DEBRA JEAN JONES V HARVEY OVERBEEK
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STATE OF MICHIGAN
COURT OF APPEALS
DEBRA JEAN JONES,
UNPUBLISHED
July 12, 2005
Plaintiff-Appellant,
v
No. 261885
Ottawa Circuit Court
LC No. 04-008353-NO
HARVEY OVERBEEK and KAREN
OVERBEEK,
Defendants-Appellees.
Before: Murphy, P.J., and Sawyer and Donofrio, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order granting summary disposition in favor
of defendants pursuant to MCR 2.116(C)(10) in this premises liability action. We affirm.
Plaintiff tripped over a blue, quarter-inch thick, plastic-covered wire dog tether while
exiting the rear door of her sister’s home after she decided to step outside for a moment to smoke
a cigarette. Plaintiff, who resides in Illinois, was at her sister’s home in Michigan to pick her up
for a family vacation and had been there an hour or two when the incident occurred. The dog
tether was stretched across the floor and over the doorway’s threshold, with one end of the tether
secured outside the home and the other end of the tether attached to a coat hook inside the house
behind the rear door. The indoor end of the tether is typically attached to the coat hook when the
dog is not on the tether as was the situation when plaintiff tripped. A “utility” room is the last
area one walks through before leaving the home via the rear doorway. There is a pantry in the
utility room and a laundry area. Plaintiff was walking from the utility room heading outside as
her sister was ironing in the utility room; the room had a single light that was turned on. Plaintiff
mentioned to her sister that she was stepping outside for a smoke a cigarette. It was dark outside
when plaintiff fell and the weather was dry. During plaintiff’s visit, and before the accident
occurred, plaintiff had not been in the vicinity of the rear doorway and had not observed the
tether. Plaintiff’s feet became entangled in the tether, and she tripped, falling forward over three
concrete steps and onto the concrete walkway. The door had been open at the time plaintiff
attempted to exit. She was taken by ambulance to a local hospital for treatment. Plaintiff
suffered an injury consisting of two tibia fractures near her left knee that required surgery, the
placement of a plate and stabilizing pins in her leg, and extensive rehabilitation.
The focus of this case is on whether plaintiff knew of the potential hazard created by the
dog tether considering plaintiff’s previous visits to the home. There are also arguments
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regarding whether the hazard was open and obvious. Of course, these matters are posed to us in
the context of a motion for summary disposition. Facts additional to those referenced above
must also be examined relative to the issues presented on appeal. There are four different factual
sources that we shall consider, i.e., plaintiff’s recorded and transcribed interview with
defendants’ insurer, plaintiff’s deposition testimony, plaintiff’s affidavit, and the deposition
testimony of plaintiff’s sister.
In the interview with the insurer, plaintiff indicated that she had visited her sister at the
home many times in the past; however, it had been three or four years since the last visit. Prior
to that last visit three or four years ago, plaintiff visited her sister’s home about once a year since
the death of their mother. Plaintiff was familiar with the area where she fell. She had seen the
dog tether lying across the threshold on previous visits, although it was not always present. Her
sister had used the dog tether in the manner described above for quite some time. Plaintiff stated
that she did not notice the tether before tripping over it; she had not personally observed it on the
evening of the fall. Plaintiff also informed the interviewer that, as soon as she began to trip, she
realized that she “had caught that dog leash.” She was unsure whether the tether was flush with
the floor and threshold or whether it was somewhat elevated.
In plaintiff’s affidavit, she averred that she had been to her sister’s home about a dozen
times over a period of eighteen years.1 She claimed that the rear door at issue opens inward and
that the tether, when attached to the hook behind the door, is not capable of being seen by a
person exiting the home. Plaintiff further averred that there is a dark-colored throw rug just
inside the doorway. On the dozen or so visits over the previous eighteen years, she exited the
home through the rear door only about three or four times, as she typically used another door in
the kitchen. Plaintiff asserted that the fall occurred around 9:30 or 10:00 p.m. Plaintiff informed
her sister, who was in the utility room, that she was stepping outside to smoke a cigarette, as
smoking was not allowed in the house. Her sister did not warn her to watch out for the dog
tether.2 Plaintiff conceded that she had seen the dog tether in the area on past visits, although not
on this visit, and she had not been in the area around the rear door that evening until the time of
the accident. Plaintiff maintained that she watched her “footing” as she walked out the door but
did not see the dog tether. We note that, when asked in the insurer’s interview, plaintiff stated
that she was not looking down, and she further stated, “You know, you just kind of walk out the
door because you know the area or you feel you know it.” In the affidavit, plaintiff additionally
averred that, because the threshold was illuminated by only a single light bulb, the illumination
of which was obscured by a cabinet, the vestibule was too dark to see the dog tether on the
1
Plaintiff’s sister testified in her deposition that plaintiff probably visited twenty to thirty times
over the years.
2
Plaintiff’s sister confirmed that plaintiff rarely used the rear door in the utility room when
visiting, but rather typically used a backdoor in the kitchen. Plaintiff used the exit in the utility
room on this occasion because her sister was ironing in the utility room, and they were going to
chat while plaintiff smoked outside with the door open. The sister acknowledged that she did not
warn plaintiff about the tether.
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ground.3 Plaintiff claimed that there was no outside lighting to help illuminate the doorway area.
Finally, plaintiff averred that at the time of her interview with the insurer she had recently had
the knee surgery performed and was taking narcotic pain medication. Plaintiff indicated to the
interviewer that she was on medication and groggy and was half asleep when contacted by the
interviewer. This is also reflected in the transcribed interview. Additionally, as reflected in both
the affidavit and the transcribed interview, plaintiff informed the interviewer that the pain
medication and the pain itself were affecting her concentration. In the affidavit, plaintiff
complained that she was never given a copy of the statement and never asked to clarify it or
attest to its accuracy.
With respect to her deposition testimony, plaintiff similarly indicated that she had visited
her sister about twelve times in an eighteen-year period and that she had used the rear door a
total of about three or four times during all of these visits. She also testified that the doorway
threshold was dark and was not lit up by the indoor light. In sum, the deposition testimony
mimicked most of the information provided in the interview and affidavit, along with delving
deeply into the nature of the injuries, which is not relevant for purposes of our analysis.
In defendants’ motion for summary disposition, it was argued that plaintiff was a licensee
in her sister’s home at the time of the accident and that, as such, defendants only owed a duty to
warn plaintiff of unreasonably dangerous conditions known by the defendants and of which
plaintiff did not know or have reason to know. Defendants argued that, on the basis of previous
trips to the home, plaintiff had become aware that the dog tether was at times stretched across the
threshold of the rear door. Therefore, defendants had no duty to warn plaintiff of the dog tether
of which plaintiff was already aware. Defendants additionally argued that the tether was open
and obvious.
The trial court, citing plaintiff’s deposition testimony and mainly the insurance interview,
and viewing the evidence in a light most favorable to plaintiff, concluded that plaintiff knew that
the dog tether was used in the particular doorway and simply forgot to check for it. The court
granted the motion for summary disposition on the basis of plaintiff’s previous knowledge of the
hazard.
On appeal, plaintiff argues that the trial court erred in finding that the tether was open and
obvious and that, even if open and obvious, special aspects existed. She also contends that her
past knowledge of the tether’s existence and placement did not put her on notice that it was there
at the specific time the accident took place. Defendants argue that the trial court did not err in
3
Plaintiff’s sister testified that the pantry blocks some of the light, causing shadowing on the
ground. Her sister also stated that the dog tether was obvious “if you were looking for it.” The
sister further indicated that she herself had to look for the tether because she was always getting
her feet or walker tangled in it. She testified that the utility room was illuminated by two sixtywatt light bulbs. Plaintiff’s sister could not actually see plaintiff falling from her vantage point
in the utility room. According to plaintiff’s sister, plaintiff had not been in the vicinity of the rear
door prior to the accident on this particular visit.
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finding that plaintiff knew or had reason to know of the presence of the tether on the basis of
prior visits to the residence.
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Koenig v City of South Haven, 460 Mich 667, 674; 597 NW2d 99 (1999). Issues of law are also
reviewed de novo. Mahaffey v Attorney General, 222 Mich App 325, 334; 564 NW2d 104
(1997).
MCR 2.116(C)(10) provides for summary disposition where there is no genuine issue as
to any material fact, and the moving party is entitled to judgment or partial judgment as a matter
of law. A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if
the affidavits or other documentary evidence show that there is no genuine issue in respect to any
material fact. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). In
addition, all affidavits, pleadings, depositions, admissions, and other documentary evidence filed
in the action or submitted by the parties are viewed in a light most favorable to the party
opposing the motion. Id.
Where the burden of proof on a dispositive issue rests on a
nonmoving party, the nonmoving party may not rely on mere allegations or denials in the
pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine
issue of material fact exists. Id. Where the opposing party fails to present documentary evidence
establishing the existence of a material factual dispute, the motion is properly granted. Id. at
363. “A genuine issue of material fact exists when the record, giving the benefit of reasonable
doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.”
West v General Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003) (citations omitted).
We first note, as argued by defendants, that contrary to plaintiff’s argument, the trial
court did not rule that the dog tether was open and obvious. Rather, the trial court concluded that
plaintiff knew or was aware of the tether, which knowledge was predicated on previous visits.
There was no ruling by the trial court on defendants’ separate argument that the hazard was open
and obvious as it was unnecessary to reach that issue. We decline to address the open and
obvious danger doctrine4 and the related “special aspects” argument because those matters were
4
Landowners have no duty to safeguard licensees from open and obvious dangers. Pippin v
Atallah, 245 Mich App 136, 143; 626 NW2d 911 (2001). Whether a particular danger is open
and obvious is dependent on whether it is reasonable to expect an average user of ordinary
intelligence to discover the danger upon casual inspection. Eason v Coggins Mem Christian
Methodist Episcopal Church, 210 Mich App 261, 264; 532 NW2d 882 (1995). In determining
whether an alleged dangerous condition is open and obvious, such a determination focuses on the
characteristics of a reasonably prudent person. Mann v Shusteric Enterprises, Inc, 470 Mich
320, 329 n 10; 683 NW2d 573 (2004). Because the test is objective, courts look not to whether
a particular plaintiff should have known that the condition was hazardous, but to whether a
reasonable person in his position would foresee the danger. Joyce v Rubin, 249 Mich App 231,
238-239; 642 NW2d 360 (2002). The general rule is that a premises possessor is not required to
protect a person 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
(continued…)
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not decided by the trial court and because it is unnecessary to do so in light of our holding
affirming the trial court’s ruling.
Plaintiff was a social guest while in her sister’s home and is properly deemed a “licensee”
under the circumstances and the law. Stitt v Holland Abundant Life Fellowship, 462 Mich 591,
596; 614 NW2d 88 (2000) (social guests are typically licensees as a licensee is one who is
privileged to enter land of another by virtue of possessor’s consent); DeBoard v Fairwood Villas
Condominium Ass’n, 193 Mich App 240, 241; 483 NW2d 422 (1992)(a plaintiff who tripped in
his sister’s condominium was a licensee). A landowner or premises possessor only owes a
licensee a duty to warn the licensee of any hidden dangers that the owner or possessor knows or
has reason to know of, if the licensee does not know or has no reason to know of the dangers and
risks involved. Stitt, supra at 596; DeBoard, supra at 242. There is no duty of inspection, duty
of repair, or duty of affirmative care to make the premises safe for a licensee’s visit. Stitt, supra
at 596; Burnett v Bruner, 247 Mich App 365, 373; 636 NW2d 773 (2001). A social guestlicensee assumes the ordinary risks associated with a visit. Stitt, supra at 596.
While we acknowledge that the hazard caused by the dog tether, which can be moved and
which was not always stretched across the doorway floor, is different from situations where a
hazard is more permanent in nature, the evidence reflected that plaintiff knew or had reason to
know that the tether could very well be in the area where the accident occurred. There is no
evidence suggesting that plaintiff was placed on notice by observations on the day of the
accident, but the indisputable fact that plaintiff was aware of past occasions on which the dog
tether was present in the doorway and her personal observation of the tether so placed eliminated
her sister’s legal obligation to warn plaintiff of the hazard. Plaintiff was familiar with her sister’s
practice of tethering the dog or leaving the tether attached to a hook inside the home. Although
it had been several years since plaintiff’s last visit, there was no evidence indicating that she did
not recall the past presence of the tether in the doorway at various times; plaintiff was simply not
focusing on it while exiting the home to smoke a cigarette. Indeed, just as plaintiff began to trip,
she immediately realized that she was tripping over the tether. If it can be successfully argued
that knowledge of a hazard is not generally determinative where one forgot about the hazard or
was not focused on the hazard, a “knowledge” defense would become nonexistent because
forgetfulness or inattentiveness necessarily play a role in causing the injury where the hazard was
known, otherwise the party would not have physically struck or come into contact with the
hazard. Viewing the evidence in a light most favorable to plaintiff, we hold that the trial court
did not err in dismissing the action.
Affirmed.
/s/ William B. Murphy
/s/ David H. Sawyer
/s/ Pat M. Donofrio
(…continued)
undertake reasonable precautions to protect others from that risk. Lugo v Ameritech Corp, Inc,
464 Mich 512, 517; 629 NW2d 384 (2001).
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