PAULETTE M HAMILTON V WENDETROIT LTD
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STATE OF MICHIGAN
COURT OF APPEALS
PAULETTE M. HAMILTON,
UNPUBLISHED
May 3, 2005
Plaintiff-Appellee,
v
No. 251842
Wayne Circuit Court
LC No. 02-204442-NO
WENDETROIT, LTD.,
Defendant-Appellant.
Before: Wilder, P.J., and Fitzgerald and Kelly, JJ.
WILDER, P.J., dissenting.
I respectfully dissent. The general rule in a premises liability case “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, Inc, 464 Mich 512, 517; 629 NW2d 384 (2001). “[W]ith regard to open
and obvious dangers, 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.” Id. at 517-518 (emphasis added). “[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 (emphasis
added and footnote omitted).
I would find that, in the present case, the evidence does not support the conclusion that
there were special aspects to the open and obvious danger posed by the wet and dirty floor. The
fact that the floor had been safely navigated at least once (and perhaps more) in the half-hour
before the plaintiff’s fall establishes that a uniquely high likelihood of harm or severity of harm
was not present. The fact that there was only one women’s restroom available in the restaurant
and that the wet and dirty floor could not be avoided is insufficient by itself to establish special
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aspects to the risk.1 Rather, the fact that the risk is unavoidable is pertinent only if the situation
presents a uniquely high likelihood or uniquely high severity of harm occurring from the inability
of the plaintiff to avoid the risk. The evidence in this case fails to establish anything unique
about the likelihood or severity of harm that could result from a slip and fall on defendant’s wet
and dirty bathroom floor, and therefore, I would find that defendant’s motion for summary
disposition should have been granted.
/s/ Kurtis T. Wilder
1
See Lugo, supra at 518-519, n 2.
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