Harris v. NJM Mgmt.
| Decision Date | 18 May 2023 |
| Docket Number | 361399 |
| Parties | SHARON HARRIS, Plaintiff-Appellant, v. NJM MANAGEMENT CO., INC., K.F.C. TAKE HOME OF FRASER, INC., SHANE ASSOCIATES CORP., and KENTUCKY FRIED CHICKEN, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Macomb Circuit Court LC No. 2020-003432-NO
Before: LETICA, P.J., and BORRELLO and RIORDAN, JJ.
In this premises liability action, plaintiff appeals as of right the trial court's order granting defendants' motion for summary disposition. We affirm.
This case arises from injuries incurred by plaintiff when she tripped on an allegedly loose and raised metal door plate at the entrance of defendants' restaurant. The restaurant had two public entrances, one located on the south side of the building and the other on the north side. The restaurant also had a drive-through window on the north side of the building.[1] Plaintiff had visited the restaurant several times without incident.
But, in late September 2017 at approximately 5:30 p.m., plaintiff went to defendants' restaurant to pick up dinner for her family. The weather conditions were clear and dry. Plaintiff entered the restaurant through the south entrance and was not carrying anything in her hands when she entered the building. Plaintiff opened the entrance door with her left hand tripped over the "threshold," and sustained injuries from her fall. She described the threshold as "the area where the metal border is before you go into the door,"[2] and she could see the threshold before she fully opened the door.[3] Specifically, plaintiff testified that her left gym shoe became lodged under the entrance threshold because the threshold was raised, loose, and separate from the concrete sidewalk. Because the top of her shoe lodged under the loose and raised threshold, plaintiff's head hit the second door in the foyer, and she landed on the floor. At that time, plaintiff looked to see what caused her fall and saw "the threshold was separated from the floor."[4] A customer assisted plaintiff to a seat in the restaurant. Plaintiff briefly spoke to the restaurant manager named Joshua, who called 911. Because of her injuries to her head, shoulder, and hand, an ambulance was called and took plaintiff to the hospital. Her wrist and hand were placed in a cast, and she was instructed to follow up with her family physician.
Plaintiff visited the restaurant after her injury but only used the drive-through window. Therefore, she was unsure if any changes were made to the threshold. Additionally, plaintiff did not know there was any other entrance into the restaurant other than the south entrance. Plaintiff could not remember the color of the door frame but knew that the door was clear glass. She could not recall the color of the entrance before the door or whether it was cement or asphalt. Plaintiff also was unaware if any of the restaurant employees had inspected the threshold that day.
Plaintiff filed a complaint alleging defendants were liable for plaintiff's injuries under premises liability and ordinary negligence theories.[5] Defendants moved for summary disposition under MCR 2.116(C)(10), claiming that the threshold was an open and obvious condition that did not present an unreasonable risk of harm, and that plaintiff failed to establish that defendants had notice of the threshold's condition. Plaintiff opposed defendants' motion and moved for summary disposition in her favor under MCR 2.116(I)(2). Plaintiff alleged that the tripping hazard posed by the threshold was not an open and obvious condition visible upon casual inspection, and defendants breached the duty to exercise reasonable care to protect her. Plaintiff further asserted that the condition was effectively unavoidable because she had to encounter it to enter the restaurant; she was unaware that there was another door to enter the restaurant. Finally, plaintiff submitted that the open and obvious doctrine did not apply to the hazards that were created by defendants' own negligence. And, she contended that defendants had actual or constructive notice of the threshold's condition because they had a duty to inspect the premises for hazards.[6] In reply, defendants reiterated that the condition was open and obvious and did not present a severe risk of harm, there were no special aspects to the condition, and plaintiff failed to plead a separate claim of negligence.
At the motion hearing, the parties argued consistent with their briefs. The trial court issued a written opinion that granted defendants' motion for summary disposition under MCR 2.116(C)(10), and thereby implicitly denied plaintiff's motion under MCR 2.116(I)(2). The trial court concluded plaintiff's claim sounded solely in premises liability because the incident arose from a condition on defendants' property and failed to suggest that defendants' agents played an active role in causing the injury. Further, it determined that the threshold was an open and obvious danger because it was a metallic color that clearly contrasted against the cement sidewalk and the inner floor of the restaurant. The threshold was also avoidable because plaintiff was not required to confront the hazard. Specifically, plaintiff could have used the second entrance, used the drive-through window, or proceeded to a different restaurant. Thus, the trial court granted defendants' motion because there was no genuine issue of material fact regarding whether the threshold was an open and obvious hazard without special aspects.[7] Plaintiff appeals.
A trial court's decision on a motion for summary disposition is reviewed de novo. Batista v Office of Retirement Servs, 338 Mich.App. 340, 354; 980 N.W.2d 107 (2021). A motion for summary disposition premised on MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Charter Twp of Pittsfield v Washtenaw Co Treasurer, 338 Mich.App. 440, 449; 980 N.W.2d 119 (2021). The moving party must identify and support the issues to which the moving party believes there is no genuine issue of material fact, and the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted with the motion must be examined. Id. Once the moving party makes and supports its motion, the opposing party may not rest on mere allegations or denials in the pleadings, but must submit documentary evidence setting forth specific facts to demonstrate a genuine issue for trial. Id.
Plaintiff contends that the trial court erred in concluding that plaintiff's ordinary negligence claim failed because she was required to prove that defendants actively played a role in plaintiff's trip on the threshold. She further alleged that defendants' negligently allowed the threshold to remain loose and unrepaired, thereby presenting an issue for the jury. We disagree.
"If the plaintiff's injury arose from an allegedly dangerous condition on the land, the 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). Further, "[w]hen the claim is based on a condition of the premises, liability arises solely from the defendant's duty as an owner, possessor, or occupier of land." Pugno v Blue Harvest Farms, LLC, 326 Mich.App. 1, 13; 930 N.W.2d 393 (2018) (quotation marks and citation omitted). Here, plaintiff's claim arose from a condition on defendants' property (the raised threshold at the restaurant's entrance). Thus, the claim sounds solely in premises liability.[8]
Plaintiff alleges that the trial court erred in concluding that the condition was open and obvious. Because the loose and unrepaired threshold was not visible on casual inspection, not avoidable, and presented special aspects, she submits that a factual issue was raised for the jury. We disagree.
"[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). However, the premises owner's duty does not extend to conditions that are "open and obvious." Id. If the conditions "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. (quotation marks and citation omitted). In analyzing whether a condition is open and obvious, we use the objective test of "whether a reasonable person in [plaintiff's] position would foresee the danger." Joyce v Rubin, 249 Mich.App. 231, 238-239; 642 N.W.2d 360 (2002) (quotation marks and citation omitted). Likewise, we analyze whether "an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection." Id. at 238 (quotation marks and citation omitted). The determination depends on the characteristics of a reasonably prudent person, and not on the characteristics of a specific plaintiff. Mann v Shusteric Enterprises, Inc, 470 Mich. 320, 329 n 10; 683 N.W.2d 573 (2004). In Michigan, it is the overriding public policy to encourage people to take reasonable care for their own safety and watch where they are walking. Bertrand v Alan Ford, Inc, 449 Mich. 606, 616-617; 537 N.W.2d 185 (1995). Accordingly, a possessor of land does not have a duty to make ordinary steps "foolproof." Id.
Given the conditions and viewing the facts in a light most...
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