ANDREW JOSEPH LUCAS V HUNTINGTON BANCSHARES INC
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STATE OF MICHIGAN
COURT OF APPEALS
ANDREW JOSEPH LUCAS,
UNPUBLISHED
July 22, 2004
Plaintiff-Appellee,
v
No. 245313
Macomb Circuit Court
LC No. 02-000662-NO
HUNTINGTON BANCSHARES,
INCORPORATED,
Defendant-Appellant.
Before: Bandstra, P.J., and Fitzgerald and Hoekstra, JJ.
PER CURIAM.
In this premises liability action, defendant appeals by leave granted from the trial court’s
order denying defendant’s motion for summary disposition. We reverse and remand.
In his complaint, plaintiff alleges that he tripped on the lip of a ramp leading to defendant
bank, fell on his shoulder, and sustained a rotator cuff injury. Plaintiff seeks relief under theories
of negligence and nuisance. Defendant moved for summary disposition of plaintiff’s action, but
the trial court denied defendant’s motion. This appeal by leave granted ensued.
On appeal, defendant argues that the trial court erred in failing to grant summary
disposition in favor of defendant because defendant had no duty to warn or protect plaintiff from
the alleged defects in the ramp because the lip on the ramp was open and obvious and because
plaintiff failed to present a question of fact regarding special aspects. We agree.
We review a trial court’s grant of summary disposition de novo. Spiek v Dep’t of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). In evaluating a motion for summary
disposition brought under MCR 2.116(C)(10), “a trial court considers affidavits, pleadings,
depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the
light most favorable to the party opposing the motion” to determine whether a genuine issue
regarding any material fact exists. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817
(1999). If the nonmoving party fails to present evidentiary proofs showing a genuine issue of
material fact for trial, summary disposition is properly granted. Smith v Globe Life Ins Co, 460
Mich 446, 455-456, n 2; 597 NW2d 28 (1999).
In general, a premises possessor owes invitees a duty to exercise reasonable care to
protect them from unreasonable risks of harm caused by dangerous conditions on the land. Lugo
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v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001), citing Bertrand v Alan Ford,
Inc, 449 Mich 606, 609; 537 NW2d 185 (1995). This duty does not extend to dangers that are
open and obvious, unless special aspects of an open and obvious condition exist that create an
unreasonable risk of harm, in which case the premises possessor has a duty to take reasonable
steps to protect invitees from the risk. Lugo, supra at 516-517. To determine if a danger is open
and obvious, the test is whether “‘an average user with ordinary intelligence [would] have been
able to discover the danger and the risk presented upon casual inspection.’” Joyce v Rubin, 249
Mich App 231, 238; 642 NW2d 360 (2002), quoting Novotney v Burger King Corp (On
Remand), 198 Mich App 470, 475; 499 NW2d 379 (1993). With respect to open and obvious
dangers, the Lugo Court explained that
the critical question is whether there is evidence that creates a genuine issue of
material 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, i.e., whether the “special aspect” of
the condition should prevail in imposing liability upon the defendant or the
openness and obviousness of the condition should prevail in barring liability.
[Lugo, supra at 517-518.]
The Lugo Court characterized two types of special aspects: those where the open and obvious
condition is effectively unavoidable and those where the condition presents a substantial risk of
death or severe injury. Id. at 518. The Court instructed that “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.
Here, the trial court determined that the condition in the present case is open and obvious.
Neither party disputes that conclusion. Instead, the issue before us is whether the condition of
the ramp was such that a factfinder could determine that it has special aspects that would give
rise to a duty to protect plaintiff from the condition despite its open and obvious nature. We
conclude that it does not.
While plaintiff allegedly suffered a serious injury, the elevated condition of the bottom of
the ramp does not present a greater risk of injury than do other types of conditions that might
cause a person to trip and fall, such as an uneven sidewalk, a curb, or potholes in a parking lot.
Lugo, supra at 520-521 (a pothole in a parking lot is typically avoidable and poses little risk of
severe harm: “[u]nlike falling an extended distance, it cannot be expected that a typical person
tripping on a pothole and falling to the ground will suffer severe injury”); Corey v Davenport
College of Business (On Remand), 251 Mich App 1, 6-7; 649 NW2d 392 (2002) (falling several
feet down an open and obvious condition of ice-coated stairs does not give rise to the sort of
severe harm considered in Lugo). Although some people might suffer a greater injury than
others or than one might anticipate,1 the condition does not present special aspects that made it
1
We also note that the trial court stated that “[i]t is clear in this case that the condition of the
ramp could result in serious injury; in the case at bar, plaintiff allegedly suffered a torn rotator
cuff.” The trial court appears to examine the risk posed by the ramp in light of plaintiff’s
(continued…)
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unreasonably dangerous. In other words, a three-quarters of one inch lip on a ramp does not
render it unreasonably dangerous because it cannot be determined to impose a severe risk of
harm. Further, from the record it is clear that the condition was not “effectively unavoidable.”2
Thus, defendant is entitled to summary disposition.
Reversed and remanded for entry of judgment consistent with this opinion. We do not
retain jurisdiction.
/s/ Richard A. Bandstra
/s/ E. Thomas Fitzgerald
/s/ Joel P. Hoekstra
(…continued)
injuries. However, in Lugo, our Supreme Court explained that
[i]n considering whether a condition presents such a uniquely dangerous potential
for severe harm as to constitute a “special aspect” and to avoid barring liability in
the ordinary manner of an open and obvious danger, it is important to maintain
the proper perspective, which is to consider the risk posed by the condition a
priori, that is, before the incident involved in a particular case. It would, for
example, be inappropriate to conclude in a retrospective fashion that merely
because a particular plaintiff, in fact, suffered harm or even severe harm, that the
condition at issue in a case posed a uniquely high risk of severe harm. [Lugo,
supra at 518 n 2.]
2
Further, to the extent that the trial court mentioned in its opinion and order that the ramp was
not in compliance with the appropriate building code, and where plaintiff relies on building code
violations in his appellate brief, we note that violation of a building code is an issue of proximate
cause and not an issue of duty. Corey, supra at 9 n 1 (“With regard to the building code
violation allegation in this case, we note that the absence of a handrail deals with proximate
causation. Because a duty did not exist in this case because of the open and obvious condition
and the lack of a special aspect, we need not reach this issue.”); see also O’Donnell v Garasic,
259 Mich App 569, 578-579; 676 NW2d 213 (2003) (“Not all B[uilding] O[fficials] [&] C[ode]
A[dministrators International, Inc.] code violations will support a special aspects factor analysis
in avoidance of the open and obvious doctrine. The critical inquiry is whether there is something
unusual about the [complained of features] because of their character, location, or surrounding
conditions that gives rise to an unreasonable risk of harm.”). Because there was nothing unusual
about the three-quarters of one inch lip on the ramp that presented an unreasonable risk of harm,
a building code violation does not support a special aspects factor analysis in avoidance of the
open and obvious doctrine.
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