,
249 Mich. App. at 238-39 (cleaned up).
In this case, plaintiff and her friend left the hotel room on the second floor of defendant’s
premises to exit the building. When plaintiff was transitioning between the carpet of the hallway
and the tile in front of the elevator, she slipped; she stated it was like “stepping on oil.” Defendant’s
general manager testified that she placed six red warning signs on each floor of the hotel to warn
patrons of the wet floor. Photographic evidence demonstrated that one of these signs was hanging
directly above plaintiff’s head where she slipped and fell.
Objectively viewing the facts of this case, reasonable minds could not disagree that
defendant exercised reasonable care. See Zaher, 300 Mich. App. at 139. Defendant’s manager
placed warning signs, and plaintiff’s deposition testimony established that she knew the first floor
of defendant’s premises was “slippery.” Based on these facts, it is reasonable to expect that an
average person with ordinary intelligence would have discovered, upon casual inspection, that the
transition between the carpet and the tile floor could have been slippery. See Lanctoe, 492 Mich.
at 461. The trial court correctly ruled that the condition on which plaintiff fell was open and
obvious.
B. EFFECTIVELY UNAVOIDABLE
Plaintiff next argues that, even if the condition was open and obvious, the condition was
effectively unavoidable. This argument is also without merit.
“[T]he general rule is that a premises possessor is not required to protect an invitee from
open and obvious dangers, but, if special aspects of a condition make even an open and obvious
risk unreasonably dangerous, the premises possessor has a duty to undertake reasonable
precautions to protect invitees from that risk.” Lugo v Ameritech Corp, Inc, 464 Mich. 512, 517;
629 NW2d 384 (2001). If special aspects of an open-and-obvious condition make it “effectively
unavoidable,” then “the openness and obviousness of the condition” will not bar liability. Id. at
517-518.
Plaintiff argues that the slippery condition was effectively unavoidable, even if she would
have gone the other direction down the hallway and used the stairs when she exited her friend’s
room. Additionally, plaintiff argued that it was effectively impossible for a person to exit their
room at defendant’s premises without encountering a dangerous, slippery condition. Plaintiff
contends that the facts of this case mirror the hypothetical situation that our Supreme Court
provided in Lugo that constituted an unavoidable danger. We find this argument unpersuasive.
Unlike in Lugo’s hypothetical, the present case does not deal with a situation in which standing
water is covering the floor and there is only one exit. Here, based on plaintiff’s deposition
testimony, the floors were wet, but passable. Further differentiating this case from Lugo, there
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was more than one exit because plaintiff could have used the stairs rather than the elevator.
Although plaintiff argues that the “same slippery conditions” would have existed “at the other end
of the hallway,” there is no record evidence to that effect.
Accordingly, plaintiff’s only asserted basis for concluding that the wet floors were
dangerous was that she did not see any signs or warning cones. Plaintiff has not established that
the wet floors presented an unreasonable risk of harm. See Bertrand v Alan Ford, Inc, 449 Mich.
606, 621; 537 NW2d 185 (1995). Therefore, plaintiff has failed to show the existence of a special
aspect of the open and obvious wet floors. Lugo, 464 Mich. at 519. The trial court properly granted
summary disposition in favor of defendant.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Karen M. Fort Hood
/s/ Brock A. Swartzle
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