Joyce v. Rubin, Docket No. 223908.
| Decision Date | 04 April 2002 |
| Docket Number | Docket No. 223908. |
| Citation | 642 N.W.2d 360,249 Mich. App. 231 |
| Parties | Valary A. JOYCE, Plaintiff-Appellant, v. Barry RUBIN, Bare Snow & Landscaping and Larry Garlinghouse, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Worsham, Victor & Ahmad, P.C. (by Howard Victor), Southfield, for Valary A. Joyce.
Cory & Wesley (by Paul R. Knight), Troy, for Barry Rubin.
Sarvis & Herrmann, P.C. (by Thomas G. Herrmann), Bingham Farms, for Bare Snow & Landscaping and Larry Garlinghouse.
Before: BANDSTRA, C.J., and SAAD, P.J., and WHITBECK, J.
Plaintiff appeals as of right from the trial court's orders granting summary disposition to defendants, Barry Rubin, Bare Snow and Landscaping (Bare Snow), and Larry Garlinghouse. We affirm.
Barry Rubin and his wife Debra hired Valary Joyce about July 12, 1997, as a livein caregiver for their mentally impaired daughter. Joyce lived and worked at the Rubins' home in West Bloomfield until March 1998, when she left to work as a mortgage banker. On March 10, 1998, as Joyce was removing her personal belongings from the Rubins' home, she fell on the sidewalk leading to the Rubins' front door.
On October 29, 1998, Joyce filed a complaint against Barry Rubin, alleging that he insisted she move on March 10, despite her reluctance because of snowy weather, and that he breached his duty to maintain safe premises and did nothing to alleviate the dangerous, snowy conditions that caused her fall. On February 1, 1999, Joyce amended her complaint to add a claim against Bare Snow and Garlinghouse, who contracted with Barry Rubin to remove snow from his driveway. Joyce claimed that her injury occurred because Bare Snow and Garlinghouse negligently failed to perform under their contract with Barry Rubin to shovel snow and salt the sidewalk on March 10.
Barry Rubin, Bare Snow, and Garlinghouse filed motions for summary disposition under MCR 2.116(C)(10). Following oral argument, the trial court granted the motions. The trial court ruled that (1) there was no genuine issue of material fact regarding Joyce's knowledge of the condition of the walkway, (2) the condition was open and obvious, and (3) the risk of harm was not unreasonably dangerous. The court further ruled that, though Bare Snow and Garlinghouse owed Joyce a common-law duty of ordinary care in performing their contract with Barry Rubin, there was no genuine issue of material fact regarding a breach of a duty owed under the contract that would give rise to a breach of a duty of due care.
This Court reviews de novo decisions on motions for summary disposition. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). As our Supreme Court said in Maiden v. Rozwood, 461 Mich. 109, 120, 597 N.W.2d 817 (1999):
A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10), (G)(4). Quinto v. Cross & Peters Co., 451 Mich. 358, 547 N.W.2d 314 (1996).
Joyce contends that the trial court erred in applying the open and obvious danger doctrine to this case because she claims that Barry Rubin failed to make the unreasonably dangerous condition safe and because she does not claim that Barry Rubin failed to warn of a dangerous condition.
Joyce cites Walker v. Flint, 213 Mich.App. 18, 539 N.W.2d 535 (1995), to support her argument that "[t]he defense of open and obvious danger relates to a claim of a duty to warn, but will not exonerate a defendant from liability where the claim is one of a duty to maintain and repair the premises." Id. at 22, 539 N.W.2d 535. In Walker, our Court concluded that, because the plaintiff's theory of liability was based on the highway exception to governmental immunity, a statutory duty, rather than on a duty to warn, the open and obvious danger doctrine did not apply. Id. at 21, 539 N.W.2d 535.
This Court later addressed a similar issue in Haas v. Ionia, 214 Mich.App. 361, 364, n. 3, 543 N.W.2d 21 (1995). In Haas, the plaintiff admitted that she knew about the condition of a grossly defective sidewalk in the city of Ionia before she tripped and fell on it. Id. at 362, 543 N.W.2d 21. On appeal, this Court criticized the Walker Court's assertion that the open and obvious danger doctrine applies only to duty to warn cases and, citing Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 485 N.W.2d 676 (1992), suggested that the statement is inconsistent with prior case law. Haas, supra at 364, n. 3, 543 N.W.2d 21. However, the Haas Court declined to revisit the analysis, concluding instead, consistent with Walker, that because the city's duty to maintain sidewalks is imposed by statute, the city may not rely on the open and obvious danger rule as a defense. Id. at 362-363, 364, n. 3, 543 N.W.2d 21.
Since Walker and Haas, this Court has specifically rejected the argument made here by Joyce that the open and obvious danger doctrine applies only to claims of failure to warn and not to claims of failure to maintain premises. Millikin v. Walton Manor Mobile Home Park, Inc., 234 Mich.App. 490, 491, 495, 595 N.W.2d 152 (1999). Joyce contends, however, that Millikin was wrongly decided, that it is contrary to Bertrand v. Alan Ford, Inc., 449 Mich. 606, 537 N.W.2d 185 (1995), and that it ignores other, well-established case law, including Walker.
Joyce is wrong for several reasons. Joyce's argument is undermined by the fact that the Millikin Court actually relied on Bertrand and asserted that its conclusion is consistent with Bertrand. First, as Haas made clear, there are reasons specific to the sidewalk statute that make the open and obvious danger doctrine inapplicable in that type of case. Haas, supra at 363-364, 543 N.W.2d 21. Because this is not such a case, Walker and Haas are not applicable here. Further, like Walker, the Millikin Court observed that our Supreme Court held in Riddle that an invitor does not owe a duty to warn or to protect an invitee from "`dangers that are so obvious and apparent that an invitee may be expected to discover them himself.'" Millikin, supra at 494, 595 N.W.2d 152, quoting Riddle, supra at 94, 485 N.W.2d 676. See also the Millikin Court's reliance on Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 418 N.W.2d 381 (1988), and 2 Restatement Torts, 2d, § 343A(1). Millikin, supra at 494-495, 595 N.W.2d 152. The Millikin Court further observed that the Bertrand Court "did nothing to suggest that the doctrine was limited to harms caused by a failure to warn but, instead, noted its application to harms `caused by a dangerous condition of the land' or `any activity or condition on the land.'" Millikin, supra at 496, 595 N.W.2d 152, quoting Bertrand, supra at 609-610, 537 N.W.2d 185.
We find that Millikin is consistent with Riddle and Bertrand, particularly in light of the specific language in those decisions that the open and obvious danger doctrine applies to claims relating to a duty to warn or duty to protect from a condition on the land. Moreover, in Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 516, 629 N.W.2d 384 (2001), our Supreme Court recently used language reflecting the general understanding that the duty to protect from dangers "does not generally encompass removal of open and obvious dangers."
For these reasons, we reject Joyce's argument and instead hold that the open and obvious danger 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.
Joyce contends that the trial court erred in granting summary disposition to Barry Rubin because genuine issues of material fact exist regarding the condition of the sidewalk and whether the condition was open and obvious. Though this is a much closer question, we again reject Joyce's argument.
Joyce alleges in her complaint that Barry Rubin's negligent failure to remove ice and snow from his sidewalk caused her slip and fall accident. "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." Lugo, supra at 516, 629 N.W.2d 384, citing Bertrand, supra at 609, 537 N.W.2d 185. However, "this duty does not generally encompass removal of open and obvious dangers." Lugo, supra at 516, 629 N.W.2d 384. Open and obvious dangers exist "where the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them...." Riddle, supra at 96, 485 N.W.2d 676. Regarding open and obvious dangers, "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. As our Supreme Court clarified in Lugo, "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 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...
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