Blackwell v. Franchi

• Decision Date: 31 January 2017
• Docket Number: No. 328929,328929
• Citation: 318 Mich.App. 573,899 N.W.2d 415
• Parties: Susan BLACKWELL, Plaintiff–Appellant, v. Dean FRANCHI and Debra Franchi, Defendants–Appellees.
• Court: Court of Appeal of Michigan — District of US

318 Mich.App. 573

899 N.W.2d 415

Susan BLACKWELL, Plaintiff–Appellant,

v.Dean FRANCHI and Debra Franchi, Defendants–Appellees.

No. 328929

Court of Appeals of Michigan.

Submitted December 13, 2016, at Detroit.

January 31, 2017, at 9:00 a.m.

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.¹

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).² 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.³ 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.

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.⁴

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...