LISA COHEN V GEORGE W SMITH
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STATE OF MICHIGAN
COURT OF APPEALS
LISA COHEN,
UNPUBLISHED
June 21, 2002
Plaintiff-Appellant,
v
No. 231714
Oakland Circuit Court
LC No. 00-021889-NO
GEORGE W. SMITH and BONNIE’S
PATISSERIE,
Defendant-Appellee.
Before: Neff, P.J., and Griffin and Talbot, JJ.
PER CURIAM.
In this premises liability action, plaintiff appeals as of right from the trial court’s order
granting defendants’ motions for summary disposition under MCR 2.116(C)(10). We affirm.
Plaintiff brought this action for injuries she allegedly sustained on property owned by
defendant George W. Smith and occupied by defendant Bonnie’s Patisserie. Plaintiff alleged
that as she was leaving Bonnie’s Patisserie, an “elevated portion” of the sidewalk in front of the
store caused her to trip and fall. She later amended her complaint to add a claim for breach of
statutory duty under Chapter 34, § 4.68 of the City Code of Southfield, which provides that “no
person shall permit any sidewalk which adjoins property owned by him to fall into a state of
disrepair or to be unsafe.”
Defendants moved for summary disposition under MCR 2.116(C)(10). Defendants
argued that they owed no duty to plaintiff because the condition of the sidewalk was open and
obvious. They relied on plaintiff’s deposition testimony in which she admitted that “it was very
obvious how bad it was.” With respect to count II of plaintiff’s complaint, defendants argued
that the cement walkway connecting Bonnie’s Patisserie to the parking lot is not a “sidewalk” as
defined in the city code, and therefore the ordinance is inapplicable, or, even if the ordinance
does apply, it does not provide a basis for a private cause of action.
Plaintiff responded that a question of fact existed regarding whether the raised portion of
the sidewalk was open and obvious, and relied on Smith’s deposition testimony that he never
noticed any such defect. Plaintiff also submitted an affidavit clarifying that her deposition
testimony that “it was obvious how bad it was” referred to her injury, and not to the condition of
the sidewalk. Plaintiff further argued that even if the defect in the sidewalk was open and
obvious, defendants should have anticipated the harm, and therefore they are not relieved of
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liability. In support of her count alleging breach of duty under the city ordinance, plaintiff relied
on Walker v City of Flint, 213 Mich App 18; 539 NW2d 535 (1995), in which the plaintiff
recovered for a slip and fall on a city sidewalk under the highway exception to governmental
immunity, to which the open and obvious doctrine is not a defense.
We review a trial court’s ruling on a motion for summary disposition de novo. Spiek v
Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion brought under
MCR 2.116(C)(10) tests the factual support for a claim. Id. at 338. In ruling on the motion, the
court must consider the pleadings, affidavits, depositions, and other documentary evidence
submitted by the parties in the light most favorable to the party opposing the motion. Quinto v
Cross & Peters Co, 451 Mich 358, 361-363; 547 NW2d 314 (1996). “Summary disposition is
appropriate only where, viewing all documentary evidence in the light most favorable to the
nonmoving party, no genuine issue of material fact exists.” Maiden v Rozwood, 461 Mich 109,
119-120; 597 NW2d 817 (1999).
“[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, 464 Mich 512, 517; 629
NW2d 384 (2001). “[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.” Id. at 519.
We conclude that there is no question of fact that the condition of the sidewalk was open
and obvious.1 Plaintiff testified at deposition that she was carrying a box in front of her with
both hands and she was not able to see over the box as she was walking out of the store. After
she got up from the ground, she noticed chuckholes in the concrete and that part of the sidewalk
was elevated. She admitted that she does not pay attention when she walks and that other than
the box she was carrying, nothing interfered with her ability to see the sidewalk. See Lugo,
supra at 521, 523. Accordingly, the evidence leaves no question of fact that the condition was
discoverable upon casual inspection. Corey v Davenport College (On Remand), ___ Mich App
___; ___ NW2d ___ (Docket No. 206185, rel’d 4/26/02), slip op p 2; Novotney v Burger King
Corp (On Remand), 198 Mich App 470, 475; 499 NW2d 379 (1993). Smith’s testimony that he
never noticed a defect is insufficient to create a question of fact in light of plaintiff’s admission
that she failed to notice the condition of the sidewalk only because she was carrying the box in
front of her. Perkoviq v Delcor Homes-Lake Shore Pointe, Ltd, 466 Mich 11, 18; 643 NW2d
212 (2002), quoting Lugo, supra at 516-517 (“[I]f the particular activity or condition creates a
risk of harm only because the invitee does not discover the condition or realize its danger, then
the open and obvious doctrine will cut off liability if the invitee should have discovered the
condition and realized its danger.”). Further, plaintiff offers no evidence of any special aspect of
the sidewalk that would create an unreasonable risk of harm despite the open and obvious nature
of the condition. Lugo, supra at 523.
1
We note that our review of the photographic evidence further supports our conclusion that the
condition of the sidewalk was open and obvious and without any special aspect giving rise to a
uniquely high likelihood of harm. Lugo, supra at 519.
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We also agree that the trial court properly granted summary disposition of plaintiff’s
claim based on a breach of duty under the city ordinance. The city ordinance creates a public
duty and does not create a private cause of action against defendants.2 Levendoski v
Geisenhaver, 375 Mich 225, 227; 134 NW2d 228 (1965). See Szkodzinski v Griffin, 171 Mich
App 711, 713; 431 NW2d 51 (1988); Taylor v Saxton, 133 Mich App 302, 306; 349 NW2d 165
(1984).
Affirmed.
/s/ Janet T. Neff
/s/ Richard Allen Griffin
/s/ Michael J. Talbot
2
We note that the trial court correctly distinguished Walker, supra. That case involved a suit
against a municipality and the applicability of the open and obvious doctrine to a case brought
under the highway exception to governmental immunity. Walker, supra at 22.
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