Wilson v. BRK, Inc., 342449

CourtCourt of Appeal of Michigan (US)
Writing for the CourtMarkey, J.
Citation328 Mich.App. 505,938 N.W.2d 761
Decision Date30 May 2019
Docket NumberNo. 342449,342449
Parties Kristopher William Robert WILSON, Plaintiff-Appellant, v. BRK, INC., and R & C Land, Inc., d/b/a Diamondback Saloon, Defendants-Appellees.

328 Mich.App. 505
938 N.W.2d 761

Kristopher William Robert WILSON, Plaintiff-Appellant,
BRK, INC., and R & C Land, Inc., d/b/a Diamondback Saloon, Defendants-Appellees.

No. 342449

Court of Appeals of Michigan.

Submitted May 8, 2019, at Detroit
Decided May 30, 2019, 9:10 a.m.

Sachs Waldman, PC (by Brian A. McKenna ) for plaintiff.

Bredell & Bredell (by John H. Bredell ) for defendants.

Before: Redford, P.J., and Markey and K.F. Kelly, JJ.

Markey, J.

328 Mich.App. 508

Plaintiff, Kristopher Wilson, appeals by right the trial court’s order granting summary disposition in favor of defendants, BRK, Inc., and R & C Land, Inc. (both doing business as Diamondback Saloon), under MCR 2.116(C)(10) in this action arising out of plaintiff’s fall from a wheelchair when exiting defendants' bar. We reverse and remand for further proceedings.


Defendants' bar has a cement ramp that starts near handicapped parking spots, runs along the side of the

328 Mich.App. 509

building, and gradually slopes upward to a doorway, allowing access for physically limited patrons. The top of the ramp meets the top of a separate stairwell, both leading to a single set of doors into the bar. At the door’s threshold is a 3½-inch-tall, yellow-painted step that must be navigated by disabled and nondisabled customers alike. Plaintiff, who has partial quadriplegia, uses a wheelchair. After a visit to the bar one evening, he began to exit the establishment with a friend, who was pushing the wheelchair. As plaintiff went through the doorway and over the step, the wheelchair tipped forward, throwing plaintiff to the ground and causing injuries. Plaintiff had patronized the bar on three or four previous occasions, negotiating the step without incident with the assistance of friends.

Plaintiff filed suit against defendants. Plaintiff alleged that the entranceway step constituted a barrier in violation of federal, state, and local laws protecting individuals with disabilities. He further asserted that defendants were negligent and grossly negligent for failing to maintain the premises in a reasonably safe condition, failing to warn customers about the defect or hazard, and failing to replace the entranceway step with a ramp. Finally, plaintiff claimed that defendants had created a nuisance by allowing an inherently dangerous condition to exist, placing "those on the premises in a position of peril." Subsequently, defendants moved for summary disposition, arguing, in relevant part, that plaintiff’s action sounded in premises liability, not ordinary negligence or nuisance, that the entranceway step was open and obvious with no special aspects, that there was no code or regulatory violation, and that the open and obvious danger doctrine applied regardless of any regulatory or code violation.

328 Mich.App. 510

In his responsive brief, plaintiff argued that the bar’s entranceway as constructed with the step was not in compliance with MCL 125.1351 et seq. , which provides for the use of public facilities by the physically limited and requires barrier-free access. Plaintiff claimed that the open and obvious danger doctrine does not apply to a violation of a statutory duty and further maintained that the Stille-DeRossett-Hale Single State Construction Code Act (the SCCA), MCL 125.1501 et seq. , incorporated the Building Officials and Code Administrators International, Inc., Basic Building Code (the BOCA code) pursuant to

938 N.W.2d 764

MCL 125.1504(2) and that the BOCA code required, before the bar’s construction in 1977, that at least one entranceway to a public facility be accessible to individuals with disabilities. Additionally, plaintiff claimed that the Persons with Disabilities Civil Rights Act (the PDCRA), MCL 37.1101 et seq. , was implicated and violated.1 Plaintiff also contended that the step was effectively unavoidable because it was located at the only entrance/exit point available to a wheelchair-bound patron. Finally, plaintiff argued that some of his claims sounded in ordinary negligence and nuisance, not premises liability, and that the open and obvious danger doctrine does not apply to ordinary negligence and nuisance claims.

The trial court heard defendants' motion for summary disposition and took the matter under advisement. The court later issued a written opinion and order granting defendants summary disposition. The trial court ruled that the case sounded in premises liability, not ordinary negligence, that the step was open and

328 Mich.App. 511

obvious, that there were no special aspects of the step that would avoid application of the open and obvious danger doctrine, and that "[a]ny alleged violation of the building code ... does not negate the application of the open and obvious doctrine." The court also noted that there was no evidence that the entranceway step had ever been found to be in violation of a statute or building code. Indeed, the trial court explained that defendants presented undisputed evidence that the building had been inspected and approved by state and local authorities several times since its construction in 1977 and that it had never been cited for a violation. Plaintiff appeals by right.



"This Court reviews de novo a trial court's ruling on a motion for summary disposition." Loweke v. Ann Arbor Ceiling & Partition Co., LLC , 489 Mich. 157, 162, 809 N.W.2d 553 (2011). We also review de novo issues of statutory construction. Estes v. Titus , 481 Mich. 573, 578-579, 751 N.W.2d 493 (2008).


Plaintiff maintains that defendants engaged in ordinary negligence by directing physically limited invitees to use the entrance where a customer would be forced to encounter the 3½-inch step or threshold. Plaintiff states that the ramp, which defendants knew would be used for access to the business by individuals with physical limitations, leads directly to the problematic entranceway.2

328 Mich.App. 512

"It is well settled that the gravamen of an action is determined by reading the complaint as a whole, and by looking beyond mere procedural labels to determine the exact nature of the claim." Adams v. Adams (On Reconsideration) , 276 Mich. App. 704, 710-711, 742 N.W.2d 399 (2007). "Michigan law distinguishes between claims arising from ordinary negligence and claims premised on a condition of the land."

938 N.W.2d 765

Buhalis v. Trinity Continuing Care Servs. , 296 Mich. App. 685, 692, 822 N.W.2d 254 (2012). "If the plaintiff's injury arose from an allegedly dangerous condition on the land, the action sounds in premises liability rather than ordinary negligence; this is true even when the plaintiff alleges that the premises possessor created the condition giving rise to the plaintiff's injury." Id. ; see also Compau v. Pioneer Resource Co., LLC , 498 Mich. 928, 871 N.W.2d 210 (2015). The open and obvious danger doctrine is inapplicable to a claim of ordinary negligence. Laier v. Kitchen , 266 Mich. App. 482, 484, 702 N.W.2d 199 (2005). "A plaintiff cannot avoid the open and obvious danger doctrine by claiming ordinary negligence, when the facts only support a premises liability claim[.]" Jahnke v. Allen , 308 Mich. App. 472, 476, 865 N.W.2d 49 (2014).

Plaintiff’s lawsuit ultimately concerns an injury arising from an allegedly dangerous condition on the land, i.e., a step that must be navigated by physically limited patrons in order to enter and exit the bar. Plaintiff’s effort to frame a portion of his complaint as alleging ordinary negligence is strained. Plaintiff is essentially arguing that defendants created the dangerous condition by directing customers with disabilities to use the step. This characterization, however, does not suffice to defeat the fact that this is a premises liability action. See Buhalis , 296 Mich. App. at 692, 822 N.W.2d 254. The trial court did not err by ruling that the portions of the complaint that

328 Mich.App. 513

plaintiff asserts sound in ordinary negligence actually sound in premises liability.


Plaintiff next contends that the entranceway step, which constituted a barrier to invitees using a wheelchair, was effectively unavoidable because the doorway was the only one that a wheelchair user could use to exit the establishment.

An exception to the circumscribed duty owed for open and obvious dangers arises when special aspects of a condition make even an open and obvious risk unreasonable. Hoffner v. Lanctoe , 492 Mich. 450, 461, 821 N.W.2d 88 (2012).3 Special aspects exist when an open and obvious hazard remains unreasonably dangerous or when it is effectively unavoidable. Id. at 461-463, 821 N.W.2d 88. The Hoffner Court further explained:

[W]hen confronted with an issue concerning an open and obvious hazard, Michigan

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