LAWRENCE LOVELAND V SPECTRUM HEALTH
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STATE OF MICHIGAN
COURT OF APPEALS
LAWRENCE LOVELAND,
UNPUBLISHED
November 18, 2008
Plaintiff-Appellant,
v
SPECTRUM HEALTH, SPECTRUM HEALTH
HOSPITAL, and SCHINDLER ELEVATOR
CORPORATION,
No. 278497
Kent Circuit Court
LC No. 05-012014-NO
Defendants-Appellees.
Before: Markey, P.J., and Sawyer and Kelly, JJ.
PER CURIAM.
Plaintiff appeals by right in this premises liability case the trial court’s May 4, 2007,
opinion and order, which granted all defendants summary disposition and denied the motion of
defendants Spectrum Health and Spectrum Health Hospital1 to file a cross-complaint against
defendant Schindler Elevator Corporation. We affirm.
Plaintiff fractured his left index finger after the doors of a freight elevator at Spectrum
Health Hospital’s Butterworth Campus closed on his hand. Plaintiff filed suit against Spectrum
asserting that Spectrum was negligent in failing to properly inspect, maintain, warn, and take
other reasonable precautions to protect invitees from dangerous conditions on the premises.
Because there was a contract between Schindler and Spectrum to have Schindler inspect and
maintain the freight elevator, plaintiff also asserted that Schindler was negligent in carrying out
its duties under the contract, and the elevator was defective.2
We review de novo a trial court’s decision to grant summary disposition. Coblentz v
Novi, 475 Mich 558, 567; 719 NW2d 73 (2006). We review the record in the same manner as
1
The two Spectrum defendants are referred to as “Spectrum” and will be treated as one entity for
purposes of this opinion.
2
On appeal, plaintiff raises no issue with respect to the grant of summary disposition awarded to
Schindler. As such, we affirm summary disposition in Schindler’s favor.
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the trial court to determine whether the movant was entitled to judgment as a matter of law.
Morales v Auto-Owners Ins, 458 Mich 288, 294; 582 NW2d 776 (1998).
Summary disposition was granted here under MCR 2.116(C)(10). A motion under MCR
2.116(C)(10) tests the factual sufficiency of the complaint. Maiden v Rozwood, 461 Mich 109,
119; 597 NW2d 817 (1999). In evaluating a motion for summary disposition brought under this
subsection, a reviewing court considers affidavits, pleadings, depositions, admissions and other
evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party
opposing the motion. Coblentz, supra at 567-568. Where the proffered evidence fails to
establish a genuine issue regarding any material fact, the moving party is entitled to judgment as
a matter of law. MCR 2.116(C)(10); MCR 2.116(G)(4); Coblentz, supra at 568.
The reviewing court should evaluate a motion for summary disposition under
MCR 2.116(C)(10) by considering the substantively admissible evidence actually
proffered in opposition to the motion. A reviewing court may not employ a
standard citing the mere possibility that the claim might be supported by evidence
produced at trial. A mere promise is insufficient under our court rules. [Maiden,
supra at 121.]
The tort of negligence is commonly recognized as having four elements: 1) a duty 2) the
breach of that duty 3) proximate cause and 4) damages. See Case v Consumers Power Co, 463
Mich 1, 6; 615 NW2d 17 (2000). The “duty” element pertains to “whether the defendant is
under any obligation to the plaintiff to avoid negligent conduct.” Moning v Alfono, 400 Mich
425, 437; 254 NW2d 759 (1977). Duty is a question of law for the court to decide. Id. at 436437.
Premises liability law has been summarized by the Michigan Supreme Court as follows:
Generally, a premises possessor owes a duty of care to an invitee to exercise
reasonable care to protect the invitee from an unreasonable risk of harm caused by
a dangerous condition on the land. This duty generally does not encompass a
duty to protect an invitee from “open and obvious” dangers. However, if there are
“special aspects” of a condition that make even an “open and obvious” danger
“unreasonably dangerous,” the premises possessor maintains a duty to undertake
reasonable precautions to protect invitees from such danger. To determine
whether a condition is “open and obvious,” or whether there are “special aspects”
that render even an “open and obvious” condition “unreasonably dangerous,” the
fact-finder must utilize an objective standard, i.e., a reasonably prudent person
standard. That is, in a premises liability action, the fact-finder must consider the
“condition of the premises,” not the condition of the plaintiff. [Mann v Shusteric
Enterprises, Inc, 470 Mich 320, 328-329; 683 NW2d 573 (2004) (citations
omitted).]
The test to determine if a danger is open and obvious is whether an average user of
ordinary intelligence would have been able to discover the danger and the risk presented upon
casual inspection. Joyce v Rubin, 249 Mich App 231, 238; 642 NW2d 360 (2002). Where a risk
is known to the invitee, there is no duty to protect or warn the invitee unless the possessor should
anticipate the harm despite knowledge of it on behalf of the invitee. Riddle v McLouth Steel
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Products Corp, 440 Mich 85, 96; 485 NW2d 676 (1992). In analyzing whether a possessor
should “anticipate the harm,” the Court in Lugo v Ameritech Corp, 464 Mich 512, 525; 629
NW2d 384 (2001), noted:
Simply put, there must be something out of the ordinary, in other words, special,
about a particular open and obvious danger in order for a premises possessor to be
expected to anticipate harm from that condition. Indeed, it seems obvious to us
that if an open and obvious condition lacks some type of special aspect regarding
the likelihood or severity of harm that it presents, it is not unreasonably
dangerous. We cannot imagine an open and obvious condition that is
unreasonably dangerous, but lacks special aspects making it so.
Therefore, an invitor’s duty to warn only remains if special aspects of the condition exist. Id. at
516-518.
We conclude after viewing the evidence in a light most favorable to plaintiff, there is no
genuine issue of material fact concerning the astragal’s function, or the open and obvious nature
of the freight elevator’s doors. The testimony supports the conclusion that plaintiff did not
believe, as argued, that the presence of the astragal indicated that the doors were equipped with a
safety device that would prevent them from closing on a person. Plaintiff tried to stop the doors
from closing with his left hand under the upper door. The astragal is a rubber edge on the bottom
of that door. Plaintiff’s action did not cause the doors to stop closing; yet, defendant left his
hand under the door while he tried to push the door up, using his right hand on the face of the
door. The only inference that can be argued or made is that plaintiff did not believe the astragal
was a safety device that would prohibit the doors from closing. Further, Justin McClung testified
that he did not think that the astragal was going to stop the doors from closing because the doors
were manually operated. He noted that there was nothing electronic or automatic about the
freight elevator. Troy Smith testified that he thought the freight elevator doors were equipped
with a safety device, but Smith also indicated that this conclusion was based on his experience
with elevators in general, not on his experience with freight elevators. Robert Perry appears to
be the only person who testified that he thought the doors might be equipped with a safety
device, but his testimony was unsure. We find that the average user of ordinary intelligence
would have been able to discover the danger and the risk presented upon casual inspection.
Therefore, viewing the evidence in a light most favorable to plaintiff, there is no genuine issue of
material fact concerning the astragal.
Moreover, the condition of the elevator doors was open and obvious. The sign inside the
elevator clearly indicated that “This is not a passenger elevator. No persons other than the
operator and the freight handlers are permitted to ride on this elevator.” These signs clearly put
all riders are on notice that this was not a passenger elevator. It is different. It is a freight
elevator. There is nothing about this freight elevator that would lead a reasonably prudent person
to believe that it operates the same as a passenger elevator. The freight elevator doors are
manually operated. Passenger elevators have power doors. The freight elevator’s two outer steel
doors close horizontally. On passenger elevators, the doors close vertically. In order to get these
outer freight elevator doors to close, a passenger must get on the elevator, then manually pull a
strap. The two outer doors close with the top and bottom doors simultaneously closing and
meeting in the middle. The inner door is made of wood and closes by manually pulling a strap as
well. This door is like a garage door, which closes from top to bottom. Both sets of doors will
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only close after someone starts to pull them shut. Freight elevators are also larger than passenger
elevators and do not have furnished interiors. Although a passenger elevator typically contains
an automatic safety device to prevent the doors from closing if obstructed, an average user of
ordinary intelligence would have discerned that since because this elevator is completely
different from a passenger elevator and the operation of its doors was entirely manual, there was
likely no safety device to automatically prevent the doors from closing on someone. The average
person with ordinary intelligence would have discovered the risk of putting his hand in between
two 200 to 250 pound manually operated steel doors to try to prevent the doors from closing.
Because the condition was open and obvious, the open and obvious doctrine applies and
precludes the existence of a duty to plaintiff unless there were special aspects that made the
condition unreasonably dangerous.
Plaintiff argues that the hoist-way doors were a special aspect because they were
unavoidable in the sense that delivery persons inevitably confront them in order to use the freight
elevator and transport their product. Plaintiff argues that the freight elevator also posed a
substantial risk of severe injury because people habitually stop elevator doors from closing by
putting their hand, arm, or other body part between them. We find that plaintiff’s arguments are
without merit.
In Lugo, supra at 518, the Michigan Supreme Court cited the following two examples of
conditions that would constitute special aspects: (1) an unguarded thirty foot deep pit in the
middle of a parking lot resulting in a fall of an extended distance and (2) standing water at the
only exit of a commercial building resulting in the condition’s being unavoidable because no
alternative route exists. The condition at issue is unlike those. The danger of manually operated
freight elevator doors closing on someone does not present an unreasonably high risk of severe
injury. All the injuries sustained by the individuals identified in plaintiff’s brief were not severe
injuries. Therefore, no evidence was presented which indicates that there is an unreasonably
high risk involved in sustaining severe injury. And, the condition was avoidable. If plaintiff had
not placed his hand between two closing 200 to 250 pound steel doors, he would have avoided
the risk of injury. Viewing the evidence in a light most favorable to plaintiff, we conclude also
that there is no genuine issue of material fact whether there were special aspects to the condition
that would make it unreasonably dangerous so as to render the condition not open and obvious.
Therefore, Spectrum did not owe plaintiff a duty based on special aspects of the condition.
Plaintiff’s common law negligence action was properly dismissed.
Plaintiff also argues that the statutory and regulatory scheme imposed a duty that cannot
be excused by the open and obvious doctrine. In this case, plaintiff is referring to rules enacted
by the elevator safety board in compliance with the Administrative Procedures Act. See 1979
AC, R 408.8101-8138.3 Although plaintiff’s complaint alleges a failure to inspect, maintain,
repair, etc., the complaint does not allege that a specific statutory duty has been violated.
Plaintiff failed to state a cause of action based on statute; consequently, summary disposition
3
These rules were rescinded effective December 31, 2003, 2003 MR 23, and were apparently
replaced by 2003 AAAS, R 408.7001 et seq.
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under MCR 2.116(C)(8) was proper on this alleged claim. The trial court did not err in granting
Spectrum summary disposition because plaintiff cannot recover from Spectrum based on the
alleged breach of an independent statutory duty.
We affirm.
/s/ Jane E. Markey
/s/ David H. Sawyer
/s/ Kirsten Frank Kelly
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