Cox v. Am. Multi-Cinema, Inc.

Decision Date10 November 2022
Docket Number357588
PartiesCHERYL COX and FRANK COX, Plaintiffs-Appellants, v. AMERICA MULTI-CINEMA, INC., Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US


Oakland Circuit Court LC No. 2020-180668-NO



Plaintiffs appeal by right the trial court's order granting defendant's motion for summary disposition under MCR 2.116(C)(10). We affirm.


On December 4, 2018, plaintiff Cheryl Cox (Cheryl) purchased a ticket at a movie theater owned by defendant. She was using a wheeled mobility scooter as she entered the theater auditorium. Cheryl testified at her deposition that she was fully blind in her right eye and had 50% vision in her left eye, but did not tell any of the theater staff about her vision problems. After Cheryl entered the empty auditorium she decided to turn around and exit the auditorium to ask staff for assistance with parking her mobility scooter. She admitted at her deposition that she could have walked out of the auditorium to get help, but chose to remain in her mobility scooter. When Cheryl attempted to turn around, she accidentally backed the mobility scooter down some steps, resulting in her falling down and her mobility scooter landing on top of her, causing injury.

Plaintiffs filed a complaint against defendant alleging claims of negligence and loss of consortium. Plaintiffs claimed that defendant had breached its duty to Cheryl by having poor theater design, low lighting, and inadequate staff training, and by failing to properly mark hazards and handicapped seating sections. Defendant denied that it breached a duty owed to Cheryl and moved for summary disposition, arguing that plaintiffs' claims were barred by the open and obvious doctrine because steps—especially the steps at issue, which were lined with white handrails, lights, aluminum edges, and yellow and black stripes—are an open and obvious condition that do not present unreasonable danger. Defendant also argued that Cheryl's vision problems did not preclude application of the open and obvious doctrine.

Plaintiffs responded by arguing for the first time that defendant had negligently violated the Americans with Disabilities Act (ADA), 42 USC 12101 et seq., when designing its theater auditorium. Plaintiffs also claimed that special aspects existed that negated the application of the open and obvious doctrine.

After a hearing on defendant's motion, the trial court issued a written opinion in which it concluded, as a matter of law, that the allegedly hazardous condition was open and obvious and that there were no attendant special aspects. As for the ADA argument, the trial court determined that plaintiffs had failed to timely raise a claim for violation of the ADA in their complaint. Finally, the trial court determined that plaintiffs' loss of consortium claim failed because it was derivative of the failed premises liability claim.

This appeal followed.


This Court "reviews de novo a trial court's ruling on a motion for summary disposition." Zarzyski v Nigrelli, 337 Mich.App. 735, 740; 976 N.W.2d 916 (2021). A party is entitled to summary disposition under MCR 2.116(C)(10) when the evidence does not present a genuine issue of material fact. Jewett v Mesick Consol Sch Dist, 332 Mich.App. 462, 470; 957 N.W.2d 377 (2020). "A genuine issue of material fact exists when the record, viewed in the light most favorable to the nonmoving party, leaves open an issue upon which reasonable minds might differ." MacDonald v Ottawa Co, 335 Mich.App. 618, 622; 967 N.W.2d 919 (2021) (quotation marks and citation omitted). "The reviewing court should evaluate a motion for summary disposition under MCR 2.116(C)(10) by considering the substantively admissible evidence actually proffered in opposition to the motion." Jewett, 332 Mich.App. at 470 (quotation marks and citation omitted). This includes pleadings, affidavits, admissions, and depositions, along with other evidence submitted by the parties. Walega v Walega, 312 Mich.App. 259, 265-266; 877 N.W.2d 910 (2015). This Court reviews issues of law de novo. Kocher v Dep't of Treasury, 241 Mich.App. 378, 380; 615 N.W.2d 767 (2000).


Plaintiffs argue that the trial court erred by granting defendant's motion for summary disposition. We disagree.

In premises liability cases, "a plaintiff must prove the elements of negligence: (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." Mouzon v Achievable Visions, 308 Mich.App. 415, 418; 864 N.W.2d 606 (2014) (quotation marks and citation omitted). "Questions regarding whether a duty exists are for the court to decide as a matter of law." Id. (quotation marks and citation omitted). "The threshold question in a negligence action is whether the defendant owed a duty to the plaintiff." Fultz v Union-Commerce Assoc, 470 Mich. 460, 463; 683 N.W.2d 587 (2004). There can be no tort liability if the defendant did not owe a duty to the plaintiff. Id.

In general, "a premises possessor owes a duty to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land." Finazzo v Fire Equip Co, 323 Mich.App. 620, 626; 918 N.W.2d 200 (2018) (citation omitted). An invitee is someone who enters the "property of another for business purposes." Stitt v Holland Abundant Life Fellowship, 462 Mich. 591, 597; 614 N.W.2d 88 (2000). "But this duty does not extend to having to remove open and obvious dangers absent the presence of special aspects." Finazzo, 323 Mich.App. at 626. "A condition of the land is open and obvious when it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection." Id. (quotation marks and citation omitted). "Special aspects exist and impose a duty of care to protect those lawfully on the premises even if a hazard is open and obvious when the condition is effectively unavoidable or imposes an unreasonably high risk of severe harm." Id. at 627 (citation omitted).

Steps are generally considered an open and obvious condition. Bertrand v Alan Ford, Inc, 449 Mich. 606, 614; 537 N.W.2d 185 (1995) (citation omitted). "[B]ecause steps are the type of everyday occurrence that people encounter, under most circumstances, a reasonably prudent person will look where he is going, will observe the steps, and will take appropriate care for his own safety." Id. "Different floor levels in private and public buildings, connected by steps, are so common that the possibility of their presence is anticipated by prudent persons." Id. at 615 (quotation marks and citation omitted). A landowner does not have to make his land foolproof to prevent people from harming themselves. Id. at 616-617. Generally, open and obvious dangers do not have to be removed because the open and obvious doctrine will cut off liability. Lugo v Ameritech Corp, Inc, 464 Mich. 512, 516; 629 N.W.2d 384 (2001) (citation omitted). Steps and differing floor levels are not ordinarily actionable unless conditions exist that make them unreasonably dangerous. Bertrand, 449 Mich. at 614.

Plaintiffs acknowledge that steps are generally considered an open and obvious condition on land, but argue that these particular steps possessed special aspects that precluded the application of the doctrine. Plaintiffs also argue that the trial court should have considered Cheryl's subjective vantage point in considering whether the steps were open and obvious. Additionally, plaintiffs argue that the trial court should have considered their claim for ADA violations. We disagree with each argument.


Plaintiffs argue that the steps presented an unreasonable risk of harm because of attendant special aspects. See Finazzo, 323 Mich.App. at 626 (stating that attendant special aspects can negate the open and obvious doctrine defense). We disagree. There are two ways for an open and obvious danger to possess special aspects which negate the application of the open and obvious doctrine: (1) the danger is unreasonable, or (2) the danger is effectively unavoidable. Hoffner v Lanctoe, 492 Mich. 450, 463; 821 N.W.2d 88 (2012).


For a condition to pose an unreasonable risk of harm, it must give rise to a uniquely high risk of severe harm if the risk is not avoided. Lugo, 464 Mich. at 518-519. Consider the following:

It would, for example, be inappropriate to conclude in a retrospective fashion that merely because a particular plaintiff, in fact, suffered harm or even severe harm, that the condition at issue in a case posed a uniquely high risk of severe harm. This is because a plaintiff may suffer a more or less severe injury because of idiosyncratic reasons, such as having a particular susceptibility to injury or engaging in unforeseeable conduct, that are immaterial to whether an open and obvious danger is nevertheless unreasonably dangerous .... [T]his opinion does not allow the imposition of liability merely because a particular open and obvious condition has some potential for severe harm. [Id. at 518 n 2.]

The appropriate inquiry is whether there are truly special aspects which make the risk created by the condition different from risks presented by typical open and obvious conditions. Id. at 517518. Generally, a premises owner need not protect an invitee from open and obvious dangers unless there are special aspects which make even an open and obvious condition unreasonably dangerous. Id. at 517. When evaluating open and obvious dangers, the crucial question is whether the...

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