Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Finazzo v. Fire Equipment Co.

Court of Appeals of Michigan

April 17, 2018

DAVID FINAZZO, Plaintiff-Appellant,
v.
FIRE EQUIPMENT COMPANY and LOW VOLTAGE BUILDING TECHNOLOGIES, INC., Defendants-Appellees.

          Washtenaw Circuit Court LC No. 16-000919-NO

          Before: Servitto, P.J., and Markey and O'Connell, JJ.

          Markey, J.

         Plaintiff filed a negligence complaint sounding in premises liability regarding injuries he received from a fall while working as a security guard at ITC in Ann Arbor. Defendants were contractors installing a fire protection system in ITC's computer room. During the installation plaintiff stumbled on electrical cabling that was lying on the floor pending its installation in the drop-down ceiling. Defendants moved for summary disposition on the basis that as contractors working on behalf of the premises possessor, they could avail themselves of the open and obvious doctrine. Defendants asserted the cable on the floor that plaintiff stepped on was open and obvious and without any special aspects that rendered it unavoidable or that created an unreasonably high risk of severe harm. The trial court agreed and granted defendants summary disposition on this basis. The trial court also ruled that plaintiff's ordinary negligence claim failed because reasonable minds could not differ in finding that defendants were not negligent and that plaintiff's injuries were the result of plaintiff's own carelessness. Plaintiff appeals by right. We affirm.

         Plaintiff, David Finazzo, was working on July 20, 2012 as a security guard at ITC located at 1901 South Wagner in Ann Arbor, Michigan. ITC had contracted with Fire Equipment Company (FEC) to install a system for suppressing fires, and FEC had subcontracted with Low Voltage Building Technologies, Inc., (LVBT), to perform the electrical work necessary for the project. A 40-foot long cable, approximately one-half- to one-inch thick in diameter, lay on the floor where the work was being performed. The computer room was secured by a locked door. ITC employees used an access card to enter. Security guards admitted contractors like defendants. Before the incident, many people had entered and exited the computer room though its access door. At one point, plaintiff stepped on the cable and slipped, injuring himself when he fell. Plaintiff asserts that defendants failed to protect him from the hazard created by the cable lying on the floor, and as a result, plaintiff suffered damages.

         Defendants argued that as contractor and subcontractor, they were in possession and control of that part of the premises where the work was being performed; therefore, they could avail themselves of the open and obvious doctrine. In support of their position, defendants cited 2 Restatement Torts, 2d, § 384, p 289, certain unpublished decisions of this Court, and more than twenty decisions of other states that have applied § 384. Defendants contended that because the cable on the floor was open and obvious, they are shielded from plaintiff's claim of negligence based on premises liability. According to defendants, the cable on the floor was open and obvious and easily avoidable; plaintiff had been warned about it, and had, in fact, safely stepped over it numerous times.

         Plaintiff argued that defendants did not possess or control the premises where the work was being performed, i.e., where computer equipment was located, because they could only gain access to the secure room through the actions of plaintiff. He further asserted that ITC was protecting its proprietary information and did not release possession and control of the computer room to anyone. Further, plaintiff argued, his ordinary negligence claim-the act of laying the cable on the floor and leaving the room-survived even if the premises liability claim failed.

         The trial court ruled that plaintiff's claim was one of premises liability and that the open an obvious doctrine applied for the reasons defendants argued: The cable on the floor was open and obvious and was an avoidable hazard. The trial court also ruled that reasonable minds could not differ; defendants were not negligent and plaintiff's injuries occurred through plaintiff's own fault. The court granted summary disposition to defendants, and plaintiff now appeals by right.

         I. STANDARD OF REVIEW

         This Court reviews de novo a trial court's decision on a motion for summary disposition to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich. 109, 118; 597 N.W.2d 817 (1999). A motion brought under MCR 2.116(C)(10) tests the factual sufficiency of a complaint and must be supported by affidavits, depositions, admissions, or other documentary evidence. Id. at 120; MCR 2.116(G)(3)(b). A court must view the substantively admissible evidence submitted at the time of the motion in the light most favorable to the party opposing the motion. Maiden, 461 Mich. at 120-121. The motion may be granted when the evidence submitted by the parties and viewed in the light most favorable to the nonmoving party shows that there is no genuine issue regarding any material fact, and the moving party is entitled to judgment as a matter of law. Lymon v Freedland, 314 Mich.App. 746, 755-756; 887 N.W.2d 456 (2017). " 'A genuine issue of material fact exists when the record leaves open an issue on which reasonable minds could differ.' " Id. at 756 (citation omitted).

         "Duty" is a legally recognized obligation to conform ones conduct toward another to what a reasonable man would do under similar circumstances. Howe v Detroit Free Press, Inc, 219 Mich.App. 150, 155; 555 N.W.2d 738 (1996). Generally, whether a duty exists is a question of law for the court and subject to de novo review. Hill v Sears, Roebuck & Co, 492 Mich. 651, 659; 822 N.W.2d 190 (2012); Simko v Blake, 448 Mich. 648, 655; 532 N.W.2d 842 (1995).

          A. THE OPEN AND OBVIOUS DOCTRINE

         We affirm the trial court's application of the open and obvious doctrine to the facts of this case and its grant of summary disposition to defendants on that basis.

         Plaintiff's claim is based on an injury received from a condition of the property-the cable lying on the tile floor pending its installation in the ceiling for the fire suppression system. A claim based on the condition of the premises is a premises liability claim. James v Alberts, 464 Mich. 12, 18-19; 626 N.W.2d 158 (2001). Because plaintiff's injury arose from an allegedly dangerous condition on the land, his 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 v ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.