Singerman v. Municipal Service Bureau, Inc.

Citation565 N.W.2d 383,455 Mich. 135
Decision Date15 July 1997
Docket NumberDocket Nos. 103715,103716,No. 11,11
CourtSupreme Court of Michigan
PartiesGary SINGERMAN, Plaintiff-Appellee, v. MUNICIPAL SERVICE BUREAU, INC., Defendant-Appellant. Gary SINGERMAN, Plaintiff-Appellee, v. Tamara Lynn McKINSTRY, Cindy Blayle, Individually and Jointly and Severally, Defendant-Appellants, and City of Westland, and Westland Sports Arena, Defendants. Calendar

William Dobreff, Warren, for plaintiff-appellee.

Cummings, McClorey, Davis & Acho, P.C. by Anne M. McClorey McLaughlin, Livonia, for defendants-appellants.

OPINION

WEAVER, Justice.

While on the ice hockey rink at the Westland Sports Arena, plaintiff Gary Singerman was hit in the eye by a hockey puck and sustained severe damage. The questions presented are whether the possessor of land can be held liable to a business invitee for inadequate lighting despite the open and obvious nature of the danger, and whether the defendants can be held liable when they did not enforce the rules requiring that a helmet be worn, even though a helmet would not have prevented the injury. We would reverse the decision of the Court of Appeals and would reinstate the trial court's orders granting summary disposition in favor of defendants.

I

On August 1, 1989, plaintiff joined a group of people who were playing pick-up hockey. Joseph Eller had rented the ice rink at Westland Sports Arena for a preseason skate-around. Mr. Eller had invited plaintiff to join in when he met him at an airport the day before. Plaintiff is an experienced hockey player, and had been a member of the coaching staff of Eastern Michigan University Hockey Club the previous season. However, it is unclear from the record whether plaintiff was to be a participant in the game or an observer on the ice. Plaintiff testified that he went to the sports arena as a coach to observe the players who either had been members of the Eastern Michigan University Hockey Club or had aspirations of joining the team.

Plaintiff went onto the ice wearing no protective equipment. Plaintiff testified that he was passing pucks back and forth to the players while warming up. When the other players broke into a full-ice scrimmage, plaintiff was leaning on the goalie net at one end. When the scrimmage moved toward his end, plaintiff attempted to move out of the way, to the side of the goal. Plaintiff testified that he saw a player take the shot that hit him, but that due to poor lighting, he was unable to react as he normally would and avoid the puck that struck him.

Plaintiff filed suit against the City of Westland, Westland Sports Arena, Tamara McKinstry (manager of the sports arena), Cindy Blayle (assistant manager of the sports arena), and Municipal Service Bureau, Inc. (an agency created by the City of Westland to operate the sports arena). All defendants filed motions for summary disposition, which the trial court granted. 1 Plaintiff appealed from the orders granting summary disposition in favor of McKinstry, Blayle, and Municipal Services Bureau, Inc., but not from the orders in favor of the City of Westland and the Westland Sports Arena. The Court of Appeals reversed the trial court's grant of summary disposition and remanded the case for further proceedings against these three defendants. 211 Mich.App. 678, 536 N.W.2d 547 (1995).

This Court granted defendants leave to appeal. 453 Mich. 949 (1996). We now reverse the decision of the Court of Appeals and reinstate the circuit court's orders of summary disposition in favor of defendants.

II

Appellate review of a motion for summary disposition is de novo. A motion for summary disposition brought under MCR 2.116(C)(8) tests the legal sufficiency of a claim and is tested on the pleadings alone. All factual allegations must be taken as pleaded, as well as any reasonable inferences that may be drawn therefrom. Lepp v. Cheboygan Area Schools, 190 Mich.App. 726, 728, 476 N.W.2d 506 (1991). The motion must be granted if no factual development could justify the plaintiff's claim for relief. A motion brought under MCR 2.116(C)(10) tests the factual support for a claim. In ruling on the motion, the court must consider the pleadings, affidavits, depositions, and other documentary evidence submitted by the parties. Zeniuk v. RKA, Inc., 189 Mich.App. 33, 36, 472 N.W.2d 23 (1991). The test is whether the kind of record that might be developed will leave open an issue upon which reasonable minds might differ.

III

Plaintiff's claims in tort are based on his status as a business invitee. "In the ordinary case, an invitee who enters land is entitled to nothing more than knowledge of the conditions and dangers he will encounter if he comes." 2 Restatement Torts, 2d, § 343 A, comment e, p. 219.

In Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 418 N.W.2d 381 (1988), this Court held that owners and occupiers of land are in a special relationship with their invitees. The possessor of land has a duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land. A business invitor or merchant may be held liable for injuries resulting from negligent maintenance of the premises or defects in the physical structure of the building. However, the Court recognized that this duty is not absolute, and that the duty does not extend to conditions from which an unreasonable risk cannot be anticipated or to dangers so obvious and apparent that an invitee may be expected to discover them himself. Williams, supra at 499-500, 418 N.W.2d 381.

In Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 96, 485 N.W.2d 676 (1992), this Court again recognized the open and obvious danger exception to a premises owner's duty to exercise due care to protect a business invitee from dangerous conditions

where the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, an invitor owes no duty to protect or warn the invitee....

The Court went on to say that "[i]f the conditions are known or obvious to the invitee, the premises owner may nonetheless be required to exercise reasonable care to protect the invitee from the danger." Id. at 97, 485 N.W.2d 676. As an exception to an exception, clearly this rule must remain narrowly drawn and be applied with restraint.

In Bertrand v. Alan Ford, Inc., 449 Mich. 606, 537 N.W.2d 185 (1995), this Court found that the plaintiff could pursue her case against a car dealer for injury caused by a fall from steps in the dealer's service area. Despite the open and obvious nature of the danger normally presented by steps, the Court said that there were special aspects of those particular steps which were sufficiently unique that the risk of harm remained unreasonable.

A

In the instant case, plaintiff first alleges that there was inadequate lighting in the arena as a result of both insufficient maintenance and improper design. Plaintiff claims that his injury resulted from this inadequate lighting because he was not able to see and avoid the puck.

For the purposes of the motions for summary disposition, it is undisputed that plaintiff was an invitee, that the lack of proper lighting was a hazardous condition, and that the poor lighting was an open and obvious danger which the invitee might reasonably be expected to discover. Thus, the only issue presented is whether the defendants should anticipate the harm despite plaintiff's knowledge of the hazardous condition. Riddle v. McLouth Steel Products, supra.

In this case, the Court of Appeals held that, although the dangerous condition was open and obvious, defendants had a duty to exercise due care where the injury is foreseeable despite the open and obvious nature of the danger. 2 The panel then held that there was a genuine issue of material fact concerning the foreseeability of the harm:

In this case there was evidence that defendants should have foreseen the harm to plaintiff despite the fact that the condition of the lighting constituted an open and obvious danger. There was deposition testimony indicating that defendants were aware that hockey is a potentially dangerous sport, especially with inexperienced players, such as the ones playing with plaintiff. In fact, one of the safety rules of the rink was that helmets must be worn by all hockey players. Although defendants Blayle and McKinstry may not have seen plaintiff on the ice without a helmet until it was too late, they should anticipate that patrons will not follow the safety rules and that the patrons are in danger if the lighting is not adequately maintained. We find that the trial court erred in granting summary disposition for defendants because there were disputed issues of material fact concerning the foreseeability of the injury. MCR 2.116(C)(10). [Id. at 682.]

We disagree with the panel's reasoning in this matter. 3 The Court of Appeals incorrectly held that defendants owed a duty to plaintiff because the harm was foreseeable, despite the open and obvious nature of the hazard. The question is not the foreseeability of harm. Rather the question for the courts to decide is whether the risk of harm remains unreasonable, despite its obviousness or despite the invitee's knowledge of the danger. If the court finds that the risk is still unreasonable, then the court will consider whether the circumstances are such that the invitor is required to undertake reasonable precautions. If so, then the issue becomes the standard of care and is for the jury to decide. See Bertrand, supra at 611, 537 N.W.2d 185.

In Bertrand, the plaintiff was injured when she fell backward off a step after holding the door open for other customers to pass from the lounge area of the car dealership to the service area. This Court found that there was a genuine issue whether the construction of the step, when considered with the placement of the vending machines and the...

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