Maurer v. Oakland County Parks and Recreation Dept.

• Decision Date: 16 August 1993
• Docket Number: Docket No. 163080
• Parties: Kathleen MAURER and Roger Maurer, Plaintiffs-Appellants, v. OAKLAND COUNTY PARKS AND RECREATION DEPARTMENT, Defendant-Appellee. (On Remand)
• Court: Court of Appeal of Michigan — District of US

Page 261

506 N.W.2d 261

201 Mich.App. 223

Kathleen MAURER and Roger Maurer, Plaintiffs-Appellants, v. OAKLAND COUNTY PARKS AND RECREATION DEPARTMENT Defendant-Appellee. (On Remand)

Docket No. 163080.

Court of Appeals of Michigan.

Submitted April 7, 1993, at Lansing.

Decided Aug. 16, 1993, at 9:45 a.m.

Released for Publication Oct. 19, 1993.

Lakin, Worsham & Victor, P.C. by Lori A. Young-Barker and Larry A. Smith, Southfield, for plaintiffs.

Vandeveer Garzia by John J. Lynch and David B. Timmis, Birmingham, for defendant.

Before MURPHY, P.J., and SHEPHERD and SAWYER, JJ.

ON REMAND

SHEPHERD, Judge.

This case is before us on remand by order of the Supreme Court for consideration as on rehearing granted. 442 Mich. 882, 500 N.W.2d 477 (1993). Plaintiffs initially appealed from an order of the circuit court granting summary disposition in favor of defendant pursuant to MCR 2.116(C)(10). We reversed and remanded for a trial or other proceedings in an unpublished opinion per curiam, decided August 11, 1992 (Docket No. 133237). Thereafter, defendant filed an application for leave to appeal to the Supreme Court.

In lieu of granting leave to appeal, the Supreme Court remanded to the Court of Appeals for consideration as on rehearing granted. The Supreme Court instructed us to reconsider on remand our decision that summary disposition was inappropriate with respect to the question of defendant's duty to plaintiffs in light of the Supreme Court's decisions in Riddle v. McLouth Steel Products Corp, 440 Mich. 85, 485 N.W.2d 676 (1992), and Wade v. Dep't of Corrections, 439 Mich. 158, 483 N.W.2d 26 (1992). If we again conclude on remand that the trial court erred in granting summary disposition in favor of defendant with respect to the duty issue under MCR 2.116(C)(10), the Court directed us to address defendant's governmental immunity argument as an alternative ground for affirmance of the trial court's decision under MCR 2.116(C)(7).

In this case, plaintiffs claimed that defendant was negligent in failing to mark, or otherwise warn of, a cement step that caused Kathleen Maurer (hereafter plaintiff) to fall as she left a washroom at defendant's park.

In Riddle, supra, the Supreme Court held that possessors of land do not have a duty to warn invitees of open and obvious dangers unless the invitor anticipated the harm despite the invitee's knowledge of it. In Novotney v. Burger King Corp (On Remand), 198 Mich.App. 470, 474-475, 499 N.W.2d 379 (1993), this Court stated that whether a danger is open and obvious depends upon whether it is reasonable to expect that an average user with ordinary intelligence would have discovered the danger upon casual inspection.

After a careful review of Kathleen Maurer's deposition testimony and the photographs of the entrance to the restrooms submitted by plaintiffs, we conclude that summary disposition was improper on the ground that defendant owed no duty to plaintiffs, because there exists a genuine issue of material fact whether the danger posed by the steps could have been discovered upon casual inspection by a reasonable person in plaintiff's position. See Radtke v. Everett, 442 Mich. 368, 385-394, 501 N.W.2d 155 (1993), where the Court, after discussing the reasonable person standard, defined an objective reasonableness standard in a case involving a hostile work environment as pertaining to a reasonable person in the plaintiff's position.

As the photographs show, plaintiff had to step up and down three steps in order to enter and leave the building containing the restrooms and a concession stand. After the first step, which was approximately seven inches higher than the sidewalk leading to the building, there was an elevated walkway leading to the second step. After the second step, there was another elevated walkway, where there was a refuse bin and a public telephone booth. Access to the building was gained by stepping up a third and final step. We note that these three steps are not normal steps, as in a conventional staircase, but are separated by two elevated walkways.

Plaintiff testified that after leaving the darker restroom and encountering the bright, glaring sun, she did not see that the walkway's elevation had changed between the second and first steps. As a result, plaintiff fell when, without any kind of warning, she encountered the seven-inch dropoff.

Giving the benefit of reasonable doubt to plaintiffs, we believe that there exists a genuine issue of material fact whether the danger presented could have been discovered upon casual inspection by a reasonable person in plaintiff's position. We note that it is quite normal not to pay attention or think about the nature of steps going into a restroom, particularly where the steps are separated by two elevated walkways. Here plaintiff entered the restroom while accompanying her two children. She stated that, when she came out of the darker restroom into the bright sunlight, she did not see the change in elevation between the first and second steps leading to the building. As the photographs taken from inside the restroom building show, there is the impression that the entire area is flat. In view of the deposition testimony and the photographs, summary disposition in favor of defendant with respect to the issue of duty was thus not proper because reasonable minds could differ regarding whether the danger presented by the steps was so open and obvious that an invitee in plaintiff's position might reasonably be expected to discover it.

In addition, summary disposition in favor of defendant would also be improper on the ground of governmental immunity. M.C.L. § 691.1407; M.S.A. § 3.996(107).

MCR 2.116(C)(7) tests whether a claim is barred by governmental immunity, and requires consideration of all documentary evidence filed or submitted by the parties. MCR 2.116(G)(5); Wade, supra, 439 Mich. p. 162, 483 N.W.2d 26. All well-pleaded allegations are accepted as true and construed most favorably to the nonmoving party under this subrule. Id., pp. 162-163, 483 N.W.2d 26. Governmental immunity is an affirmative defense that must be stated in the party's responsive pleading. Id., p. 163, 483 N.W.2d 26. To survive a motion for summary disposition, the plaintiff must allege facts warranting the application of an exception to governmental immunity. Id.

Plaintiffs allege that defendant is not shielded from liability for its alleged negligence by governmental immunity. Plaintiffs state that under M.C.L. § 691.1406; M.S.A. § 3.996(106), governmental agencies are responsible for the repair and maintenance of public buildings under their control. As provided by this section:

Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had ... knowledge of the defect and ... failed to remedy the condition or to take action reasonably necessary to protect the public against the condition.

In Wade, supra, p. 163, 483 N.W.2d 26, the Court reviewed Michigan case law regarding the public building exception to governmental immunity under M.C.L. § 691.1406; M.S.A. § 3.996(106). The Court noted that in Reardon v. Dep't of Mental Health, 430 Mich. 398, 424 N.W.2d 248 (1988), it had held:

The duty to repair and maintain relates to the structural condition of the...