Corey v. DEVENPORT COLLEGE OF BUSINESS, Docket No. 206185.

• Decision Date: 08 August 2002
• Docket Number: Docket No. 206185.
• Citation: 649 N.W.2d 392,251 Mich. App. 1
• Parties: Lance E. COREY, Plaintiff-Appellant, v. DAVENPORT COLLEGE OF BUSINESS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

649 N.W.2d 392

251 Mich. App. 1

Lance E. COREY, Plaintiff-Appellant, v. DAVENPORT COLLEGE OF BUSINESS, Defendant-Appellee.

Docket No. 206185.

Court of Appeals of Michigan.

Submitted November 20, 2001, at Grand Rapids.

Decided April 26, 2002, at 9:00 a.m.

Released for Publication August 8, 2002.

Hansen & Herrick, P.C. (by Jennifer A. Herrick), Grand Rapids, for the plaintiff.

Law Offices of Bigler, Berry, Johnston, Sztykiel & Hunt, P.C. (by Edwin J. Vander Ploeg, Jr.), Holland, for the defendant.

Before: MARKEY, P.J., and NEFF¹ and SAAD, JJ.

ON REMAND

MARKEY, P.J.

This case involves a slip and fall incident on snowy and icy steps located outside one of defendant's dormitories. Plaintiff appealed by right the trial court's order granting summary disposition in favor of defendant and dismissing plaintiff's premises liability action against defendant. In Corey v. Davenport College of Business, unpublished opinion per curiam of the Court of Appeals, issued July 6, 1999 (Docket No. 206185), 1999 WL 33439553, we reversed and remanded for further proceedings. In lieu of granting defendant's application for leave to appeal, our Supreme Court remanded this matter to us for reconsideration in light of Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 629 N.W.2d 384 (2001). Corey v. Davenport College of Business, 465 Mich. 885, 636 N.W.2d 138 (2001). Upon reconsideration, we vacate our previous opinion and affirm the trial court's grant of summary disposition in favor of defendant.

In this case, we must decide whether the icy steps on which plaintiff fell were an open and obvious condition and, if so, whether the condition of the steps was still unreasonably dangerous despite being open and obvious.

In Lugo, supra at 514, 629 N.W.2d 384, the plaintiff sued the defendant after falling in a pothole in the defendant's parking lot. The trial court granted the defendant summary disposition on the basis of the open and obvious danger doctrine; however, this Court reversed on appeal. Id. The Supreme Court granted leave, reversed the decision of this Court, and reinstated the trial court's grant of summary disposition to the defendant. Id.

The Supreme Court in Lugo first reiterated the general rule that a landowner has a duty to exercise reasonable care to protect an invitee from an unreasonable risk of harm caused by a dangerous condition on the land. Id. at 516, 629 N.W.2d 384. However, the landowner's duty does not generally include the removal of open and obvious dangers:

"[W]here the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, an invitor owes no duty to protect or warn the invitee unless he should anticipate the harm despite knowledge of it on behalf of the invitee." [Id., quoting Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 96, 485 N.W.2d 676 (1992).]

The Lugo Court further explained that "the open and obvious doctrine should not be viewed as some type of `exception' to the duty generally owed invitees, but rather as an integral part of the definition of that duty." Lugo, supra at 516, 629 N.W.2d 384. The Supreme Court held that the landowner is not required to protect an invitee from an open and obvious danger unless "special aspects" of the condition make it unreasonably dangerous. Id. at 517, 629 N.W.2d 384. Special aspects that serve to remove a condition from the open and obvious danger doctrine are those that "give rise to a uniquely high likelihood of harm or severity of harm if the risk is not avoided...." Id. at 519, 629 N.W.2d 384. The illustrations of special aspect conditions discussed in Lugo were (1) "an unguarded thirty foot deep pit in the middle of a parking lot" resulting in a fall of an extended distance and (2) standing water at the only exit of a commercial building resulting in the condition being unavoidable because no alternative route is available. Id. at 518, 520, 629 N.W.2d 384. The Court stated that liability would not be imposed "merely because a particular open and obvious condition has some potential for severe harm." Id. at 518, n. 2, 629 N.W.2d 384.

In Joyce v. Rubin, 249 Mich.App. 231, 642 N.W.2d 360 (2002), this Court recently applied the principles expressed in Lugo in a case similar to the instant case, i.e., one involving a slip and fall incident on a snowy and icy sidewalk. In Joyce, supra at 235-237, 642 N.W.2d 360, this Court initially addressed whether the open and obvious danger doctrine applies only to claims of failure to warn and not to claims of failure to maintain premises. The Joyce Court specifically held that the open and obvious doctrine "clearly applies to this case involving a common-law duty to maintain premises and, therefore, the trial court correctly concluded that the doctrine applies here." Id. at 237, 642 N.W.2d 360. This conclusion also clearly applies to the present case.

The Court in Joyce next analyzed whether the ice and snow on the sidewalk was an open and obvious condition. Id. at 237-238, 642 N.W.2d 360.

The test to determine if a danger is open and obvious is whether "an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection." Novotney v. Burger King Corp. (On Remand), 198 Mich.App. 470, 475, 499 N.W.2d 379 (1993). Because the test is objective, this Court "look[s] not to whether plaintiff should have known that the [condition] was hazardous, but to whether a reasonable person in his position would foresee the danger." Hughes v. PMG Bldg., Inc., 227 Mich.App. 1, 11, 574 N.W.2d 691 (1997). [Joyce, supra at 238-239, 642 N.W.2d 360.]

The Court determined that the plaintiff was "undoubtedly aware" of the snowy and icy condition of the sidewalk and the danger of slipping before she fell. Id. at 239-240, 642 N.W.2d 360. The Court concluded that the trial court had properly determined that the condition was open and obvious. Id. The analysis and conclusion in Joyce are applicable to instant plaintiff. Plaintiff is a reasonable person who recognized the snowy and icy condition of the steps and the danger the condition presented. Thus, we also conclude that the condition was open and obvious in the present case.

The Joyce Court next analyzed whether the slippery sidewalk nonetheless presented an unreasonably dangerous risk, even though the danger was open and obvious, such that the landowner had a duty to undertake reasonable precautions to protect the plaintiff. Id. at 240-243, 642 N.W.2d 360. The Court relied on our Supreme Court's opinion in Lugo for guidance. The Joyce Court stated that if a danger is deemed open and obvious, then

"the critical question is whether there is evidence that creates a genuine issue of material fact regarding whether there are truly `special aspects' of the open and obvious condition that differentiate the risk from typical open and obvious risks so as to create an unreasonable risk of harm, i.e., whether the `special aspect' of the condition should prevail in imposing liability upon the defendant or the openness and obviousness of the condition should prevail in barring liability." [Id. at 241, 642 N.W.2d 360, quoting Lugo, supra at 517-518, 629 N.W.2d 384.]

In Joyce, the plaintiff argued that the open and obvious condition of the snowy sidewalk was "effectively unavoidable." Id. Nonetheless, the Joyce Court, in applying Lugo, determined that although the plaintiff had indicated she had no choice but to use the slippery sidewalk to the front door, she had in fact presented no evidence that the "condition and surrounding circumstances would `give rise to a uniquely high likelihood of harm' or that it was an unavoidable risk." Id. at 242, 642 N.W.2d 360. The Joyce Court concluded that there was no evidence to suggest that "the condition was so unreasonably dangerous that it would create a risk of death or severe injury." Id. at 243, 642 N.W.2d 360.

In applying Lugo and Joyce to the present case, we conclude that the slippery steps at issue here were not only an open and obvious condition but also there are no "special aspects" of the steps that create a "uniquely high likelihood of harm or severity of harm" if the risk is not avoided or serve to remove that condition from the open and obvious danger doctrine. Plaintiff here testified that although he saw the steps and their condition and knew that there was an alternate route into the building that was close by, he nonetheless attempted to use them. Although the steps likely had "some potential for severe harm," Lugo, supra at 518, n. 2, 629 N.W.2d 384, we have no doubt that these circumstances are not the type of special aspects that Lugo contemplated. In this case, the stairway on which plaintiff fell consisted of three steps and was elevated only a couple of feet. Falling several feet to the ground is not the same as falling an extended distance such as into a thirty-foot-deep pit. Id. at 518, 520, 629 N.W.2d 384. Falling thirty feet presents "such a substantial risk of death or severe injury... that it would be unreasonably dangerous to maintain the condition...." Id. at 518, 629 N.W.2d 384 (emphasis added). "Unlike falling an extended distance, it cannot be expected that a typical person [falling a distance of several feet] would suffer severe injury" or a substantial risk of death. Id. at 518, 520, 629 N.W.2d 384.

Our conclusion that the open and obvious condition in this case did not...