BETH O'DONNELL V CHARLES B GARASIC
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
BETH O'DONNELL,
FOR PUBLICATION
December 9, 2003
9:05 a.m.
Plaintiff-Appellant,
v
No. 241341
Berrien Circuit Court
LC No. 00-004044-NZ
CHARLES B. GARASIC and ELIZABETH
THOMAS-GARASIC,
Defendant-Appellee.
Updated Copy
February 13, 2004
Before: Whitbeck, C.J., and Zahra and Donofrio, JJ.
DONOFRIO, J.
Plaintiff appeals as of right the trial court's grant of summary disposition in favor of
defendants in this premises liability action. Plaintiff was injured when she fell down a flight of
stairs as she attempted to traverse them in the dark while spending the night at defendants' inn.
Plaintiff argues that defects in the stairs, stairway, and loft were not open and obvious, that there
were "special aspects" of the condition that created an unreasonable risk of harm, that defendants
violated standards of the Building Officials & Code Administrators International, Inc. (BOCA),
and that the premises were not fit for the purposes intended. After reviewing the record we find
the dangers associated with the stairs, staircase, and loft were open and obvious. But we find
that the panoply of inadequacies in the aggregate, coupled with the necessary use of the stairs,
stairway, and loft in their dangerous state, constitutes special aspects creating an issue of fact for
the jury regarding whether the risk of harm was unreasonable. Plaintiff introduced alleged
BOCA code violations to be considered as both special aspects for avoidance of the open and
obvious danger doctrine and as support for the proposition that the rented premises were unfit for
the purposes intended. The specific statutory duty imposed upon defendants by MCL
554.139(1)(a) and (b) preempts the application of the open and obvious danger doctrine at the
summary disposition stage to defeat plaintiff 's liability claim predicated on defective residential
premises. The grant of summary disposition for defendants was therefore inappropriate. We
reverse and remand.
FACTS
Plaintiff and her friends rented a resort cabin owned by defendants. Plaintiff and other
women stayed in a cabin where one of the beds was in a sleeping loft that had a low ceiling
preventing adults from standing erect. The sleeping loft looked over the main floor of the cabin,
-1-
and had a guardrail enclosing most of the open side of the loft. In between the guardrail and a
wall was an opening where a set of narrow stairs connected the main floor to the loft. There was
an upright pillar demarcating the end of the guardrail. The width of the stairs was narrower than
the opening accommodating the stairway leaving an unguarded space at the edge of the stairs or
stringer adjacent to the upright pillar. A tree branch was attached to the wall serving as a railing
on one side of the stairs. The other side of the stairs was open from where it met the loft and
extended to the last step at the floor. The loft was equipped with a light above the stairs that was
activated by a downstairs switch. There was no matching light switch at the top of the stairs.
There was a lamp located next to the bed in the loft.
After an evening spent in the cabin, when plaintiff was ready to retire to bed, she
ascended the stairs to the loft and crawled into bed. The staircase was illuminated as she climbed
the stairs. Once plaintiff got into bed, her roommate turned the bedside lamp off. A few hours
later plaintiff awoke to use the bathroom. The overhead light had been switched off and the
cabin was dark. Plaintiff got up, did not turn the bedside lamp on, and walked toward the stairs
in the dark in a hunched-over fashion. Plaintiff reached the stairway opening and put her left
hand on the wall and her right hand on an upright pillar that marked the edge of the loft
guardrail. She then stepped down with her left foot onto the first step, searched for the second
step with her right foot, but stepped into space and fell to the floor. She suffered serious injury.
STANDARD OF REVIEW
"A trial court's grant or denial of summary disposition under MCR 2.116(C)(10) is
reviewed de novo on appeal." Liberty Mut Ins Co v Michigan Catastrophic Claims Ass'n, 248
Mich App 35, 40; 638 NW2d 155 (2001). "A motion for summary disposition under MCR
2.116(C)(10) tests whether there is factual support for a claim." Universal Underwriters Group
v Allstate Ins Co, 246 Mich App 713, 720; 635 NW2d 52 (2001). "Affidavits, pleadings,
depositions, admissions, and documentary evidence are considered in reviewing a motion for
summary disposition pursuant to MCR 2.116(C)(10), and the evidence is viewed 'in the light
most favorable to the party opposing the motion.'" Universal Underwriters, supra at 720,
quoting Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). "Summary
disposition is proper under MCR 2.116(C)(10) if the documentary evidence shows that there is
no genuine issue of material fact, and the moving party is entitled to judgment as a matter of
law." Universal Underwriters, supra at 720.
ANALYSIS
To establish a prima facie case of negligence, a plaintiff must prove four elements: (1) a
duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4)
damages. Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). "The duty that a
possessor of land owes to another person who is on the land depends on the latter person's
status." Hampton v Waste Mgt of Michigan, Inc, 236 Mich App 598, 603; 601 NW2d 172
(1999). "The status of a person on land that the person does not possess will be one of the
following: (1) a trespasser, (2) a licensee, or (3) an invitee." Id. An invitee is one who enters
the land of another for a commercial purpose on an invitation that carries with it an implication
that reasonable care has been used to prepare the premises and to make them safe. Stitt v
Holland Abundant Life Fellowship, 462 Mich 591, 596-597; 614 NW2d 88 (2000).
-2-
Here, plaintiff was an invitee because she was on defendants' premises for a commercial
purpose. "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 v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). "With the
axiom being that the duty is to protect invitees from unreasonable risks of harm, the underlying
principle is that even though invitors have a duty to exercise reasonable care in protecting their
invitees, they are not absolute insurers of the safety of their invitees." Bertrand v Alan Ford, Inc,
449 Mich 606, 614; 537 NW2d 185 (1995). The duty does not generally encompass removal of
open and obvious dangers. Lugo, supra at 516. A condition is open and obvious if it is
reasonable to expect an average person of ordinary intelligence to discover the danger upon
casual inspection. Hughes v PMG Bldg, Inc, 227 Mich App 1, 10; 574 NW2d 691 (1997).
"[O]nly those special aspects that give rise to a uniquely high likelihood of harm or severity of
harm if the risk is not avoided will serve to remove that condition from the open and obvious
danger doctrine." Lugo, supra at 519. The Lugo Court illustrated that special aspects of a
condition would include an unguarded thirty-foot-deep pit in the middle of a parking lot and
standing water at the only exit of a commercial building resulting in an unavoidable condition
because no alternative route is available. Id. at 518, 520.
I
Plaintiff argues that the defects in the stairs were not open and obvious because inn
patrons would not be able to see them as they moved from the loft level to the main floor using
the only staircase in the dark. The trial court found as follows on this issue:
The Plaintiff knew of the condition prior to going up there that night. She
had walked up it. She was aware that there was not the desired dual light switch,
and so that she was aware that unless she turned on the light next to her or the
light was left on from below that there would not be light on the stairway. So I
think Plaintiff loses on the question of open and obvious.
As noted above, the test here is an objective one. A condition is open and obvious if it is
reasonable to expect an average person of ordinary intelligence to discover the danger upon
casual inspection. Hughes, supra at 10.
We find that an average person of ordinary intelligence would notice upon casual
inspection the overall layout of the stairway, including the narrow and steep stairs, their
relationship to the low-ceilinged loft, the open, unguarded area between the loft guardrail and the
edge of the steps, the open-sided staircase, the limited tree branch fashioned into a handrail, and
the lack of a light switch at the top of the stairs. Plaintiff 's argument that these dangers were
unknown to her because of the darkness is not persuasive. Plaintiff viewed the stairs and the loft
when she was on the main floor of the cabin earlier in the evening when the overhead light was
illuminated, and plaintiff traversed the stairs when she retired to bed. Plaintiff had ample
opportunity to take note of the apparent dangers.
Plaintiff admits that even in the dark she knew the location of the stairway because she
was safely able to find her way to the stairs, locate the wall with her left hand, locate the pillar
from the guard rail with her right hand, and locate the first step of the stairway with her left foot.
-3-
Our review of the record reveals that reasonable minds could not differ regarding the open and
obvious risk associated with the stairs, stairway, and loft. The stairs, stairway, and loft at issue
presented a condition that, upon casual inspection, an average person of ordinary intelligence
would discover any associated danger.
II
Plaintiff next argues that a genuine issue of material fact exists regarding whether the
dangers associated with the use of the stairs, loft, and stairway had "special aspects" that
differentiated the risks from typical open and obvious conditions, thereby creating an issue of
fact for the jury regarding whether the risk of harm was unreasonable. Plaintiff alleges that the
height and steepness of the stairs, the layout of the low-ceilinged loft, including the opening
between the guardrail and the stair tread, open-sided staircase, inadequate stair rail, and lack of a
light switch at the top of the stairs, when considered together, are special aspects giving rise to a
uniquely high likelihood of harm from falling to the hardwood floor below, and therefore remove
the condition from the open and obvious danger doctrine. We agree.
In support of her argument, plaintiff relies heavily on Woodbury v Bruckner (On
Remand), 248 Mich App 684; 650 NW2d 343 (2001). In Woodbury, the plaintiff sustained
injuries after she fell from a rooftop porch outside her second-floor apartment. This Court held
that the rooftop porch, which did not have guardrails, possessed special aspects differentiating its
risk from typical open and obvious conditions and therefore created an issue of fact regarding
whether a risk of harm was unreasonable. The Woodbury Court, after applying Lugo, supra,
stated:
"In view of the absence of guardrails, the height of the roof-top porch, and
the inherent dangerousness of the condition, we conclude that a genuine issue of
fact exists as to whether the risk of plaintiff falling from the roof remained
unreasonable."
For these reasons, we hold that there are sufficient "special aspects"
inherent in the unguarded rooftop porch to permit a jury to find the condition to
be unreasonably dangerous despite being open and obvious. [Id. at 694, quoting
the prior unpublished opinion per curiam of the Court of Appeals in that matter.]
We find Woodbury instructive. In Woodbury, the second-story rooftop porch was
completely unguarded. The plaintiff stepped out onto the rooftop porch. As she was shaking out
rugs, she lost her balance and fell to the ground, suffering severe injuries. Id. at 686-688. Like
the thirty-foot unguarded pit example used in Lugo, the only way for Woodbury to avoid injury
in the face of an unguarded second-story porch was simply not to fall.
While Woodbury describes a completely unguarded porch of significant height, the loft in
this case is only partially unguarded. But in addition to the incomplete guardrail, there are
several other design and layout factors we must consider: an open unguarded area existed
between the loft guardrail and the edge of the steps; the stairway was unguarded on the open side
opposite the wall; the stair treads were irregularly narrow; the stairs were unusually steep and the
risers were of insufficient height; the handrail was an uneven tree branch that did not extend the
-4-
length of the stairs; the loft had a low ceiling that forced adults to walk in an unnatural manner;
and the stairway lacked a light switch at the top of the stairs.
Although we acknowledge that the wall and the handrail provided the user with a means
of avoiding injury when traversing the stairs, the totality of the circumstances surrounding the
staircase and loft, when considered in the light most favorable to the plaintiff, made the stairs
unreasonably dangerous even when used with reasonable and ordinary care. Unlike in
Woodbury, there was a means of avoiding injury, but the means were inadequate. And
considering that this stairway was the only means of egress from the loft area to the main floor of
the cabin, we find that the presented factors, taken together, constituted "special aspects"
differentiating the risk that the loft and stairway posed from typical open and obvious conditions.
It is the aggregate of factors that the trial court must analyze to determine if there are special
aspects that give rise to a uniquely high likelihood of harm or severity of harm if the risk is not
avoided. The analysis the trial court is to employ is qualitative, and not a pedantic stringing
together of noncausal factors or factors unrelated to the condition itself.
III
Plaintiff further argues that the stairs, stairway, and loft presented an unreasonable risk of
harm because they were not in compliance with the BOCA building code. We recognize that a
violation of a building code may be some evidence of negligence. Summers v Detroit, 206 Mich
App 46, 51-52; 520 NW2d 356 (1994). Not all BOCA code violations will support a specialaspects factor analysis in avoidance of the open and obvious danger doctrine. The critical
inquiry is whether there is something unusual about the stairs, stairway, and loft because of their
character, location, or surrounding conditions that gives rise to an unreasonable risk of harm.
Bertrand, supra at 617. "If the proofs create a question of fact that the risk of harm was
unreasonable, the existence of duty as well as breach become questions for the jury to decide."
Id. BOCA code violations have been alleged in this case, but have not been established in the
record. The trial court on remand is charged with the responsibility of addressing the alleged
violations as part of its analysis.
IV
Finally, plaintiff argues, "[t]his loft was NOT in a condition fit for the resort purposes for
which it was intended, and was not in reasonable repair." We review this argument in light of
Woodbury's evolution. Following this Court's published opinion in Woodbury (On Remand), on
second application for leave to appeal to the Michigan Supreme Court, the Supreme Court
ordered:
In lieu of granting leave to appeal, the case is remanded to the Court of
Appeals for a determination whether the defendants violated the 'reasonable
repair' requirement of MCL 554.139 (1)(b). MCR 7.302 (F)(1). The open and
obvious doctrine cannot be used to avoid a specific statutory duty. Jones v
Enertel, Inc, 467 Mich 266, 270 (2002). If necessary, the Court of Appeals may,
while retaining jurisdiction, remand the case to the trial court for resolution of any
factual dispute regarding the applicability of MCL 554.139(1)(b). [Woodbury v
Bruckner, 467 Mich 922 (2002).]
-5-
Because of the existence of material issues of genuine fact, this Court then remanded the action
to the trial court for a trial on the issue of breach of statutory duties.
Here, because plaintiff alleges that the rented premises were unfit and not in reasonable
repair, we address the statute. MCL 554.139(1) provides:
In every lease or license of residential premises, the lessor or licensor
covenants:
(a) That the premises and all common areas are fit for the use intended by
the parties.
(b) To keep the premises in reasonable repair during the term of the lease
or license, and to comply with the applicable health and safety laws of the state
and of the local unit of government where the premises are located . . . .
Therefore, owners of leased residential property are obligated by statute to maintain their
premises in reasonable repair and in compliance with health and safety laws of the state and local
government for the protection of invitees or licensees. Regardless of the duty imposed by the
statute, defendants here would interpose the open and obvious danger doctrine as a bar to
plaintiff 's liability claim.
In Jones v Enertel, Inc, 467 Mich 266; 268-269; 650 NW2d 334 (2002), the Court
discussed the interrelationship between an affirmative statutory duty owed by the premises
owner to an invitee or licensee and the application of the open and obvious danger doctrine.
There, a municipality sought to interject the open and obvious danger doctrine to vitiate its
liability to a plaintiff injured on a defective sidewalk. After quoting MCL 691.1402(1) the Court
stated:
The emphasized language places a duty on municipalities to maintain their
sidewalks on public highways in reasonable repair.
This means that
municipalities have an obligation, if necessary, to actively perform repair work to
keep such sidewalks in reasonable repair. This is a greater duty than the duty a
premises possessor owes to invitees under common-law premises liability
principles. The basic duty owed to an invitee by a premises possessor is "to
exercise reasonable care to protect the invitee from an unreasonable risk of harm
caused by a dangerous condition on the land." Lugo v Ameritech Corp, 464 Mich
512, 516; 629 NW2d 384 (2001). Accordingly, as we discussed in Lugo, this duty
does not generally require a premises possessor to remove open and obvious
conditions because, absent special aspects, such conditions are not unreasonably
dangerous precisely because they are open and obvious. However, such
reasoning cannot be applied to the statutory duty of a municipality to maintain
sidewalks on public highways because the statute requires the sidewalks to be
kept in "reasonable repair." The statutory language does not allow a municipality
to forego such repairs because the defective condition of a sidewalk is open and
obvious. Accordingly, we conclude that the open and obvious doctrine of
-6-
common-law premises liability cannot bar a claim against a municipality under
MCL 691.1402(1). [Jones, supra at 268-269.]
The open and obvious danger doctrine is not available to deny liability to an injured invitee or
licensee on leased or licensed residential premises when such premises present a material breach
of the specific statutory duty imposed on owners of residential properties to maintain their
premises in reasonable repair and in accordance with the health and safety laws, as provided in
MCL 554.139(1)(a) and (b).
Like in Woodbury, supra, the issue of a statutory duty exception to the open and obvious
danger doctrine is appropriate subject matter for discussion and development. Other than raising
an argument that the premises were unfit for the purposes intended, the issue of statutory duty
was neither briefed nor argued by the parties. Because a statutory duty exception or avoidance
of the open and obvious danger doctrine requires both factual and legal development, on remand
we direct the parties and the court to reach the issue in accordance with applicable law.
CONCLUSION
A premises liability claim focuses on defective conditions on the premises. Analysis of
the claim necessarily implicates the open and obvious danger doctrine. The open and obvious
danger doctrine as a bar to the claim is avoided by a finding of special aspects creating an
unreasonable risk of harm. The application of the open and obvious danger doctrine may
additionally be avoided in a premises liability claim involving the lease or license of residential
property by the statutory imposition of a specific duty to maintain the premises in reasonable
repair and in compliance with state and local health and safety laws. Because factual questions
existed respecting the applicability of these exceptions to the open and obvious danger doctrine,
we conclude that summary disposition should not have been granted.
We reverse and remand. We do not retain jurisdiction.
/s/ William C. Whitbeck
/s/ Brian K. Zahra
/s/ Pat M. Donofrio
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.