JAMES CARPENTER V COATIS ANDERSON
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STATE OF MICHIGAN
COURT OF APPEALS
JAMES CARPENTER,
UNPUBLISHED
July 1, 2010
Plaintiff-Appellant,
v
No. 291155
Saginaw Circuit Court
LC No. 07-065357-NO
COATIS ANDERSON,
Defendant-Appellee.
Before: SHAPIRO, P.J., and JANSEN and DONOFRIO, JJ.
SHAPRIO, J. (dissenting).
I respectfully dissent.
First, although I agree with the majority that if plaintiff is a licensee the trial court
properly granted summary disposition, I disagree with their decision to make that conclusion.
The majority notes that the trial court would have concluded that plaintiff was a licensee and
then makes its own conclusion that plaintiff was, in fact, a licensee. The fact is, this is not a
decision for the trial court or this Court, but for a jury. “As a general rule, if there is evidence
from which invitee status might be inferred, it is a question for the jury.” Stitt v Holland
Abundant Life Fellowship, 462 Mich 591, 595; 614 NW2d 88 (2000). An invitee is either a
public invitee or business visitor, with a business visitor being “a person who is invited to enter
or remain on land for a purpose directly or indirectly connected with business dealings with the
possessor of the land.” Id. at 602. Under the facts of this case, there is sufficient evidence to
indicate that plaintiff may have been an invitee.
Plaintiff went to defendant’s residence to participate in a weekly “poker party” held in the
basement of defendant’s home. The poker games would start on Friday evening and would run
until Saturday evening or even Sunday morning. The table only seated seven people, but over
the course of the weekend as many as 20 people would participate. Although the players knew
one another, this was not a typical, occasional, friendly game. The doorman was paid to make
sure no one entered who was not known to the participants. As part of his compensation, the
doorman was allowed to sell beer and soda to the participants and retain a profit. According to
the doorman and another witness, a percentage of the pots was set aside and split between the
host and one of the players. Thus, although the poker game was not a legal business, the host
had a significant economic interest in the game. Given that our Supreme Court has held that
bingo attendees are invitees, even if the game was illegal, Manning v Bishop of Marquette, 345
-1-
Mich 130; 76 NW2d 75 (1956), I believe there is more than sufficient evidence for a jury to
conclude that plaintiff was an invitee.
Second, although I agree that under Janson v Sajewski Funeral Home, Inc, ___ Mich
___; ___ NW2d ___ (SC Docket No. 140071, May 28, 2010), the hazard in this case was open
and obvious, I disagree with the trial court’s determination that there were no special aspects that
made it unreasonably dangerous notwithstanding its open and obvious nature. Again, I believe
there is a fact question for the jury as to whether the moisture was unavoidable, creating a special
aspect.
Plaintiff alleged that he entered through the side door, which was the designated entrance
players were to use because it opened directly to the stairs going down to the basement. To go
inside, a player had to step onto the landing inside the door and then proceed to the stairs into the
basement. Plaintiff testified that the landing was linoleum floor with no rug or mat to absorb
water and that he slipped on something wet which he did not see and does not know what it was.
Defendant testified that he did have a rug in place on the landing and the doorman testified that
the moisture had built up on the landing that evening, but that a rug was present to make it safe.
Several other witnesses testified they remembered a rug, and one witness other than plaintiff
testified that there was no rug.
In this case, there was no testimony that the moisture could be avoided. Indeed, the side
door was the only entryway available to players and, even if they had used a different entrance,
players still had to cross the moisture-covered landing1 in order to reach the stairs to the
basement. Thus, one could not reach the basement without traversing the moisture-covered
landing. Such facts are similar to the illustration of special aspects in Lugo v Ameritech Corp,
Inc, 464 Mich 512, 518; 629 NW2d 384 (2001) of “a commercial building with only one exit for
the general public where the floor is covered with standing water. In other words, the open and
obvious condition is effectively unavoidable.” Here, there was only one possible way for players
to enter the basement and that was by walking across the landing, making plaintiff’s encounter
with the liquid potentially unavoidable.2
1
There may be a fact question as to whether the moisture was of a quality and amount that was
avoidable. However, such a factual dispute has to be resolved by the jury.
2
Although this Court decided a somewhat similar issue to the contrary in Joyce v Rubin, 249
Mich App 231, 642 NW2d 360 (2002), I find the facts distinguishable. In Joyce, the plaintiff
was removing her personal belongings from her former employer’s home when she fell on the
slippery sidewalk leading to the front door. Id. at 233. The plaintiff alleged that the slippery
sidewalk was unavoidable. Id. at 242. This Court disagreed, concluding that the plaintiff could
have “simply removed her personal items another day or advised [the homeowner] that, if [she]
did not allow [the plaintiff] to use the garage door, [the plaintiff] would have to move another
day.” Id. The facts here are substantially different. The player could not elect to come a
different day, as the poker games only occurred on specific days. Furthermore, the record
indicates that plaintiff was specifically contacted and requested to come—he did not simply
decide to show up. Finally, as previously noted, even the use of a different entrance would not
have permitted plaintiff to avoid the landing, as the landing was the only way to reach the
(continued…)
-2-
Finally, there are factual disputes over whether a rug was present in the landing and
whether a rug would have made an invitee safer than no rug. If a rug would not have made
invitees safer, then whether a rug was present is irrelevant. However, if a rug would have made
an invitee safer, then a jury must resolve the discrepancies between the various witnesses as to
whether a rug was present on the landing.
Given that there are factual issues that require jury resolution as to plaintiff’s status as an
invitee, the unavoidability of the water on the landing, whether a rug would make invitees safer,
and whether a rug was present, I believe that the trial court erred in granting summary
disposition and that the majority errs by affirming it.
Accordingly, I would reverse the trial court’s grant of summary disposition and remand
for a jury trial to (1) determine whether plaintiff was a licensee or invitee; and if plaintiff was an
invitee, (2) determine whether the moisture was unavoidable, (3) whether a rug was necessary to
keep an invitee safe, and (4) whether a rug was provided.
/s/ Douglas B. Shapiro
(…continued)
staircase to the basement. Accordingly, this Court’s determination in Joyce is not dispositive of
the issue of whether special aspects existed in the present case.
-3-
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