ALICIA ROSARIO V SHADOW WOODS MANOR LLC
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STATE OF MICHIGAN
COURT OF APPEALS
ALICIA ROSARIO,
UNPUBLISHED
November 16, 2004
Plaintiff-Appellant,
v
No. 249919
Macomb Circuit Court
LC No. 2002-000366-NO
16481 TEN MILE ROAD, L.L.C., and JIM
BURNEY/DO-RIGHT LAWN CARE,
Defendants-Appellees,
and
SHADOW WOODS MANOR, L.L.C.,
Defendant-Not Participating.
Before: Cavanagh, P.J., and Kelly and H. Hood*, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court’s order granting summary disposition in
favor of defendant, 16481 Ten Mile Road, L.L.C. (“Ten Mile”). We affirm.
Plaintiff slipped and fell on a snowy and icy sidewalk outside her apartment building,
owned and operated by Ten Mile, sustaining back injuries. On appeal, plaintiff argues that the
trial court should not have allowed Ten Mile to avail itself of the open and obvious defense in
order to avoid liability for violation of a statutory duty, and that genuine issues of material fact
exist regarding whether the dangerous condition presented by the snowy and icy sidewalk was
open and obvious, and whether special aspects of the sidewalk rendered it unreasonably
dangerous. We disagree with all three claims.
This Court reviews a trial court’s decision on a motion for summary disposition de novo.
Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). A motion brought pursuant to
MCR 2.116(C)(10) should be granted when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Miller v Purcell, 246 Mich App 244,
246; 631 NW2d 760 (2001).
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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It is undisputed that plaintiff was Ten Mile’s tenant and, thus, its invitee. See Stanley v
Town Square Coop, 203 Mich App 143, 149; 512 NW2d 51 (1993). An invitor has a common
law duty to exercise reasonable care to protect an invitee from an unreasonable risk of harm
caused by a dangerous condition on the land. Lugo v Ameritech Corp Inc, 464 Mich 512, 516;
629 NW2d 384 (2001). This basic duty to protect an invitee does not generally include removal
of open and obvious dangers, i.e., those dangers that are known to the invitee or are so obvious
that the invitee might reasonably be expected to discover them. Corey v Davenport College of
Business (On Remand), 251 Mich App 1, 3; 649 NW2d 392 (2002), quoting Riddle v McLouth
Steel Products Corp, 440 Mich 85, 96; 485 NW2d 676 (1992). The test to determine if a danger
is open and obvious is whether an average user with ordinary intelligence would have been able
to discover the danger and risk presented upon casual inspection. Joyce v Rubin, 249 Mich App
231, 238-239; 642 NW2d 360 (2002). The test is objective and the court should look to whether
a reasonable person in the plaintiff’s position would foresee the danger, not whether a particular
plaintiff should have known that the condition was hazardous. Corey, supra at 5.
Here, plaintiff knew or would reasonably be expected to discover the danger presented by
the snowy sidewalk; thus, the danger was open and obvious. By plaintiff’s own admissions, she
knew that it had snowed and rained the night before her accident. From the phone conversation
she had with her co-worker, plaintiff understood that the conditions of the roads hindered the
ability to travel. She even called into work based on this understanding. When her boyfriend,
Ronnie Carroll, returned from his first attempt to leave for work, he informed her of the
unfavorable weather conditions. With this knowledge, and at Carroll’s request for her assistance,
plaintiff elected to leave her apartment to help Carroll dig his car out from beneath the snow.
Realizing that she could not walk with stability on the sidewalk, plaintiff used Carroll’s arm to
help her traverse through the snow as they walked to Carroll’s vehicle. As she was walking back
alone, she slipped and fell. Plaintiff testified that she did not see the ice underneath the snow and
did not know that it was there until she slipped and fell on it, whereupon she testified that a
“[b]ig patch of ice” appeared that could not be “miss[ed].” Even if plaintiff did not see the ice
beneath the snow, a reasonable person knowing that it had rained the night before, on a cold,
Michigan December night, and that road conditions were unfit for driving that morning, would
have foreseen the danger presented by the snow-covered sidewalk. See Corey, supra; see, also,
Joyce, supra at 238-240. Therefore, we agree with the trial court’s determination that no
reasonable juror could have concluded that the dangerous condition of the sidewalk was not open
and obvious.
Further, we conclude that no special aspects made this open and obvious risk
unreasonably dangerous. Contrary to plaintiff’s argument on appeal, the condition of the
sidewalk was not “effectively unavoidable.” Plaintiff could have elected to remain inside her
apartment, could have caused the sidewalk to be cleared, or could have walked around the
sidewalk. Further, walking on the sidewalk did not give rise to a substantial risk of death or
severe injury. See Lugo, supra at 518-519.
Finally, plaintiff argues that 10 Mile had a statutory duty, pursuant to MCL 554.139, to
maintain the premises in reasonable repair and such duty cannot be circumvented by the open
and obvious doctrine. However, as the trial court noted, plaintiff failed to plead such violation in
either her complaint or amended complaint; accordingly, the trial court did not have authority to
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find in plaintiff’s favor with regard to this issue. See Reid v Dept of Corrections, 239 Mich App
621, 630; 609 NW2d 215 (2000).
Given our resolution of the other issues on appeal in favor of Ten Mile, we need not
address Ten Mile’s argument that plaintiff released it from liability for her injuries under the
terms of the lease agreement.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
/s/ Harold Hood
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