Spagnuolo v. Rudds No. 2, Inc., Docket No. 191341

• Court: Court of Appeal of Michigan (US)
• Citation: 561 N.W.2d 500,221 Mich.App. 358
• Docket Number: Docket No. 191341
• Parties: , 9 NDLR P 178 Barbara A. SPAGNUOLO, Plaintiff-Appellant, v. RUDDS #2, INC., doing business as "McDonald's" in East Lansing, Defendant-Appellee.
• Decision Date: 04 February 1997

Page 500

561 N.W.2d 500 221 Mich.App. 358, 9 NDLR P 178 Barbara A. SPAGNUOLO, Plaintiff-Appellant,
v.
RUDDS #2, INC., doing business as "McDonald's" in East
Lansing, Defendant-Appellee. Docket No. 191341. Court of Appeals of Michigan. Submitted Jan. 8, 1997, at Lansing.
Decided Feb. 4, 1997, at 9:05 a.m.
Released for Publication April 9, 1997.

Page 501

[221 Mich.App. 359] Dunnings and Frawley, P.C. by John J. Frawley, Lansing, for plaintiff-appellant.

Foster, Swift, Collins & Smith, P.C. by William R. Schulz, Lansing, for defendant-appellee.

Before MARKMAN, P.J., and O'CONNELL and D.J. KELLY, ^* JJ.

PER CURIAM.

Plaintiff appeals as of right a trial court order granting defendant's motion for summary disposition. Plaintiff, who at the time used a wheelchair, fell while attempting to maneuver her wheelchair around a trash barrel located on a sidewalk immediately adjacent to defendant's fast-food restaurant. Plaintiff filed an action alleging both common-law negligence and a violation of the Michigan Handicappers' Civil Rights Act (HCRA), M.C.L. § 37.1101 et seq.; M.S.A. § 3.550(101) et seq. The trial court granted defendant's motion for summary disposition of the first count pursuant to MCR 2.116(C)(10) and of the second count pursuant to MCR 2.116(C)(8). We affirm.

[221 Mich.App. 360] Plaintiff testified that she left defendant's restaurant through its west door and proceeded to wheel herself in a southerly direction down the sidewalk running adjacent to the west side of the building. The sidewalk was elevated a few inches above the level of the adjacent parking lot. After wheeling approximately eight feet, plaintiff approached a trash barrel positioned directly in front of her on the sidewalk and against the west wall of the building. Plaintiff testified that she "recognized it was going to be at best, a tight squeeze" for her to get her wheelchair by the trash barrel and still remain on the sidewalk. However, plaintiff did not reenter the building through the west door and proceed out the east door through which she had successfully entered. Instead, she attempted to negotiate her wheelchair past the trash barrel. The right, large wheel of her chair slipped off the sidewalk onto the adjacent parking area and her chair tumbled over onto its right side, resulting in injuries to plaintiff.

Plaintiff first argues that the trial court erred in granting summary disposition of her common-law negligence claim. She maintains that a genuine issue of material fact existed whether, given the position of defendant's trash barrel on the elevated sidewalk, an unreasonable risk of harm was created to the average user. The Supreme Court recently clarified the rule of premises liability in Bertrand v. Alan Ford, Inc., 449 Mich. 606, 537 N.W.2d 185 (1995). In Bertrand, the Supreme Court established that the risk of harm from steps is presumptively reasonable. Id. at 616-617, 537 N.W.2d 185. Only when there is something "unusual" about the "character, location, or surrounding conditions" of steps does the duty of a premises owner to exercise reasonable [221 Mich.App. 361] care come...