FOREST WOLFROM V HILLCREST MEMORIAL GARDENS ASSN
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STATE OF MICHIGAN
COURT OF APPEALS
FOREST WOLFROM and
CHARLOTTE WOLFROM,
UNPUBLISHED
April 6, 1999
Plaintiffs-Appellants,
v
No. 204746
Shiawassee Circuit Court
LC No. 96-060280 NO
HILLCREST MEMORIAL
GARDENS ASSOCIATION,
Defendant-Appellee.
Before: Jansen, P.J., and Holbrook, Jr., and MacKenzie, JJ.
MacKENZIE, J. (dissenting).
I respectfully dissent because I conclude (1) that any danger associated with the step was open
and obvious, and (2) that the step did not pose an unreasonable risk of harm despite the obviousness of
the danger.
Although the step and the ground level were painted the same color, the area in question was
well-lit. Therefore, even while descending the step, an average person of ordinary intelligence, upon
casual inspection, would recognize a 5 ¼-inch elevation change. See Novotney v Burger King Corp,
198 Mich App 470, 474-475; 499 NW2d 379 (1993). Moreover, a typical person descending the
step would have earlier ascended the step to access defendant's business, and plaintiffs admit that the
step was readily apparent upon ascent. The undisputed obviousness of the step to those ascending,
combined with the adequate lighting, leads me to conclude that any danger associated with the step was
open and obvious as a matter of law.
This conclusion is reinforced by Maurer v Oakland County Parks & Recreation Dep’t (After
Remand), the companion case to Bertrand v Alan Ford, Inc, 449 Mich 606, 611; 537 NW2d 185
(1995). In Maurer, as in the instant case, the plaintiff alleged that she was unable to discern the change
in elevation between two different levels of a walkway and that the defendant was negligent for, among
other things, “failing to mark the step with a contrasting color.” Id. at 618. This Court held that there
was a question of fact regarding whether the danger associated with the step was open and obvious
because, just as plaintiff alleges in the instant case, a user of the step easily got the impression that the
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entire area was flat. Maurer v Oakland County Parks & Recreation Dep’t, 201 Mich App 223,
227; 506 NW2d 261 (1993), rev’d sub nom Bertrand, supra at 621. The Supreme Court reversed,
implicitly concluding that the danger associated with similarly-painted floor levels of different elevations
was open and obvious. Bertrand, supra at 618-621.
The Bertrand Court, after implicitly concluding that the danger associated with the step was
open and obvious, focused on whether the danger associated with the step was unreasonable in spite of
its obvious nature. Id. at 618-621. If an obvious risk of harm remains unreasonable – in other words, if
an invitor anticipates harm in spite of the obviousness of the danger – the invitor may be obligated to
take steps intended to enhance the protection of invitees. See Bertrand, supra at 611, and Riddle v
McLouth Steel Products Corp, 440 Mich 85, 96; 485 NW2d 676 (1992). In Hottmann v
Hottmann, 226 Mich App 171, 176; 572 NW2d 259 (1997), our Court framed this inquiry as
whether “the risk of falling . . . is eliminated by awareness of the hazard.” Here, awareness of the
hazard indisputably eliminates the risk of falling, since the risk results only from a failure to see the step
and not from any inherent defect in the step. Once a person sees the step, a safe descent can be
assumed. For this reason, I disagree with the majority’s implication that even if the danger associated
with the step was open and obvious, there would still be a question of fact regarding whether the risk of
harm was unreasonable. As indicated in Bertrand, supra at 621, where the plaintiff's “only asserted
basis for finding that the step was dangerous was that she did not see it,” the risk of harm posed by the
steps in question was not unreasonable as a matter of law.
I conclude that the open and obvious risk of harm was not unreasonable as a matter of law and
would therefore affirm.
/s/ Barbara B. MacKenzie
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