Oliver Law Firm (by Kevin S. Oliver, Livonia, and Lindsay F. Sikora) for Susan Blackwell. Kopka Pinkus Dolin PLC (by Mark L. Dolin and Steven M. Couch ), Farmington Hills, for Dean and Debra Franchi
Oliver Law Firm (by Kevin S. Oliver, Livonia, and Lindsay F. Sikora) for Susan Blackwell.
Kopka Pinkus Dolin PLC (by Mark L. Dolin and Steven M. Couch ), Farmington Hills, for Dean and Debra Franchi
Before: K. F. Kelly, P.J., and Gleicher and Shapiro, JJ.
Shapiro, J. Plaintiff appeals as of right the order of the trial court granting defendants' motion for summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact) in this premises liability case. On the evening of December 14, 2013, plaintiff attended a dinner party at defendants' home. Defendants' home includes a hallway that leads from the front door to the living room and dining room area. There is a room on each side of the hallway, a bathroom and a mud room. There is an approximately eight-inch drop-off as one steps into the mud room from the hallway. Plaintiff went to put her purse in the mud room after arriving at defendants' home and fell upon entry as a result of the drop-off. Plaintiff was injured and filed suit. Defendants moved for summary disposition, arguing that the drop-off was open and obvious, and therefore they had no duty to warn plaintiff of its existence. The trial court granted defendants' motion. We reverse.
In addition to premises liability, plaintiff's complaint contained allegations sounding in ordinary negligence and nuisance. The trial court granted summary disposition to defendants on those claims as well. The parties do not present any substantial argument on ordinary negligence or nuisance, and we affirm the trial court's grant of summary disposition on those claims.
The open and obvious danger doctrine provides that "if the particular activity or condition creates a risk of harm only because the invitee [or licensee] does not discover the condition or realize its danger" then liability is cut off "if the invitee [or licensee] should have discovered the condition and realized its danger." Bertrand v. Alan Ford, Inc. , 449 Mich. 606, 611, 537 N.W.2d 185 (1995). As a general rule, a drop-off, like a step, does not in and of itself create a risk of harm because if the drop-off is seen a reasonable person can readily navigate it without incident. In this case, however, plaintiff argues that the danger from the drop-off arose because she did not discover the drop-off or realize its danger. Therefore, the question is whether plaintiff should have discovered the drop-off and realized its danger.
Plaintiff argues that she should properly be considered an invitee because the dinner party at defendants' house was a work-related party. However, the evidence does not support this conclusion. Plaintiff did work at the University of Michigan with defendant Debra Franchi, but both testified at their depositions that only two other University of Michigan employees attended the party. Defendant Dean Franchi testified at his deposition that 50–60 people had been invited to the party and that about 20–25 people attended. Additionally, during plaintiff's deposition, she distinguished defendants' party from her employer's holiday party. This evidence shows that plaintiff was properly classified as a licensee at the time of her injury. A premises possessor does not owe a duty to a licensee to make the premises safe, but does owe a duty "to warn the licensee of any hidden dangers the owner knows or has reason to know of, if the licensee does not know or have reason to know of the dangers involved." Stitt v. Holland Abundant Life Fellowship , 462 Mich. 591, 596, 614 N.W.2d 88 (2000).
The risk of harm presented by open and obvious steps is generally not unreasonable, but ‘‘where there is something unusual about the steps, because of their character, location, or surrounding conditions, ... then the duty of the possessor of land to exercise reasonable care remains." Perkoviq v. Delcor Homes–Lake Shore Pointe, Ltd. , 466 Mich. 11, 17–18, 643 N.W.2d 212 (2002) (quotation marks and citation omitted). See also Bertrand 449 Mich. at 624–625, 537 N.W.2d 185 (concluding that though there was no duty to warn because the step was open and obvious, a question of fact existed about whether the step itself, given its location and the congested pedestrian traffic pattern created an unreasonable risk of harm).
Whether plaintiff should have discovered the drop-off turns on whether "an average user with ordinary intelligence acting under the same conditions would have been able to discover the danger and the risk presented by the condition upon casual inspection." Grandberry–Lovette v. Garascia , 303 Mich.App. 566, 577, 844 N.W.2d 178 (2014) (quotation marks and citation omitted), abrogated on other grounds by Lowrey v. LMPS & LMPJ, Inc., 500 Mich. 1, 10 n. 1 (2016). If so, the condition is open and obvious, and no duty to warn arises. A defendant is entitled to summary disposition on the basis of the open and obvious danger doctrine "[i]f the plaintiff alleges that the defendant failed to warn of the danger, yet no reasonable juror would find that the danger was not open and obvious...." Bertrand , 449 Mich. at 617, 537 N.W.2d 185. In order for a plaintiff's claim to survive a defendant's motion for summary disposition on the basis that the danger was open and obvious, the plaintiff must "come forth with sufficient evidence to create a genuine issue of material fact that an ordinary user upon casual inspection could not have discovered the existence of the [condition.]" Novotney v. Burger King Corp. (On Remand) , 198 Mich.App. 470, 475, 499 N.W.2d 379 (1993). Therefore, we must determine whether, in light of the evidence presented, there is a genuine factual dispute regarding whether as average user of ordinary intelligence acting under the conditions as they existed at the time plaintiff encountered the drop-off would have been able to discover it on casual inspection. See id. Plaintiff presented deposition testimony from several other party guests establishing that the drop-off into the mud room was not discoverable upon casual inspection at the time plaintiff encountered it. Guest Endia Simmons testified that she was walking with plaintiff when plaintiff fell. Simmons testified, "[W]e didn't realize that there was a step down because there [were] no lights in that particular room." Simmons further testified that "you could not see that there was a level down into [the] mud room’’ and that "[i]t looked like it just went straight across." Simmons also stated that if she had been walking ahead of plaintiff Simmons herself likely would have fallen. Guest Ebony Whisenant, while acknowledging that she did not specifically see plaintiff fall, corroborated Simmons's description of the mud room entrance. Whisenant testified at her deposition that the floor into the mud room looked level and that the height differential could not be seen. Whisenant described the mud room as "pretty dark." Additionally, while the deposition testimony of the guests was not unanimous as to the lighting condition of the hallway adjacent to the mud room, everyone, including defendant Dean Franchi, agreed that the light inside the mud room was turned off at the time of plaintiff's fall. The photographs submitted by the parties also demonstrated that the drop-off was not easily seen, even with sufficient lighting. The testimony and photographs clearly demonstrated a question of fact about whether an average user acting under the conditions existing when plaintiff approached the mud room would have been able to discover the drop-off upon casual inspection.
The instant case is distinguishable from Novotney , in which we determined that summary disposition was appropriate. In that case, the plaintiff did not assert that the handicap ramp could not be seen by an average person; she alleged only that she did not notice it even though it was daytime. In the case now before us, plaintiff asserts that given the absence of lighting, the drop-off could not be seen by an average person, and she has presented evidence through the testimony of third parties and photographs to support that assertion.
Defendants also argue that the drop-off or height differential, was open and obvious because plaintiff could have turned on a light switch located at the entry to the mud room that would have illuminated the mud room. However, this argument goes to whether plaintiff was comparatively negligent; it does not affect duty. See Lamp v. Reynolds , 249 Mich.App. 591, 598–600, 645 N.W.2d 311 (2002). The open and obvious danger doctrine focuses on the condition of the premises and the hazard as they existed at the time the plaintiff encountered them. See Novotney , 198 Mich.App. at 475, 499 N.W.2d 379. There is no additional requirement that the plaintiff take reasonable steps to improve the visibility of the alleged hazard. Defendants' argument that plaintiff should have discovered and turned on the light switch is not merely a statement that plaintiff should have looked where she was going but is also a statement that plaintiff should have altered the condition of the premises by turning on the lights.
The determination of whether defendants had a duty to warn plaintiff of the drop-off will depends on how the conflicting testimony regarding whether the drop-off was open and obvious is resolved. Resolution of the conflicting testimony is a question for the jury, and therefore the trial court should not have granted summary disposition to defendants. See Bertrand , 449 Mich. at 617, 537 N.W.2d 185.
Reversed and remanded. We do not retain jurisdiction.
Gleicher, J., concurred with Shapiro, J.
I fully concur with the analysis advanced in the majority opinion and write separately only to respond to the dissent.
According to the dissent, "[t]he relevant inquiry is not whether the step was open and obvious, but whether the dark room was open and obvious." (Emphasis in original.) Respectfully, this is an inaccurate statement of the law. The danger on defendant's land was a step shrouded in darkness. The readily apparent darkness of the mud room would have presented no danger had the step not been there.
In large part, Michigan's law of premises liability focuses on whether a particular property owner owes a duty of care to a third party. In cases involving licensees such as plaintiff Susan Blackwell, defendants have a duty to warn of any hidden dangers known to them. Stitt v. Holland Abundant Life Fellowship , 462 Mich. 591, 596, 614 N.W.2d 88 (2000). The "dangers" that are the subjects of premises-liability law are conditions of the land . In the seminal case of Lugo v. Ameritech Corp., Inc. , 464 Mich. 512, 516, 629 N.W.2d 384 (2001), our Supreme Court plainly enunciated that the duty of a premises possessor relates to risks of harm "caused by a dangerous condition on the land." The "dangerous condition on the land" involved here was an eight-inch drop-off that could not be seen on casual inspection by an ordinary user of the premises.
In Abke v. Vandenberg , 239 Mich.App. 359, 363–364, 608 N.W.2d 73 (2000), this Court recognized that darkness may impair a plaintiff's visibility to the extent that an otherwise observable danger no longer qualifies as open and obvious. The plaintiff in Abke fell from a loading dock into a truck bay. Id. at 360, 608 N.W.2d 73. He claimed that the drop-off into the truck area was not discernable due to darkness. We held that the trial court properly denied the defendant's motion for summary disposition, as a factual dispute existed "concerning the visibility of the truck bay." Id. at 362, 608 N.W.2d 73. See also Knight v. Gulf & Western Props., Inc. , 196 Mich.App. 119, 127, 492 N.W.2d 761 (1992) ("The fact that defendant's vacant warehouse was not adequately lit was both obvious and known to plaintiff, but there was no evidence that he was aware or had reason to anticipate that there were interior loading docks that otherwise were not marked or blocked off."). Those cases, like this one, involve elevation differentials hidden by poor lighting. In neither of the previous cases was darkness the danger—after all, darkness is not necessarily dangerous. The danger presented in the previous cases, and here, was an unseen and unseeable step—a condition of the land.
Record evidence supports that plaintiff was directed to place her coat in a completely dark room preceded by a step that was unexpected and invisible on casual inspection. The legal question presented by defendants' motion for summary disposition was whether a reasonable person in plaintiff's position would have foreseen the danger posed by the concealed step. Laier v. Kitchen , 266 Mich.App. 482, 498, 702 N.W.2d 199 (2005). It bears emphasis that this test is objective. Id. It hinges on whether the dangerous condition on the land would have been visible to an ordinary person. We must examine whether a reasonable person in plaintiff's position would have foreseen a danger. Hughes v. PMG Building, Inc. , 227 Mich.App. 1, 11, 574 N.W.2d 691 (1997). As the majority opinion aptly describes, a question of fact exists regarding this question. Viewed in the light most favorable to plaintiff, a reasonable jury could conclude that defendants should have anticipated that a first-time guest in their home would not have been able to see the darkness-enveloped step, and that a warning was required.
The dissent commits a second legal error by placing on plaintiff the duty to discover any dangers hidden within the dark room before entering it. Lugo teaches that "[t]he level of care used by a particular plaintiff is irrelevant to whether the condition created or allowed to continue by a premises possessor is unreasonably dangerous." Lugo , 464 Mich. at 522 n. 5, 629 N.W.2d 384. "In a situation where a plaintiff was injured as a result of a risk that was truly outside the open and obvious doctrine and that posed an unreasonable risk of harm, the fact that the plaintiff was also negligent would not bar a cause of action." Id. at 523, 629 N.W.2d 384. See also MCL 600.2958. Absent any warning, plaintiff had no reason to expect a step, and the record hints of no clues that would have raised a suspicion of a significant elevation differential before continuing ahead. Accordingly, I fully concur with the majority's conclusion that reversal of summary disposition is warranted.
I respectfully dissent. The relevant inquiry is not whether the step was open and obvious, but whether the dark room was open and obvious.
I agree with the majority that plaintiff was a licensee and that defendants had an obligation to warn her of hidden dangers. At the heart of this matter is what constituted the "danger" to plaintiff—the unexceptional eight-inch step or the dark room? At oral argument, plaintiff's attorney conceded that there was absolutely nothing remarkable about the step. Counsel specifically acknowledged that it was a normal eight-inch step that, had the room been properly lit, would have been open and obvious. Plaintiff claims that the step was a danger because it was "unknown." However, it was unknown because plaintiff purposefully entered a dark room to confront unidentified dangers. The danger was not the step, but the dark room itself, which could have contained a variety of other unspecified and commonplace "dangers," such as laundry baskets or toys. The fact that the room was not lit was open and obvious. Plaintiff should have realized the danger posted by entering a dark and unknown room. I would affirm summary disposition in defendants' favor.