Circuit Court LC No. 14-141562-NI.
Before: K. F. Kelly, P.J., and Gleicher and Shapiro, JJ.
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 are
two rooms 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.
open and obvious 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 since if seen a reasonable person can readily
transverse it without incident. In this case, however, plaintiff
argues that the danger from the drop-off arose "because
[plaintiff] d[id] not discover the condition or realize its
danger." Id. Thus, the question is whether
"[plaintiff] should have discovered the
condition and realized its danger." Id.
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, 578-577; 844 N.W.2d 178
(2014) (quotations and citation omitted). 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 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. In
order for a plaintiff's claim to survive a
defendant's motion for summary disposition on open and
obvious grounds, 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, 198 Mich.App. 470, 475;
499 N.W.2d 379 (1993).
we must determine whether, based on the evidence presented,
there is a genuine factual dispute regarding whether an
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.
presented evidence in the form of 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 she 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" and
stated that "[i]t just looked like it was straight
across." Simmons also stated that had she been walking
ahead of plaintiff she 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 testifying at her deposition that the
hallway into the mud room looked level and that the height
differential could not be seen. Whisenant described the mud
room as "very 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, was in
agreement that the light inside the mud room was turned off
at the time of plaintiff's fall. The photographs
submitted by the parties also demonstrate that the drop-off
is not easily seen, even with sufficient lighting. The
testimony and photographs clearly demonstrate a question of
fact of whether an average user acting under the conditions
existing when plaintiff approached the mudroom would have
been able to discover the drop-off upon casual
case is distinguishable from Novotney, where we
determined that summary disposition was appropriate. In that
case, plaintiff did not assert that the handicap ramp could
not be seen by an average person; she alleged only that she
didn't notice it even though it was daytime. In the case
now before us, plaintiff asserts that given the absence of
lighting, the dropoff could not be seen by an average person
and presents evidence through the testimony of third parties
and photographs to support that assertion.
also argue that the drop off or height differential was open
and obvious because plaintiff could have turned on a light
switch that was located at the entry to the mudroom that
would have illuminated the mud room. However, this is not a
duty question but is instead a question of comparative
negligence. See Lamp v Reynolds, 249 Mich.App. 591,
599-600; 645 N.W.2d 311 (2002). The open and obvious 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. 475. 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 a statement
that she should have altered the premises' condition by
turning on the lights.
the determination of whether defendants' owed plaintiff a
duty to warn of the drop-off will depend on how the
conflicting testimony regarding whether the drop-off was open
and obvious is resolved, the conflicting testimony must be
submitted to the jury, and the trial court's grant of
summary disposition to defendant was erroneous. See
Bertrand, at 449 Mich. at 617.
and remanded. We do not retain jurisdiction.
Gleicher, J. (concurring).
concur with the analysis advanced in the majority opinion,
and write ...