GERALD T ELLIS V STAMPEDE MGT INC
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STATE OF MICHIGAN
COURT OF APPEALS
GERALD T. ELLIS,
UNPUBLISHED
April 15, 2008
Plaintiff-Appellant,
v
No. 277014
Oakland Circuit Court
LC No. 2006-074956-NF
STAMPEDE MANAGEMENT, INC., and
HOWARD O’BRIEN,
Defendants-Appellees,
and
WENDY’S MANAGEMENT SERVICES, L.L.C.,
and WENDY’S OF MICHIGAN, INC.,
Defendants.
Before: Murray, P.J., and Sawyer and Cavanagh, JJ.
PER CURIAM.
In this premises liability action, plaintiff appeals as of right the order of dismissal
resulting from the trial court’s grant of defendants’, Stampede Management, Inc., and Howard
O’Brien, motion for summary disposition. We affirm.
I.
Facts
Plaintiff’s action arises from a trip and fall that occurred in the lobby of a fast-food
restaurant. According to plaintiff, the lighting in the restaurant was adequate to allow him to
negotiate the premises. Plaintiff also testified that the ceramic tile floor of the restaurant lobby
was free from slippery substances, and denied that anything obstructed his view of the chain that
caused him to trip and fall.
To ensure that the queue of customers waiting to place a food order was ergonomically
efficient and orderly, the restaurant lobby was equipped with a serpentine divider. This
equipment, which consisted of iron railings, resembled a fence, corral, or maze. The serpentine
queue divider had two entrances. One entrance would have required plaintiff to follow the maze
to reach the counter. The other entrance would have allowed plaintiff more immediate access to
the counter. Plaintiff tripped and fell over a chain that had been draped over the entrance that
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would have given him more immediate access to the counter. Plaintiff testified in his deposition
as to the events leading up to his fall:
Q.
So, you were – when you were walking towards the counter to go to this
person, I assume you were going to place your order, would that be fair to
say?
A.
Yes.
Q.
So, when you were walking to the counter to place your order, what were
you looking at?
A.
Well, I was looking at where I was walking.
Q.
Okay. And what was that specifically that you were looking at while you
were walking.
A.
The floor and then I would look up to the counter.
Q.
And when you say you were looking up at the counter, did you look at the
menu any additional time, other than you said you looked at the menu
when you first came in.
A.
I did look at the menu when I first came in. I realized the menu was so far
away, you know, it’s a reflex. I looked at the menu, I looked what was up
there and then I look at the counter, I see the young man sort of motioning
me to come forward so I start to come forward and my eyes, I could have
went on the menu. I probably went on the menu again, but realized that as
I’m walking I’m trying to think of what I’m going to order, the selection
I’m going to make at the time.
Q.
Okay. Was there anything that would have obstructed your view,
anything preventing you from seeing this rope here, this chain here, what
we’ve described as the chain?
A.
I don’t believe so, no.
The trial court granted defendants’ motion for summary disposition, holding that
defendants had no duty to warn of any danger because the condition was open and obvious, and
presented no special aspects as defined by case law. This appeal followed.
II.
Analysis
Plaintiff argues that in granting defendants’ motion, the trial court erred in concluding
that the hazard at issue was open and obvious, and further erred by applying the open and
obvious hazard doctrine to bar what plaintiff characterizes as an ordinary negligence claim. We
disagree.
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This Court reviews a trial court’s ruling on a motion for summary disposition de novo.
City of Taylor v Detroit Edison Co, 475 Mich 109, 115; 715 NW2d 28 (2006). Pursuant to a
motion brought under MCR 2.116(C)(10), this Court construes the pleadings, admissions and
other evidence submitted by the parties in a light most favorable to the non-moving party.
Brown v Brown, 478 Mich 545, 551-552; 739 NW2d 313 (2007). Because a “mere promise” to
offer factual support for a party’s position at trial is insufficient to overcome a motion brought
under MCR 2.116(C)(10), this Court considers “the substantively admissible evidence actually
proffered in opposition to the motion.” Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817
(1999). Summary disposition is properly granted under MCR 2.116(C)(10) where there is no
genuine issue of material fact for trial, except for the amount of damages, and the moving party
is entitled to judgment as a matter of law. Zsigo v Hurley Med Ctr, 475 Mich 215, 220; 716
NW2d 220 (2006).
To set forth a prima facie premises liability case, a plaintiff must establish facts
supporting the following elements: “(1) the defendant owed the plaintiff a duty, (2) the
defendant breached that duty, (3) the breach was the proximate cause of the plaintiff’s injury,
and (4) the plaintiff suffered damages.” Benton v Dart Properties, 270 Mich App 437, 440; 715
NW2d 335 (2006). Further, “in the absence of a legal duty there is no actionable negligence.”
Reed v Michigan Metro Girl Scout Council, 201 Mich App 10, 14; 506 NW2d 231 (1993).
The duty owed by a premises possessor to a visitor to the property depends on whether
the visitor had the status as an invitee, licensee, or trespasser. Stitt v Holland Abundant Life
Fellowship, 462 Mich 591, 596; 614 NW2d 88 (2000). Where, as here, a visitor holds the status
of invitee, or one who has entered the premises for the purpose of transacting business, the
premises possessor has the duty to warn the invitee of known dangers. This duty “requires the
landowner to inspect the premises and, depending upon the circumstances, make any necessary
repairs or warn of any discovered hazards.” Stitt, supra at 607. The duty owed by a premises
possessor to an invitee does not extend to removal of open and obvious hazards, or warning the
invitee about such conditions. Lugo v Ameritech Corp, Inc, 464 Mich 512, 522; 629 NW2d 384
(2001). Our Supreme Court defined open and obvious hazards as “dangers [that are] known to
the invitee and are so obvious that the invitee might reasonably be expected to discover them.”
Lugo, supra at 516. Rather than constituting an exception to the duty ordinarily owed by
premises possessors to invitees, the open and obvious hazard doctrine is “an integral part of . . .
that duty.” Id.
When presented with the issue of whether a condition was open and obvious, a reviewing
court considers the objective nature of the premises, and decides whether it would be “reasonable
to expect an average user with ordinary intelligence to discover the danger upon casual
inspection.” Eason v Coggins Memorial Christian Methodist Episcopal Church, 210 Mich App
261, 264; 532 NW2d 882 (1995). See, also, Lugo, supra at 523. If the court determines that the
defect is not latent, but is instead open and obvious, then the court considers whether any special
aspects of the condition render the hazard unreasonably dangerous. Id. “Only 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. Where special aspects make an open and obvious condition unreasonably dangerous, “the
premises possessor has a duty to undertake reasonable precautions to protect invitees from that
risk.” Id. at 517.
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In this case, the parties submitted for the trial court’s consideration photographs of the
chain that blocked the entrance to the serpentine divider. At his deposition, plaintiff testified to
what was evident in all of the photographs, specifically, the presence of a clearly visible chain
draped across a passageway in a well-lit area. Plaintiff admitted that there was nothing
interfering with his ability to see the chain, i.e., the lighting was good, there were no customers
blocking his view, and no other physical impediments to his viewing the chain. Although
plaintiff argues that because of the high customer volume of defendants’ restaurant1 there must
have been other similar accidents, plaintiff failed to come forward with admissible evidence to
support that bare allegation in response to defendants’ motion for summary disposition. MCR
2.116(G)(4). Plaintiff failed to present evidence that would cause reasonable minds to differ
regarding whether it would be “reasonable to expect an average user with ordinary intelligence to
discover the danger upon casual inspection.” Eason, supra at 264. Accordingly, the trial court
correctly decided that the chain was open and obvious as a matter of law. Lugo, supra at 520,
521.2
Moreover, plaintiff failed to submit any evidence to demonstrate that a “special aspect”
of the chain rendered it unreasonably dangerous. Lugo, supra at 523, 524. In Lugo, the plaintiff
argued that she did not notice the hazard, a pothole, because a truck diverted the plaintiff’s
attention away from her path of travel. Id. at 514-515. Reasoning that there was nothing unusual
about a truck being driven in a parking lot, the Lugo Court held that the plaintiff’s distraction
would not preclude the application of the open and obvious hazard doctrine. Id. at 522.
In the present case, there was nothing about either the chain itself or the cashier’s act of
beckoning plaintiff that imposed an “unreasonably high risk of severe harm.” Lugo, supra at
518. The chain is not analogous to “an unguarded thirty foot deep pit in the middle of a parking
lot” described by the Lugo Court as a hazard that would “present such a substantial risk of death
or severe injury” that it would remain an unreasonably dangerous, albeit open and obvious,
hazard. Lugo, supra at 518. Id.
1
At the time plaintiff was at the restaurant, however, there were no other individuals waiting in
line.
2
Plaintiff relies on Pippin v Atallah, 245 Mich App 136; 626 NW2d 911 (2001), for the
proposition that the question of whether the chain was open and obvious was an issue properly
decided by the jury. However, Pippin is not similar at all to this case, as it involved a thin, 65foot length of chain that stretched across two light poles at an unusual angle in an outdoor
parking lot. Id. at 143-144. The chain in Pippin was not placed at the parking lot entrance
parallel to the sidewalk, and the chain did not demarcate any commonly recognizable area. Id. at
143. On the basis of this and other evidence, which included testimony from multiple witnesses
and multiple incidents, this Court concluded that there was a question of fact for the jury to
decide regarding whether the chain at issue was an open and obvious hazard. Id. at 143-144.
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Pedestrian traffic control devices, such as the one at issue in this case, are “everyday
occurrences” that “ordinarily should be observed by a reasonably prudent person.” Lugo, supra
at 523. Additionally, the condition at issue here was not “effectively unavoidable.” Plaintiff
could have easily avoided the chain by entering the serpentine pathway, which was unobstructed,
in the normal fashion instead of through the barrier. Although plaintiff argues that he performed
a “casual inspection” of the premises but was still injured when he tripped over the chain, the
relevant inquiry focuses “on the objective nature of the condition of the premises at issue, not on
the degree of care used by the plaintiff.” Lugo, supra at 524. Because the chain was open and
obvious, and because no special aspects of the chain rendered it unreasonably dangerous, the trial
court did not err in granting defendants’ motion for summary disposition.
Plaintiff also argues that the trial court erred when it applied the open and obvious hazard
doctrine to bar his ordinary negligence claim. Again, we disagree.
Plaintiff is correct that the open and obvious hazard doctrine does not apply to ordinary
negligence claims, Laier v Kitchen, 266 Mich App 482, 484; 702 NW2d 199 (2005), for “[t]he
open and obvious doctrine is specifically applicable to a premises possessor.” Ghaffari v Turner
Const Co, 473 Mich 16, 23; 699 NW2d 687 (2005). An action sounds in premises liability
where the injury results from a condition on the land, as opposed to activity that created the
condition. James v Alberts, 464 Mich 12, 18-19; 626 NW2d 158 (2001).
Plaintiff contends that defendants’ cashier waived him forward, distracting him and
causing him to trip over the chain. Specifically, plaintiff asserts that the cashier’s act in
distracting him constituted ordinary negligence independent of the premises liability context.
Further, plaintiff argues that the cashier’s failure to warn plaintiff of the presence of the chain
constituted ordinary negligence as well.
With respect to plaintiff’s argument that the cashier’s distraction of plaintiff was a basis
for an ordinary negligence claim, “mere distractions are not sufficient to prevent application of
the open and obvious danger doctrine.” Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich
App 710, 716; 737 NW2d 179 (2007). To the extent that plaintiff argues that the cashier’s
failure to warn him about the chain constituted ordinary negligence, this contention is wholly
devoid of merit. Longstanding precedent is clear that there is no duty to warn of an open and
obvious hazard in the premises liability context. See Riddle v McLouth Steel Products, 440 Mich
85, 95-96; 485 NW2d 676 (1992). As the case cited by plaintiff makes clear, where, as here, a
claim involves the liability of the possessor of land to a business invitee, the claim sounds in
premises liability. Laier, supra at 491. Because plaintiff contended that defendants, as
possessors of the land, were liable to plaintiff, a business invitee or customer, and because the
chain was an open and obvious hazard, the cashier, as the premises possessor’s representative,
had no duty to warn plaintiff about it. The scope of the duty owed by a premises possessor to a
business invitee is precisely what the open and obvious hazard doctrine was formulated to
delineate. Because plaintiff’s position directly contradicts existing Michigan law, his argument
fails.
Finally, at his deposition, plaintiff unequivocally testified that the chain, and only the
chain, was the cause of the accident that resulted in his injury. Plaintiff is bound by his
unequivocal deposition testimony. Kaufman v Payton PC v Nikkila, 200 Mich App 250, 256;
503 NW2d 728 (1993). Plaintiff may not contradict his testimony in the attempt to recast his
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action as one sounding in ordinary negligence in order to avoid the application of the open and
obvious hazard doctrine.
Affirmed.
/s/ Christopher M. Murray
/s/ David H. Sawyer
/s/ Mark J. Cavanagh
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