KATHY SCOTT V KROGER
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STATE OF MICHIGAN
COURT OF APPEALS
KATHY SCOTT,
UNPUBLISHED
August 12, 2010
Plaintiff-Appellant,
v
No. 290696
Wayne Circuit Court
LC No. 08-122918-NO
KROGER and THE KROGER COMPANY ,
Defendants-Appellees.
Before: WILDER, P.J., and CAVANAGH and SAAD, JJ.
PER CURIAM.
In this negligence and premises liability action, plaintiff appeals the trial court’s grant of
summary disposition to defendant pursuant to MCR 2.116(C)(10). For the reasons set forth
below, we affirm. This appeal has been decided without oral argument pursuant to MCR
7.214(E).
We review de novo an order granting a motion for summary disposition. Spiek v
Michigan Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). When reviewing
a motion under MCR 2.116(C)(10), we consider the evidence in a light most favorable to the
non-moving party. Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993). The moving
party is entitled to judgment as a matter of law if no genuine issue of material fact exists. Miller
v Purcell, 246 Mich App 244, 246; 631 NW2d 760 (2001).
Plaintiff alleges that she slipped and fell on a puddle of water while shopping at
defendant’s store. She argues that the trial court erred when it granted summary disposition to
defendant because she claims the water was nearly invisible and there was no sign or other
indication that the floor was wet.
Under open and obvious doctrine, when a plaintiff is a business invitee, the premises
owner has a duty to use reasonable care to protect the plaintiff from dangerous conditions.
Bertrand v Alan Ford, Inc, 449 Mich 606, 612-613; 537 NW2d 185 (1995). “However, where
the dangers are known to the invitee or are so obvious that the invitee might reasonably be
expected to discover them, an invitor owes no duty to protect or warn the invitee unless he
should anticipate the harm despite knowledge of it on behalf of the invitee.” Id. To determine
whether a danger is open and obvious, the courts consider “whether an average user with
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). Courts do
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not consider whether a specific plaintiff knew or should have known about the dangerous
condition, but whether the danger would be foreseeable to a reasonable person in the plaintiff’s
position. Id.
Here, plaintiff’s own deposition testimony established that, upon casual inspection, a
reasonable person in her position would have seen the water. Plaintiff admitted that she was able
to see the water when she was on the floor and after she stood up. Further, plaintiff testified that
she did not tell the manager where the spill was located because she thought he had seen the
water. On the basis of plaintiff’s testimony, the water was not invisible and could be seen upon
casual inspection. Accordingly, the trial court correctly held that the condition was open and
obvious. See Joyce, 249 Mich App at 238.
Plaintiff argues that, if the water was open and obvious, a nearby seafood display
constituted a “special aspect” that created an unreasonable risk of harm because it diverted her
attention from the water on the floor.
If a court finds that the condition is open and obvious, it must then consider whether there
are any special aspects that create an unreasonable risk of harm despite the condition being open
and obvious. Lugo v Ameritech Corp, Inc, 464 Mich 512, 517; 629 NW2d 384 (2001). “[I]f
special aspects of a condition make even an open and obvious risk unreasonably dangerous, the
premises possessor has a duty to undertake reasonable precautions to protect invitees from that
risk.” Id. Therefore, the inquiry in such cases is “whether the ‘special aspect’ of the condition
should prevail in imposing liability upon the defendant or the openness and obviousness of the
condition should prevail in barring liability.” Id. at 517-518. To be a special aspect, the harm
must be “effectively unavoidable” or constitute “an unreasonably high risk of severe harm.” Id.
at 518. “However, the risk must be more than merely imaginable or premised on a plaintiff’s
own idiosyncrasies.” Robertson v Blue Water Oil Co, 268 Mich App 588, 593; 708 NW2d 749
(2005). To determine whether a special aspect exists, the court considers the surrounding
conditions, the character, and the location of the condition in question. Bertrand, 449 Mich at
617.
Here, no special aspect existed. A small, visible puddle of water in front of a seafood
display case does not yield a “uniquely high likelihood of harm or severity of harm” and no
evidence indicates that the water on the floor was “effectively unavoidable.” Lugo, 464 Mich at
517-518. Plaintiff stated that she was not looking where she was walking when she fell and,
again, the water was visible upon casual inspection. Accordingly, evidence showed that the risk
was avoidable if plaintiff had simply looked in front of her. The trial court did not err when it
granted defendants’ motion for summary disposition.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Mark J. Cavanagh
/s/ Henry William Saad
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