ANDREA TEEPLE V PALACE SPORTS & ENTERTAINMENT

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STATE OF MICHIGAN COURT OF APPEALS ANDREA TEEPLE, UNPUBLISHED May 31, 2002 Plaintiff-Appellant, v No. 228957 Oakland Circuit Court LC No. 99-016692-NO PALACE SPORTS, Defendant-Appellee. Before: Fitzgerald, P.J., and Holbrook, Jr., and Doctoroff, JJ. PER CURIAM. Plaintiff appeals as of right from a circuit court order granting defendant’s motion for summary disposition in this premises liability action. We affirm. The trial court’s ruling on a motion for summary disposition is reviewed de novo. Kefgen v Davidson, 241 Mich App 611, 616; 617 NW2d 351 (2000). A motion brought under MCR 2.116(C)(10) tests the factual support for a claim. In ruling on such a motion, the trial court must consider not only the pleadings, but also depositions, affidavits, admissions and other documentary evidence, MCR 2.116(G)(5), and must give the benefit of any reasonable doubt to the nonmoving party, being liberal in finding a genuine issue of material fact. Summary disposition is appropriate only if the opposing party fails to present documentary evidence establishing the existence of a material factual dispute. Smith v Globe Life Ins Co, 460 Mich 446, 455; 597 NW2d 28 (1999). Plaintiff was an invitee in that she was on defendant’s premises which were held open for a commercial purpose. Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 604; 614 NW2d 88 (2000). A landowner is subject to liability for physical harm caused to his invitees by a condition on the land only if the owner (a) knows of, or by the exercise of reasonable care would discover, the condition and should realize that it involves an unreasonable risk of harm to his invitees; (b) should expect that his invitees will not discover or realize the danger or will fail to protect themselves against it; and (c) fails to exercise reasonable care to protect his invitees against the danger. Lawrenchuk v Riverside Arena, Inc, 214 Mich App 431, 432-433; 542 NW2d 612 (1995). The landowner’s duty is not absolute. Douglas v Elba, Inc, 184 Mich App 160, 163; 457 NW2d 117 (1990). It does not extend to conditions from which an unreasonable risk of harm cannot be anticipated or to open and obvious dangers. Id.; Hammack v Lutheran Social Services -1- of Michigan, 211 Mich App 1, 6; 535 NW2d 215 (1995). An open and obvious danger is one that is known to the invitee or is so obvious that the invitee might reasonably be expected to discover it, i.e., it is something that an average user with ordinary intelligence would be able to discover upon casual inspection. Riddle v McLouth Steel Products Corp, 440 Mich 85, 96; 485 NW2d 676 (1992); Novotney v Burger King Corp (On Remand), 198 Mich App 470, 475; 499 NW2d 379 (1993). However, if special aspects of a condition make even an open and obvious risk unreasonably dangerous, the landowner has a duty to undertake reasonable precautions to protect his invitees. Lugo v Ameritech Corp, Inc, 464 Mich 512, 517; 629 NW2d 384 (2001). It is “only 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.” Id. at 519 (footnote omitted). Plaintiff provided no evidence of an actual defect in the premises. The premises included a grassy hill and grassy terrain is an everyday occurrence. The hill presented no danger in and of itself apart from the danger of slipping on the grass, which was open and obvious and known to plaintiff. Slipping on the grass and falling to the ground does not present an especially high likelihood of injury. Lugo, supra at 520. The trial court correctly found that defendant did not breach a duty owed to plaintiff. Affirmed. /s/ E. Thomas Fitzgerald /s/ Donald E. Holbrook, Jr. /s/ Martin M. Doctoroff -2-

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