MARY ANN ZOPPA V GREAT LAKES PROPERTY GROUP TRUST
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STATE OF MICHIGAN
COURT OF APPEALS
MARY ANN ZOPPA,
UNPUBLISHED
November 2, 2004
Plaintiff-Appellant,
v
GREAT LAKES PROPERTY GROUP TRUST,
d/b/a/ OXFORD PLACE APARTMENTS,
No. 249338
Kent Circuit Court
LC No. 02-03982-NI
Defendant-Appellee.
Before: Neff, P.J., and Smolenski and Schuette, JJ.
SCHUETTE, J. (dissenting).
Plaintiff in this premises liability action appeals as of right from an order granting
defendant’s motion for summary disposition under MCR 2.116(C)(10). The majority would
reverse on the grounds that a genuine issue of material fact remains as to whether the depression
in the grass created an unreasonable risk of harm. I believe that summary disposition was proper
because I do not believe that reasonable minds could differ. Uneven ground in a grassy area is a
common and known risk and does not create an unreasonable risk of harm. I would affirm.
In the instant case, no evidence exists to suggest that the hole in which plaintiff stepped
posed an unreasonable risk of harm. I believe the trial court correctly determined that there was
no question of fact. The parties both agree that plaintiff was injured when she tripped in a twelve
inch depression in a grassy area maintained by defendant. Contours in unpaved surfaces are the
type of everyday occurrence that people encounter, under most circumstances, a reasonably
prudent person will look where she is going, will observe the variation in landscape, and will
take appropriate care for her own safety. Under ordinary circumstances, the overriding public
policy of encouraging people to take reasonable care for their own safety precludes imposing a
duty on the possessor of land to make ordinary grassy areas “foolproof.” Therefore, the risk of
harm is not unreasonable. See Bertrand v Alan Ford, Inc, 449 Mich 606, 616-61; 537 NW2d
185 (1995). Only if the proofs create a question of fact that the risk of harm was unreasonable,
the existence of duty as well as breach become questions for the jury to decide. Williams v
Cunningham Drug Stores, Inc, 429 Mich 495, 499; 418 NW2d 381 (1988). Here, I disagree with
the majority’s determination that because the depression was not open and obvious, the issue of
whether it created an unreasonable risk of harm must go to the finder of fact. I would find that
reasonable minds could not differ as to whether there was an unreasonable risk of harm.
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I would affirm.
/s/ Bill Schuette
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