PAMELA PETERSON V DAVID WILKINS
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STATE OF MICHIGAN
COURT OF APPEALS
PAMELA PETERSON and WES PETERSON,
UNPUBLISHED
October 5, 2001
Plaintiffs-Appellants,
V
No. 221951
Oakland Circuit Court
LC No. 98-009356-NO
DAVID WILKINS and ANN WILKINS,
Defendants-Appellees.
Before: Bandstra, C.J., and White and Collins, JJ.
WHITE, J. (dissenting).
I respectfully dissent. The facts viewed in a light most favorable to plaintiffs1 are that
plaintiff Pamela Peterson (plaintiff), a self-employed housekeeper, had been cleaning defendants’
residence for about six months when the accident underlying this case occurred. Plaintiff
testified at deposition2 that she normally did routine cleaning of defendants’ residence, but on the
day in question was performing additional housekeeping duties, pursuant to defendant David
Wilkins’ (defendant) request that she clean the ceilings of the living room, dining room and
kitchen. Plaintiff and defendant had discussed this project several weeks earlier and decided on a
price for her services.
Plaintiff testified that on the day she was to clean the ceilings, defendant told her that he
wanted her to use drop cloths to cover the floor and furniture while she was cleaning the ceilings,
and that she did so. Defendants’ house was being remodeled on the day of the accident.
Defendant had given plaintiff two ladders, a yellow one and a brown one, at the beginning of the
workday to use when cleaning the ceilings, and then defendant left for a while. Plaintiff
performed her regular cleaning duties, and at around 11:00 a.m. turned to cleaning the ceiling in
1
Wes Peterson, plaintiff's husband, claims loss of consortium.
2
Plaintiffs’ response to defendants’ motion for summary disposition attached as an exhibit every
other page of plaintiff’s deposition transcript (in minuscript). Although defendants pointed out in
their reply brief that plaintiffs had supplied only every other page of plaintiff’s deposition,
plaintiffs did not correct this apparent error. Thus, the record before the circuit court consisted of
every other page of plaintiff’s deposition, and it is on that portion of her deposition that I have
reviewed this matter.
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the living room. Plaintiff tested the yellow ladder and did not use it because one of the legs was
bent, making it wobbly. Plaintiff tested the brown ladder before using it, and found it sturdy.
Defendant testified at deposition that both the yellow and brown ladders were traditional A-frame
step ladders. Defendant testified that the ceiling of his residence is about twelve feet high at its
highest point, and that the ceiling beams are approximately six inches below that. In accordance
with defendant’s instruction, plaintiff placed drop cloths on the living room floor, which was
carpeted, and cleaned the living room ceiling, without incident.
Plaintiff testified that defendant later came back home and asked her how it was going,
and that she responded that “it was going good, I was doing just fine.” At this point, plaintiff had
finished cleaning the living room ceiling. Defendant told her he did not like the ladder she was
using and went to the garage to get an extension ladder he said would be safer, even though
plaintiff had said to him that the ladder she was using was fine. Defendant testified that the
aluminum extension ladder he got from the garage was approximately ten feet long and extended
to around twenty feet. Plaintiff testified that defendant then set up the extension ladder for her in
the kitchen around where the counter is, placing the ladder over the drop cloth that was on the
kitchen floor, which was tile.3 Plaintiff testified that defendant positioned the ladder so that its
top was touching a ceiling cross-beam. Defendant similarly testified at deposition that he put the
extension ladder “up to the beam and adjusted the height,” by extending the ladder, he believed
one rung. Defendant testified that he set up the ladder as he had been taught; at an angle so that
“the feet of the ladder were touching my feet and the angle was such that when I extended my
arms out, I could touch the ladder.” Defendant testified that he left the room before plaintiff
climbed the extension ladder the first time. Plaintiff testified that after defendant initially set up
the extension ladder, plaintiff climbed it, did some ceiling cleaning, and climbed down, without
incident. She then moved the extension ladder over one or two feet, about which she testified:
Q So in your estimation, there was nothing different about the way the ladder was
situated?
A No.
Q Except that it was one to two feet to the right?
A Right.
Q The bottom or – the bottom of the ladder was still on the same thing, which is
the tarp which was on the tile?
A Yes, sir.
Q The top of the ladder was still touching the crossbeam?
A Yes, sir.
3
Defendant testified at deposition that the tiled portion of the kitchen was approximately twelve
feet by twelve feet and that the tile was “some type of ceramic or clay.”
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Plaintiff testified that this second time, she climbed the extension ladder to the same height as the
first time, and started to wipe the ceiling beam when she felt the feet of the extension ladder slide
out from under her.
Defendants’ motion for summary disposition argued, among other things, that the ladder
was a simple product and defendants had no duty to warn of or protect against open and obvious
dangers presented by simple products. The circuit court granted defendants’ motion under MCR
2.116(C)(10), without hearing oral argument, on the basis that the danger associated with the
ladder was open and obvious:
Plaintiff, Pamela Peterson, alleges that, on November 17, 1997, Plaintiff fell off a
ladder while performing housecleaning services at Defendants, David Wilkins and
Ann Wilkins’ residence. Plaintiff alleges that Defendants supplied, provided
and/or set up the subject ladder for Plaintiff to use and, further, that Defendants
negligently positioned the subject ladder on a canvas sheet and/or drop cloth,
which facilitated her fall. Plaintiffs brought the instant cause of action alleging
negligence against Defendants in order to recover damages for the alleged injuries
of Plaintiff Pamela. . . .
***
This Court finds that an average user of ordinary intelligence would have
discovered the danger and risk involved in utilizing the subject ladder and,
therefore, the danger associated with the use of the ladder is open and obvious,
which is not unreasonable under the circumstances. Under the facts, as alleged,
Defendants are under no duty to protect or warn Plaintiff against said open and
obvious condition on the premises.
The court denied plaintiffs’ motion for reconsideration, which argued, among other things, that
the circuit court “[a]fter dispensing with oral argument and without considering the theory
advanced by the movants,” had granted defendants’ motion. Plaintiffs argued that their claim
was that “defendants negligently selected the wrong tool for the job and that defendant David
Wilkins negligently set up the ladder for Ms. Peterson’s use, thus causing her fall.” Plaintiffs
argued that the facts as presented
leave open the issue of whether the danger associated with the use of the ladder is,
in fact reasonable. Where the proofs create a question of fact with respect to
whether the danger was ‘open and obvious’ and whether the risk of harm was
unreasonable, determination must be left to the jury. Hughes v PMG Building,
227 Mich App 1, 11-12 (1997). This is particularly true given the factual dispute
as to whether or not the ladder was standing on a drop cloth or the bare tile floor.
. . . . Despite open and obvious dangers, expectation of harm to the invitee can
arise “where the possessor had reason to expect that the invitee’s attention may be
distracted,” causing forgetfulness or a failure to protect himself. Bertrand [ v Alan
Ford, Inc, 449 Mich 606, 611-612; 537 NW2d 185 (1995).] Likewise, an
expectation of harm may occur where, as in the case at bar, the possessor has
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reason to expect the invitee will proceed to encounter the danger because the
advantages of doing so would outweigh the apparent risks. Id. at 612. In the
case at bar, defendants indeed had reason to expect Ms. Peterson’s attention
would be distracted and that she may fail to protect herself. Ms. Peterson’s
injuries occurred while performing her employment duties, which required her to
climb the ladder in question, a ladder which defendants insisted she use instead of
the step ladder with which she had begun the job.
Perhaps more compelling however, is the fact that, despite the alleged known risk,
defendants could reasonably expect Ms. Peterson to proceed to encounter the
danger. Ms. Peterson was an independent contractor and her need (and desire) to
retain her status with defendants could have been jeopardized if she had refused to
complete the job due defendants’ [sic] choice of equipment. [Emphasis in
original.]
The circuit court denied plaintiffs’ motion for reconsideration, on the basis that it
presented the same issues the court had ruled on previously. This appeal ensued.
A plaintiff must prove four elements in order to establish a prima facie case of
negligence: (1) a duty was owed by the defendant to the plaintiff; (2) that duty was breached; (3)
causation; and (4) damages. Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000).
Plaintiffs argued in response to defendants’ motion for summary disposition that
defendants owed plaintiff a duty of reasonable care and breached that duty when defendant David
Wilkins selected the extension ladder, instructed plaintiff to use it, and set it up on a drop cloth
resting on a slippery floor, thereby creating an unreasonable risk of harm.4
Plaintiff presented evidence that defendant chose, provided and set up the extension
ladder for her in the tiled-floor kitchen, leaning the top of the ladder on a ceiling cross beam,
with the ladder’s feet on top of a drop cloth that was over the tile floor, and that defendant had
asked her to cover the floors with drop cloths. Defendant undisputedly assumed the
responsibility of selecting and setting up the extension ladder for plaintiff. This created a duty
not to expose plaintiff to an unreasonable risk of harm. See Baker v Arbor Drugs, 215 Mich App
198, 205-206; 544 NW2d 727 (1996) (noting that “[c]ourts have imposed a duty where a
defendant voluntarily assumed a function that it was under no legal obligation to assume.”).
Further, to the extent that plaintiffs alleged premises liability, the question is whether it is
reasonable to expect an average user with ordinary intelligence to discover upon casual
inspection the danger, Weakley v Dearborn Heights, 240 Mich App 382; 612 NW2d 428 (2000),
which in this case was the extension ladder’s placement at an angle while on a drop cloth
covering a tile floor. Even if the danger is open and obvious, if the risk of harm remains
unreasonable, the invitor may be required to undertake reasonable precautions. Bertrand v Alan
4
Although plaintiffs’ complaint included an allegation that the extension ladder was defective,
plaintiffs did not pursue that theory or advance it in response to defendants’ motion.
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Ford, Inc, 449 Mich 606, 611; 537 NW2d 185 (1995). Such unreasonable risks of harm may
occur when the invitor expects that there may be distractions preventing discovery of the obvious
by the invitee, that the invitee will forget what has been discovered, or that the invitee will fail to
protect himself from the danger. Id., quoting 2 Restatement Torts, 2d, § 343A comment f, p 220.
Reason to expect harm to the visitor from known or obvious dangers may also arise where the
possessor has reason to expect that the invitee will proceed to encounter the danger because to a
reasonable person in her position the advantages of doing so would outweigh the apparent risk.
Bertrand, supra at 612. Plaintiff correctly argued that based on the record presented regarding
defendant’s choice of equipment and instructions to plaintiff, there were genuine issues regarding
whether these exceptions applied.
Defendants’ motion for summary disposition also argued that plaintiff could not establish
causation. The circuit court did not rule on this basis. I conclude that plaintiff presented
sufficient evidence on this issue as well.
Plaintiff testified at deposition that after defendant set up the extension ladder for her in
the kitchen, on the tarp, she climbed the ladder and cleaned without incident. She then
descended the ladder, moved it over one or two feet and positioned it just as defendant had
positioned it, leaning against the ceiling beam, its feet on the tarp:
Q So in your estimation, there was nothing different about the way the ladder was
situated?
A No.
Q Except that it was one to two feet to the right?
A Right.
Q The bottom or – the bottom of the ladder was still on the same thing, which is
the tarp which was on the tile?
A Yes, sir.
Q The top of the ladder was still touching the crossbeam?
A Yes, sir.
Regarding the ladder then slipping, causing her accident, plaintiff testified:
A Well, I no sooner got up there and I felt the ladder moving, and all I could say
was I just said to myself, oh, no. I tried to grab on to the beam. I tried to come
down. I tried to stop myself. And there was just no way, and I could feel my face
hitting the ladder several times before I hit the floor.
Q How did the ladder move? In other words, in which direction did it move – not
what caused it to move?
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A It was sliding down – it was starting to slide out from under me, and that’s
when I knew I was coming down with the ladder.
Q Which part of the ladder moved?
A The bottom.
Q Which way did it move?
A Back of me.
Q Towards the dining room or toward the kitchen?
A Towards the dining room.
***
Q Do you know what caused the bottom of this ladder to slide toward the dining
room, as you’ve described it?
A The only thing I know that could have caused it could have been the tarp.
Q And what was it about the tarp that leads you to believe that that could have
caused the bottom of the ladder to slide towards the dining room?
A I guess because the floor, the tile – the tile floor’s slippery.
***
Q The bottom of the ladder was in the first position, was on the tarp when it was
over tile as well, correct?
A When I moved the first time?
Q Yes?
A Yeah. It was sitting on the tarp, too.
Q And the tarp was on the tile when you went up the first time?
A Right.
Although defendant testified at deposition that there were no tarps on the kitchen floor, and that
he had instructed plaintiff to use tarps on the furniture and on the carpet, but not on the kitchen
floor because it was going to be replaced, plaintiff’s deposition testimony raises a genuine issue
of fact on this question. Plaintiff’s deposition testimony also raises genuine issues regarding the
manner of the accident, the ladder slipping out from the base, and defendant’s responsibility
stemming from his instructing plaintiff which tool to use and how to set it up, and plaintiff’s
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testimony that she set the ladder up in the same manner as defendant had.5 For these reasons,
summary disposition would not have been proper on the basis of causation.
I would reverse and remand.
/s/ Helene N. White
5
At oral argument before this Court plaintiffs’ counsel stated, and the lower court record
confirms, that plaintiffs had named a liability expert on their witness list.
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