862 N.W.2d 232 (Mich.App. 2014), 315219, Bredow v. Land & Co., PRD Construction, Inc.

CourtCourt of Appeal of Michigan (US)
Writing for the CourtJoel P. Hoekstra, J.
JudgeBefore: RONAYNE KRAUSE, P.J., and HOEKSTRA and WHITBECK, JJ. WHITBECK, J. (concurring). RONAYNE KRAUSE, P.J. (dissenting). William C. Whitbeck, J. ( concurring ). Amy Ronayne Krause, P.J. ( dissenting ).
Citation862 N.W.2d 232,307 Mich.App. 579
PartiesGORDON JOSEPH BREDOW and SUZANNE BREDOW, Plaintiffs-Appellants, v. LAND & CO, PRD CONSTRUCTION, INC, d/b/a LAND SERVICE AND SUPPLY, WYOMING INDUSTRIAL CENTER LLC, AND WYOMING INDUSTRIAL CENTER II LLC, Defendants-Appellees
Docket Number315219
Date30 October 2014

Page 232

862 N.W.2d 232 (Mich.App. 2014)

307 Mich.App. 579

GORDON JOSEPH BREDOW and SUZANNE BREDOW, Plaintiffs-Appellants,

v.

LAND & CO, PRD CONSTRUCTION, INC, d/b/a LAND SERVICE AND SUPPLY, WYOMING INDUSTRIAL CENTER LLC, AND WYOMING INDUSTRIAL CENTER II LLC, Defendants-Appellees

No. 315219

Court of Appeals of Michigan

October 30, 2014

Kent Circuit Court. LC No. 11-011291-NO.

For BREDOW GORDON JOSEPH, PLAINTIFF-APPELLANT: JOHN R ALLABEN, GRAND RAPIDS, MI; STEVEN A HICKS, LANSING, MI.

For LAND & CO, DEFENDANT-APPELLEE: PHILIP E KALAMAROS, ST JOSEPH, MI.

Before: RONAYNE KRAUSE, P.J., and HOEKSTRA and WHITBECK, JJ. WHITBECK, J. (concurring). RONAYNE KRAUSE, P.J. (dissenting).

OPINION

Page 233

[307 Mich.App. 581] Joel P. Hoekstra, J.

In this premises liability action, plaintiffs appeal by right the trial court's grant of summary disposition to defendants. Because we conclude that plaintiff Gordon J. Bredow1 was injured while engaging in

Page 234

an activity on defendants' premises that was outside the scope of his invitation and that he must therefore be [307 Mich.App. 582] classified as a licensee for whom defendants owed no duty to maintain the premises or to warn him of a known hazard, we affirm.

In December 2008, Ferguson Enterprises, a wholesale distributor of plumbing supplies and other items, employed plaintiff as a project manager in its pricing center. In this role, plaintiff explained that he worked " with data," creating spreadsheets and other tools to aid those individuals analyzing commodity and matrix pricing for the Midwest. The pricing center where plaintiff worked was located in a rented warehouse which was part of a facility owned and managed by defendants.

On December 26, 2008, plaintiff and a coworker, Greg Layton, acting on their own accord, undertook the task of clearing snow and ice from an area near the building's entrance. Plaintiff, in particular, began clearing large icicles that were hanging from the building's roof. As he did so, large amounts of snow and ice fell from the roof onto plaintiff, causing him serious injury.

Plaintiff lacked specific recollection of the events surrounding his injury and indicated that Layton would be best able to describe the incident. According to Layton's description, on the day in question, the " very thick" ice forming on the building's roof was of such a length that it almost reached the ground. Early in the day, the ground near the entrance of the building appeared clear, but, by afternoon, ice had begun to fall from the roof. Unsolicited, Layton and plaintiff attempted to remove this ice debris from the ground, including ice chunks somewhat smaller around than a bowling ball.

Plaintiff then began to attempt the removal of icicles hanging down from the building's roof. Layton explained that, just before plaintiff's injury, plaintiff was [307 Mich.App. 583] using a " snow shovel to pry one of the icicles that were hanging from the building off of the building," at which time " snow and ice from on top of the roof came down with" the icicle. It was the snow and ice from on top of the roof that struck plaintiff, knocking him down and causing his injuries.

Layton noted that, as a matter of " common sense," the risk of falling ice posed a danger as evidenced by the ice on the ground. Recognizing this danger, Layton also indicated that, while plaintiff pushed on the icicles, Layton " was kind of edging back because it seemed dangerous so [he] didn't want to be near it." In Layton's opinion, the section of the roof near where plaintiff chose to strike the icicles could have come down at any time. Likewise, though plaintiff had few memories of the specific events surrounding his injury, he had previously seen snow and ice on the building's roof, and he had heard snow and ice falling off the building's roof before the incident in question. He also described the process of " push[ing]" or " clearing" the icicles, stating, " [Y]ou kind of push [the icicles] while you're looking up, so you don't I mean, you can image getting something that's dropping down and tipping over and teetering. It can be dangerous."

Sometime after sustaining his injury, plaintiff filed suit against defendants. Defendants later moved for summary disposition, which the trial court granted after determining that the snow and ice on the roof constituted an open and obvious danger

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without any special aspects. Plaintiff now appeals as of right.

A trial court's decision to grant a motion for summary disposition is reviewed de novo. Latham v Barton Malow Co, 480 Mich. 105, 111; 746 N.W.2d 868 (2008). In this case, the trial court considered materials outside the pleadings when granting summary disposition, [307 Mich.App. 584] meaning that we review the decision as having been granted under MCR 2.116(C)(10). Hughes v Region VII Area Agency on Aging, 277 Mich.App. 268, 273; 744 N.W.2d 10 (2007). Summary disposition should be granted under MCR 2.116(C)(10) when " there is no genuine issue of material fact . . . ." Id. In determining whether a conflict in the evidence remains, the pleadings, affidavits, depositions, admissions and other evidence submitted by the parties must be viewed in the light most favorable to the nonmoving party. Maiden v Rozwood, 461 Mich. 109, 120; 597 N.W.2d 817 (1999). A material question of fact remains when, after viewing the evidence in this light, reasonable minds could differ on an issue. Allison v AEW Capital Mgt, LLP, 481 Mich. 419, 425; 751 N.W.2d 8 (2008).

The present case is clearly one of premises liability, meaning that plaintiff's injury arose from an allegedly dangerous condition on the land. Buhalis v Trinity Continuing Care Servs, 296 Mich.App. 685, 692; 822 N.W.2d 254 (2012). To state a claim of premises liability, a plaintiff must show the elements of negligence; that is, a plaintiff must demonstrate that " (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff's injury, and (4) the plaintiff suffered damages." Benton v Dart Props, Inc, 270 Mich.App. 437, 440; 715 N.W.2d 335 (2006).

In this case, we note that the parties focus their appellate arguments on the issues of proximate causation, and whether, for purposes of assessing defendants' duty, the danger in question was open and obvious, and, if so, whether the open and obvious danger had " special aspects." Before reaching the parties' arguments, under the particular circumstances of this case, we find it necessary to first decide plaintiff's status as an entrant [307 Mich.App. 585] on defendants' property in order to ascertain the duty owed by defendants.2 See James v Alberts, 464 Mich. 12, 20; 626 N.W.2d 158 (2001) ( recognizing that an individual's status as trespasser, licensee, or invitee determines the landowner's attendant duty). Specifically, the parties apparently operate under the assumption that plaintiff was an invitee at the time of his injury, but, for the reasons explained in this opinion, we have determined that plaintiff was, at best, a licensee at the time of his injury, and, for this reason, defendants owed plaintiff a reduced standard of care which did not include an affirmative obligation to make the premises safe for plaintiff or to warn him of the evident danger posed by knocking down icicles.

In Michigan, the duty owed by a landowner with respect to the conditions of his or her land depends on the category of person entering the land, i.e., whether the individual is a (1) trespasser, (2) licensee, or (3) invitee. Id. at 19. An explanation of the respective categories, and the attendant standard of care owed by a landowner, was provided in Stitt v Holland Abundant Life Fellowship, 462 Mich. 591, 596-597; 614 N.W.2d 88 (2000), wherein the Court stated:

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A " trespasser" is a person who enters upon another's land, without the landowner's consent. The landowner owes no duty to the trespasser except to refrain from injuring him by " wilful and wanton" misconduct.

A " licensee" is a person who is privileged to enter the land of another by virtue of the possessor's consent. A landowner owes a licensee a duty only 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 [307 Mich.App. 586] know of the dangers involved. The landowner owes no duty of inspection or affirmative care to make the premises safe for the licensee's visit. Typically, social guests are licensees who assume the ordinary risks associated with their visit. The final category is invitees. An " invitee" is " a person who enters upon the land of another upon an invitation which carries with it an implied representation, assurance, or understanding that reasonable care has been used to prepare the premises, and make [it] safe for [the invitee's] reception." The landowner has a duty of care, not only to warn the invitee of any known dangers, but the additional obligation to also make the premises safe, which requires the landowner to inspect the premises and, depending upon the circumstances, make any necessary repairs or warn of any discovered hazards. Thus, an invitee is entitled to the highest level of protection under premises liability law. [Citations omitted.]

For purposes of determining a landowner's duty in a premises liability case, the entrant's status as an invitee, licensee, or trespasser on the land is considered " at the time of injury." Burnett v Bruner, 247 Mich.App. 365, 368; 636 N.W.2d 773 (2001). Typically, invitee status is conferred on individuals entering the property of another for business purposes, meaning there must be some prospect of pecuniary gain prompting the landowner to extend an invitation onto the premises. Stitt, 462 Mich. at 597, 603-604. For instance, a tenant is considered an invitee of the landlord. Benton, 270 Mich.App. at...

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