ESTATE OF BERNADINE BUTLER V EDWARD W SPARROW HOSPITAL ASSN
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STATE OF MICHIGAN
COURT OF APPEALS
JAN C. JEPSON, Personal Representative of the
Estate of BERNARDINE ANNE BUTLER,
UNPUBLISHED
January 24, 2008
Plaintiff-Appellant,
V
No. 275748
Ingham Circuit Court
LC No. 06-000227-NO
EDWARD F. SPARROW HOSPITAL
ASSOCIATION,
Defendant-Appellee.
Before: Bandstra, P.J., and Donofrio and Servitto, JJ.
PER CURIAM.
In this premises liability action, defendant appeals by leave granted from the circuit
court’s order denying its motion for summary disposition. Because a reasonable factfinder could
only conclude that the danger presented was open and obvious and contained no special aspects,
we reverse and remand. This appeal has been decided without oral argument pursuant to MCR
7.214(E).
Plaintiff tripped and fell when she stepped on an expansion joint in defendant’s parking
structure. The expansion joint has a uniform channel or depression running along its length that
is less than four inches wide and roughly one inch deep. The trial court denied defendant’s
motion for summary disposition on the ground that a question of fact existed regarding whether
the danger created by the expansion joint was open and obvious. MCR 2.116(C)(10).
This Court reviews a trial court’s decision on a motion for summary disposition de novo
as a question of law. Ardt v Titan Ins Co, 233 Mich App 685, 688; 593 NW2d 215 (1999). “In
reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions,
affidavits, and other relevant documentary evidence of record in the light most favorable to the
nonmoving party to determine whether any genuine issue of material fact exists to warrant a
trial.” Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004).
Generally, an invitor’s duty to protect invitees does not extend to the removal of open and
obvious dangers. Ghaffari v Turner Construction Co, 473 Mich 16, 21-22; 699 NW2d 687
(2005). However, if there are special aspects “that differentiate the risk from typical open and
obvious risks so as to create an unreasonable risk of harm,” then an invitor does have a duty to
undertake reasonable precautions to protect invitees. Lugo v Ameritech Corp, 464 Mich 512,
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517; 629 NW2d 384 (2001). Only special aspects “that give rise to a uniquely high likelihood of
harm or severity of harm if the risk is not avoided” will place a condition outside the open and
obvious danger doctrine. Id. at 519. Lugo specifically identified two possible special aspects:
unavoidability and potential for death or serious injury. Id. at 518. The particular circumstances
of a plaintiff are not relevant to the inquiry of whether a danger is open and obvious. Rather, a
danger is open and obvious if it is reasonable to expect that an average person with ordinary
intelligence would have discovered the danger on casual inspection. Teufel v Watkins, 267 Mich
App 425, 427; 705 NW2d 164 (2005).
The photographic evidence shows a minor irregularity in the walking surface of a parking
structure. In Lugo, our Supreme Court concluded that the open and obvious defense applied to a
slip-and-fall involving a pothole in a parking lot. Lugo, supra at 520. Helpful also to our
analysis is the Legislature’s enactment of MCL 691.1042a(2), commonly known as the two-inch
rule, restoring immunity to municipalities for injuries caused by sidewalk defects less than two
inches in height. While inapplicable in a private action such as the instant one, the statute
suggests a legislative determination that no liability should follow from small defects in walking
surfaces. Because the irregularity in this case is less than four inches wide and only about one
inch deep, an average person of reasonable intelligence who was paying minimal attention would
be able to step over, or even on, the expansion joint without significant risk.
Plaintiff fails to show that the expansion joint was not open and obvious, or that special
aspects existed that would make the open and obvious defense inapplicable. Plaintiff’s
statements that the expansion joint’s color “is virtually the same . . . as” and “close to” the color
of the surrounding concrete are plainly contradicted by the parties’ photographic exhibits. If, per
Lugo, potholes in parking lots are open and obvious, in that an ordinarily prudent person should
be able to see and avoid them, then the expansion joint in this parking structure must also be
open and obvious. Further, although potholes might be considered defects in pavement requiring
repair, expansion joints are not defects in the same sense. In fact, plaintiff does not suggest that
the joint needed repair or that its design was flawed. The trial court erred in concluding that a
question of fact existed regarding whether the expansion joint was open and obvious.
With respect to special aspects, plaintiff’s argument based on plaintiff’s husband’s
deposition testimony that the lighting was “questionable” at approximately 3:15 p.m. on an
August afternoon is not the same as explicitly arguing that the area was dimly lit. Even if the
area were dimly lit, however, it would not modify the situation regarding the expansion joint so
as to “give rise to a uniquely high likelihood of harm or severity of harm.” Lugo, supra at 519.
Thus, the questionable lighting does not rise to the level of a special aspect. Similarly, the
parking structure’s lack of a separate pedestrian route cannot reasonably be seen as a special
aspect creating a uniquely high likelihood of harm, under Lugo, supra, but rather is a normal
aspect of parking garages in general. And the absence of precautionary paint for a putative
hazard that is assumed, in the first instance, to be open and obvious cannot be seen as a special
circumstance.
For comparison purposes, we refer to Lugo, supra, where our Supreme Court presented
the hypothetical situation of a wet floor in a commercial building whose only exit required
traversing the wet surface. Lugo, supra at 518. The hazardous condition of the wet floor was
open and obvious, but unavoidability nonetheless created an unreasonably dangerous situation.
Id. Here, the expansion joint was not unavoidable in the same sense as the wet floor in the Lugo
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hypothetical because a person could avoid an expansion joint by simply stepping over it. In sum,
the alleged unavoidability in the case of the expansion joint is not a special aspect that removed
the joint from application of the open and obvious doctrine.
Reversed and remanded for entry of an order of summary disposition in favor of
defendant. We do not retain jurisdiction.
/s/ Richard A. Bandstra
/s/ Pat M. Donofrio
/s/ Deborah A. Servitto
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