Washtenaw Circuit Court LC No. 16-000919-NO
Before: Servitto, P.J., and Markey and O'Connell, JJ.
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.
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.
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.
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.
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.
STANDARD OF REVIEW
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
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).
OPEN AND OBVIOUS DOCTRINE
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.
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 ...