KURT WINNINGHAM V DAVID J ROBERTSON
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STATE OF MICHIGAN
COURT OF APPEALS
KURT WINNINGHAM,
UNPUBLISHED
July 31, 2001
Plaintiff-Appellant,
v
DAVID J. ROBERTSON, d/b/a ROBERTSON &
SONS WELL DRILLING, and WILLIAM J.
ESPER, AGNES C. ESPER, WILLIAM J. ESPER
TRUST, and AGNES C. ESPER TRUST,
No. 223078
Macomb Circuit Court
LC No. 98-004518-NO
Defendants-Appellees.
Before: Bandstra, C.J., and White and Collins, JJ.
PER CURIAM.
Plaintiff Kurt Winningham (“plaintiff”) appeals as of right from the order granting
summary disposition to defendants David J. Robertson (“Robertson”) and William J. Esper,
Agnes C. Esper, William J. Esper Trust, and Agnes C. Esper Trust (collectively, “the Esper
defendants”). We reverse and remand.
Plaintiff and his family were tenants in a farmhouse owned by the Esper defendants.
Sometime in February or early March 1998, the well pump on the property stopped functioning,
causing the house to be without water. The Esper defendants hired Robertson, a well driller with
twenty years’ experience, to service the pump. Robertson determined that the problem was in the
underground electrical line that supplied power to the pump and was able to alleviate the
immediate problem by bypassing the underground wire and running a temporary electrical line
from the house to the pump. Robertson ran the cord out through the basement window and along
the ground to the well pit, through an area accessible by plaintiff’s chained labrador retriever.
Robertson did not bury the line because the ground was frozen at the time. A few days later,
plaintiff’s dog chewed through the line and, although the dog was not electrocuted, the pump was
again disabled. Robertson was once again summoned, but, in the interim, and while the circuit
breaker was tripped, plaintiff spliced the individual wires back together according to their color
coding. Over the following months, neither Robertson nor Esper buried the line. One evening in
July 1998, plaintiff was weed whipping near the line and attempted to move the line by his
ordinary custom of gripping it on either side of the splice, so that it would not pull apart. In
doing so, plaintiff received a severe electrical shock.
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Plaintiff filed a complaint under various theories of negligence and nuisance, alleging,
among other things, that he had suffered injuries that impaired his ability to perform his job as a
bricklayer. The trial court granted summary disposition, pursuant to MCR 2.116(C)(10), to
Robertson and the Esper defendants on the basis that the hazard by which plaintiff was injured
was open and obvious, and because plaintiff’s own negligence had created the condition.1
On appeal, plaintiff argues that: (1) although he was the one who made the splice and left
the wires bare and exposed, the danger posed by the exposed electric wires was not open and
obvious to the extent that he could not determine, upon casual inspection, that the line carried
220 volts of electricity; (2) even if the danger from the line was open and obvious, it was still
unreasonably dangerous and the Esper defendants had a duty to undertake reasonable precautions
to make this condition safe; and (3) even if plaintiff’s negligence contributed to the hazard, that
did not justify granting summary disposition to others whose negligent acts or omissions were
substantial causes of his injuries.
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). On a motion
brought pursuant to MCR 2.116(C)(10), “[t]he court considers the affidavits, pleadings,
depositions, admissions, and other documentary evidence submitted or filed in the action to
determine whether a genuine issue of any material fact exists to warrant a trial.” Id. On appeal,
as below, all reasonable inferences are drawn in favor of the nonmoving party. Bertrand v Alan
Ford, Inc, 449 Mich 606, 617-618; 537 NW2d 185 (1995).
Premises owners have a duty to protect invitees from possible injury by exercising due
care and maintaining their property in a reasonably safe condition. Riddle v McLouth Steel
Products Corp, 440 Mich 85, 90; 485 NW2d 676 (1992). However, no duty is owed where the
dangers are known or are open and obvious unless the risk of injury remains unreasonable in
spite of knowledge and obviousness. Bertrand, supra at 611. In other words, as recently stated
by the Supreme Court:
[T]he general rule is that a premises possessor is not required to protect an invitee
from open and obvious dangers, but, if special aspects of a condition make even
an open and obvious risk unreasonably dangerous, the premises possessor has a
duty to undertake reasonable precautions to protect invitees from that risk. [Lugo
v Ameritech Corp, Inc, ___ Mich ___; ___ NW2d ___ (Docket No. 112575,
decided 7/3/2001), slip op at 4.]
Whether a danger is open and obvious depends upon whether it is reasonable to expect an
average user with ordinary intelligence to discover the danger upon casual inspection. Novotny v
Burger King Corp (On Remand), 198 Mich App 470, 475; 499 NW2d 379 (1993).
1
We are unable to glean from the record the court’s basis for disposing of plaintiff’s claim
alleging a nuisance. Because plaintiff has not raised the issue on appeal, we need not address the
issue here.
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Drawing all reasonable inferences from the submitted evidence in plaintiff’s favor, we
conclude that the circuit court properly determined that the danger posed by the exposed splice
was open and obvious. It is undisputed that plaintiff was aware that there was an electrical line
with an exposed splice that provided power to the well pump and which ran along the ground
from his house to the well pit. Further, plaintiff acknowledged that he understood that electrical
wires can be dangerous. Plaintiff contends, however, that because he was not aware that the
exposed line carried 220 volts of electricity and he presented evidence that it is not possible for
an average person with ordinary intelligence to determine by casual inspection the voltage level
of an electrical line, the danger presented by the exposed splice was not open and obvious.
Whether an average user with ordinary intelligence would appreciate the degree of harm
associated with a particular exposed electrical line is not a factor in determining whether the
danger was open and obvious. See Glittenberg v Doughboy, 441 Mich 379, 401-402; 491 NW2d
208 (1992). The obvious risk of exposed electrical wires, whatever the voltage, is an electric
shock. Plaintiff acknowledged this danger by placing a ceramic bowl over the open wire, as he
explained, to “keep the rain off,” “[o]r anybody walking by.” “When such a risk is objectively
determinable, warnings that parse the risk are not required. The general danger encompasses the
risk of the specific injury sustained.” Id. at 400. Accordingly, we conclude that the circuit court
properly determined that the danger presented by the exposed electrical wire was open and
obvious.
However, we cannot conclude, as a matter of law, that the 220 volt line with an exposed
splice lying on top of the ground in plaintiff’s yard for approximately five months did not present
an unreasonable risk of harm. The evidence in this case “creates a genuine issue of fact
regarding whether there are truly ‘special aspects’ of the open and obvious condition that
differentiate the risk from typical open and obvious risks so as to create an unreasonable risk of
harm . . . .” Lugo, supra, slip op at 5.
First, plaintiff put forth evidence that the exposed 220 volt line presented an unusual
circumstance that involved a high risk of severe harm. Lugo, supra, slip op at 6-8. Plaintiff’s
expert averred that an exposed 220 volt line presents an extreme risk of potential injury or death,
that the township used the National Electrical Code to govern the installation and maintenance of
electrical systems, and that the code required that the 220 volt line be buried. Further, in light of
evidence that plaintiff had the responsibility for keeping the lawn mowed and given the time of
the year and the length of time that the line remained unburied, a trier of fact could reasonably
conclude that the Esper defendants should have anticipated that plaintiff would need to move the
unburied line at some point, and would proceed to encounter the risk. See Bertrand, supra at
612, quoting 2 Restatement Torts, 2d § 343A, comment f, p 220; see also Lugo, supra, slip op at
5-6. Indeed, plaintiff testified that he had moved the line on numerous occasions and not
received a shock. Although William Esper testified that plaintiff declined an offer to bury the
line and told him he would mow around it, plaintiff testified that he and his wife repeatedly asked
that the line be buried.
We conclude, therefore, that although the danger posed by the unburied line was open and
obvious, because a genuine issue existed regarding whether the unburied line presented an
unreasonable risk of harm, summary disposition was inappropriate. Bertrand, supra at 624-625.
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Finally, with regard to plaintiff’s argument that the circuit court erred in dismissing his
claims against Robertson and the Esper defendants on the basis that plaintiff was negligent in
creating the hazard that caused his injuries, this Court has noted as follows:
A defendant’s negligent conduct will be considered a proximate cause if it is a
substantial factor in causing the harm. Generally, when there are no policy
considerations involved, the question whether an intervening act of negligence is a
superseding cause relieving the defendant of liability is a question for the jury.
[Coy v Richard’s Industries, Inc, 170 Mich App 665, 669; 428 NW2d 734
(1988).]
Here, reasonable minds could differ regarding whether Robertson’s or the Esper
defendants’ conduct was a cause, and whether plaintiff’s conduct was a superseding cause, of
plaintiff’s injuries. First, under the terms of the lease, plaintiff was allowed to keep an outside
dog. Plaintiff’s dog had his own house and was on a chain, and the electrical line was run
through the dog’s range of territory. Further, the evidence conflicts regarding why the temporary
line was never buried. William Esper testified that he informed plaintiff that the Esper
defendants intended to install a completely new water system at the first opportunity, and that
plaintiff turned down their offer to bury the temporary line in the meantime. Again, according to
William Esper, plaintiff stated that he would simply mow around the line. By contrast, plaintiff
testified that he was never informed of a plan to install a new water system, that William Esper
never offered to bury the temporary line, that plaintiff offered to bury the line himself and was
told not to, and that he and his wife repeatedly requested, to no avail, that the Esper defendants
bury the line. Also, plaintiff averred at his deposition and in his affidavit that after he spliced the
wires, he asked Robertson to look them over, and that Robertson told him he had repaired the
line exactly as Robertson would have done and said that it was safe to turn the power back on.
Further, plaintiff testified at deposition that Robertson had promised to come back and bury the
line. However, Robertson testified that he was not hired to bury the line and that when he went
to the home after the pump stopped working because the dog chewed through the line, plaintiff
told him he had fixed the line and his services were not needed.
Because there exists a material question of fact regarding whether plaintiff’s negligence
was an intervening and superseding cause of his own injuries, the court erred by granting
summary disposition on that basis. Rather, the court should have permitted the trier of fact to
apportion responsibility according to the comparative negligence of the parties. See Jennings v
Southwood, 446 Mich 125, 131; 521 NW2d 230 (1994).
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Richard A. Bandstra
/s/ Helene N. White
/s/ Jeffrey G. Collins
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