Hottmann v. Hottmann, Docket No. 190028

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: MARK J. CAVANAGH; MURPHY; SAWYER
• Citation: 572 N.W.2d 259,226 Mich.App. 171
• Parties: , 1998 O.S.H.D. (CCH) P 31,565 Randall HOTTMANN and Cynthia Hottmann, Plaintiffs-Appellants, v. Richard Leroy HOTTMANN and Deborah Joy Hottmann, Defendants-Appellees.
• Decision Date: 24 October 1997
• Docket Number: Docket No. 190028

Page 259

572 N.W.2d 259 226 Mich.App. 171, 1998 O.S.H.D. (CCH) P 31,565 Randall HOTTMANN and Cynthia Hottmann, Plaintiffs-Appellants,
v.
Richard Leroy HOTTMANN and Deborah Joy Hottmann, Defendants-Appellees. Docket No. 190028. Court of Appeals of Michigan. Submitted April 9, 1997, at Detroit.
Decided Oct. 24, 1997, at 9:25 a.m.
Released for Publication Jan. 22, 1998.

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[226 Mich.App. 172] David D. Kohl, Novi, for Plaintiffs-Appellants.

Orlans & Sherbow, P.C. by Linda M. Orlans, Troy, for Defendants-Appellees.

Before SAWYER, P.J., and MURPHY and MARK J. CAVANAGH, JJ.

[226 Mich.App. 173] MARK J. CAVANAGH, Judge.

Plaintiffs Randall and Cynthia Hottmann appeal as of right the trial court order granting defendants Richard and Deborah Hottmann's motion for summary disposition pursuant to MCR 2.116(C)(10) in this premises liability action. We affirm in part, reverse in part, and remand for further proceedings.

In the autumn of 1993, defendants were remodeling their Oxford home. On November 21, 1993, Richard Hottmann (hereafter defendant) enlisted the help of his brothers, Randall Hottmann (hereafter plaintiff) and Robert Hottmann, in putting a new roof on the house and garage. In a deposition, plaintiff testified that he was not paid for his services and did not expect anything in return for his assistance. Plaintiff explained that family members regularly helped one another with similar projects, and defendant

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previously had contributed to work plaintiff had done on his own home.

The new roof on defendant's house had a twelve-by-twelve pitch, that is, it was set at a forty-five-degree angle. Because of the unusually steep roof pitch, plaintiff proposed that they use roof jacks to build a temporary walkway to stand on while working. However, after some discussion, it was decided that they would not use the roof jacks because they did not have enough. ¹ Instead, defendant nailed two-by-four [226 Mich.App. 174] boards to the plywood roofing to provide a foothold for working on the roof. While walking along one of the two-by-four boards, plaintiff fell and broke his arm.

On December 19, 1994, plaintiff and his wife filed their complaint against defendant and his wife. Plaintiff alleged that he was an invitee at the time he was working on the roof, and that defendant breached the duty of care owed to invitees by failing to maintain the premises in a reasonably safe condition. Plaintiff further alleged that defendant negligently allowed him to work on the roof without following the safety precautions required by the Michigan Occupational Safety and Health Act (MIOSHA), M.C.L. § 408.1001 et seq.; M.S.A. § 17.50(1) et seq.

Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (10). On October 23, 1995, the trial court held that the danger of falling off the roof was open and obvious and therefore defendant could not be found liable for negligence under Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 485 N.W.2d 676 (1992). The trial court also found that plaintiff was not an employee at the time the accident occurred and therefore was not covered by the MIOSHA regulations. Accordingly, the trial court granted defendants' motion for summary disposition pursuant to MCR 2.116(C)(10). The order incorporating this decision was entered the same day.

226 Mich.App. 175] I

Plaintiff first argues that the trial court erred in granting defendant's motion for summary disposition on the basis that the danger was open and obvious. On appeal, an order granting or denying summary disposition is reviewed de novo. A motion for summary disposition may be granted pursuant to MCR 2.116(C)(10) when, except with regard to the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Giving the benefit of reasonable doubt to the nonmovant, the trial court must determine whether a record might be developed that would leave open an issue upon which reasonable minds might differ. Plieth v. St. Raymond Church, 210 Mich.App. 568, 571, 534 N.W.2d 164 (1995).

A landowner's duty to a visitor depends on that visitor's status. Stanley v. Town Square Cooperative, 203 Mich.App. 143, 146, 512 N.W.2d 51 (1993). In the present case, because plaintiff was on defendant's premises for the purpose of performing services beneficial to defendant, he had the status of an invitee rather than a mere licensee. See id. at 147, 512 N.W.2d 51; Leveque v. Leveque, 41 Mich.App. 127, 130-131, 199 N.W.2d 675 (1972).

In Bertrand v. Alan Ford, Inc., 449 Mich. 606, 537 N.W.2d 185 (1995), the Supreme Court clarified the duty owed by a landowner to an invitee where a dangerous condition is open and obvious. The Court stated that, while a possessor of land may have no obligation to warn invitees of an open and obvious danger, he may still have a duty to protect invitees against foreseeably dangerous conditions. Id. at 610-611, 537 N.W.2d 185. The Court explained:

[226 Mich.App. 176] [T]he rule generated is that if the particular activity or condition creates a risk of harm only because the invitee does not discover the condition or realize its danger,

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then the open and obvious doctrine will cut off liability if the invitee should have discovered the condition and realized its danger. On the other hand, if the risk of harm remains unreasonable, despite its obviousness or despite knowledge of it by the invitee, then the circumstances may be such that the invitor is required to undertake reasonable precautions. The issue then becomes the standard of care and is for the jury to decide. [Id. at 611, 537 N.W.2d 185.

In the present case, as both parties agree, the danger of falling off a steep roof is open and obvious. However, the risk of falling is not eliminated by awareness of the hazard. In this circumstance, the fact that the danger was open and obvious does not relieve defendant of the duty to take reasonable precautions to prevent such falls. ² See id.

A property owner is not required to make his entire premises "foolproof." Id. at 616-617, 537 N.W.2d 185; Spagnuolo v. Rudds # 2, Inc., 221 Mich.App. 358, 362, 561 N.W.2d 500 (1997). Nevertheless, a genuine issue of fact remains regarding whether defendant took reasonable care to prevent harm to plaintiff while they were working on the steep roof. While plaintiff may be comparatively negligent for going on the roof without utilizing whatever additional safety measures he considered [226 Mich.App. 177] appropriate, such negligence does not vitiate defendant's duty to take reasonable care for the safety of his invitees. Accordingly, the trial court erred in granting defendant's motion for summary disposition with regard to this issue.

II

Plaintiffs also contend that the trial court erred in ruling that the provisions of the MIOSHA were not admissible. In finding that the MIOSHA regulations were inapplicable, the trial court succinctly stated, "We have a brother helping [a] brother without pay and that does not come within the purview of the...