Finazzo v. Fire Equip. Co.

• Decision Date: 17 April 2018
• Docket Number: No. 338421,338421
• Parties: David FINAZZO, Plaintiff-Appellant, v. FIRE EQUIPMENT COMPANY and Low Voltage Building Technologies, Inc., Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

323 Mich.App. 620

918 N.W.2d 200

David FINAZZO, Plaintiff-Appellant,

v.FIRE EQUIPMENT COMPANY and Low Voltage Building Technologies, Inc., Defendants-Appellees.

No. 338421

Court of Appeals of Michigan.

Submitted April 3, 2018, at Detroit.

Decided April 17, 2018, at 9:05 a.m.

Robert L. Baker for David Finazzo.

Merry, Farnen & Ryan, PC (by John J. Schutza ) for Fire Equipment Company.

Segal McCambridge Singer & Mahoney (by David J. Yates, Eric P. Conn, and Michael P. Wisniewski ) for Low Voltage Building Technologies, Inc.

Before: Servitto, P.J., and Markey and O'Connell, JJ.

Markey, J.

Plaintiff filed a negligence complaint sounding in premises liability regarding injuries he received from a fall while working as a security guard at ITC Holdings Corp. (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 danger 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.

Plaintiff, 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 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 through 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.

Defendants 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 danger doctrine. In support of their position, defendants cited 2 Restatement Torts, 2d, § 384, p. 289, certain unpublished decisions of this Court, and more than 20 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 plaintiff had, in fact, safely stepped over it numerous times.

Plaintiff 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.

The trial court ruled that plaintiff's claim was one of premises liability and that the open and obvious danger 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.

I. STANDARD OF REVIEW

This 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, 597 N.W.2d 817 ; 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, 597 N.W.2d 817. 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 (2016). " ‘A genuine issue of material fact exists when the record leaves open an issue on which reasonable minds could differ.’ " Id . at 756, 887 N.W.2d 456 (citation omitted).

"Duty" is a legally recognized obligation to conform one’s 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).

II. THE OPEN AND OBVIOUS DANGER DOCTRINE

We affirm the trial court's application of the open and obvious danger doctrine to the facts of this case and its grant of summary disposition to defendants on that basis.

Plaintiff's 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. Trinity Continuing Care Servs. , 296 Mich. App. 685, 692, 822 N.W.2d 254 (2012) ; see also Kachudas v. Invaders Self Auto Wash, Inc. , 486 Mich. 913, 781 N.W.2d 806 (2010).

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." Hoffner v. Lanctoe , 492 Mich. 450, 461, 821 N.W.2d 88 (2012). The cable on the floor in this case was open and obvious. No factual dispute exists that plaintiff was indeed warned of the cable; he could see it, and he could have easily avoided it by simply stepping over it. The trial court correctly ruled that while making changes to the property on behalf of its owner/possessor ITC, defendants are "subject to the same liability, and enjoy[ ] the same freedom from liability, as though [they] were the possessor[s] of the land...." 2 Restatement Torts, 2d, § 384, p. 289. Generally, "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." Lugo v. Ameritech Corp. Inc. , 464 Mich. 512, 516, 629 N.W.2d 384 (2001). But this duty does not extend to having to remove open and obvious dangers absent the presence of special aspects. Id . at 516-517, 629 N.W.2d 384 ; Buhalis , 296 Mich. App. at 693, 822 N.W.2d 254. 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. Hoffner , 492 Mich. at 461, 821 N.W.2d 88 ; Lugo , 464 Mich. at 517-518, 629 N.W.2d 384. No special aspects existed in this case.

Generally, however, for a party to be subject to premises liability in favor of persons coming on the land, the party must possess and control the property at issue but not necessarily be its owner. See Kubczak v. Chem. Bank & Trust Co. , 456 Mich. 653, 660, 575 N.W.2d 745 (1998) ; Merritt v. Nickelson , 407 Mich. 544, 552, 287 N.W.2d 178 (1980). This rule is based on the principle that a party " ‘in possession is in a position of control, and normally best able to prevent any harm to others.’ " Merritt , 407 Mich. at 552, 287 N.W.2d 178, quoting Prosser, Torts (4th ed.), § 57, p. 351 (emphasis added). In Kubczak , 456 Mich. at 662, 575 N.W.2d 745, the Court expounded on this principle by quoting Nezworski v. Mazanec , 301 Mich. 43, 56, 2 N.W.2d 912 (1942) :

"It is a general proposition that liability for an injury due to defective premises ordinarily depends upon power to prevent the injury and therefore rests primarily upon him who has control and possession."

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"Liability for negligence does not depend upon title; a person is liable for an injury resulting from his negligence in respect of a place or instrumentality which is in his control or

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