DONALD DEMCHIK V KEVIN COMATY
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STATE OF MICHIGAN
COURT OF APPEALS
DONALD DEMCHIK,
UNPUBLISHED
October 21, 2010
Plaintiff-Appellant,
v
No. 292370
Macomb Circuit Court
LC No. 2008-003584-NO
KEVIN COMATY,
Defendant-Appellee.
Before: MURRAY, P.J., and K.F. KELLY and DONOFRIO, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order granting defendant’s motion for
summary disposition. We affirm.
Plaintiff injured his left arm when he attempted to open a locked glass window from the
outside of defendant’s rental home. On appeal, plaintiff argues the trial court erred in concluding
that plaintiff’s action was a premises liability claim and in applying the open and obvious
doctrine to his case.
This Court reviews the grant or denial of a motion for summary disposition under MCR
2.116(C)(10) de novo. Allen v Bloomfield Hills Sch Dist, 281 Mich App 49, 52; 760 NW2d 811
(2008). A motion brought pursuant to MCR 2.116(C)(10) tests the factual support of a plaintiff’s
claim. Lind v Battle Creek, 470 Mich 230, 238; 681 NW2d 334 (2004). A motion brought under
MCR 2.116(C)(10) is reviewed “by considering the pleadings, admissions, and other evidence
submitted by the parties in the light most favorable to the nonmoving party.” Latham v Barton
Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). Summary disposition is proper if there is
“no genuine issue regarding any material fact and the moving party is entitled to judgment as a
matter of law.” Id. This Court considers only that evidence which was properly presented to the
trial court in deciding the motion. Peña v Ingham Co Rd Comm’n, 255 Mich App 299, 310; 660
NW2d 351 (2003).
Michigan law distinguishes between claims resulting from ordinary negligence and
premises liability. James v Alberts, 464 Mich 12, 18-19; 626 NW2d 158 (2001). “‘The
gravamen of an action is determined by reading the claim as a whole’ and ‘looking beyond the
procedural labels to determine the exact nature of the claim.’” Tipton v William Beaumont Hosp,
266 Mich App 27, 33; 697 NW2d 552 (2005), quoting Simmons v Apex Drug Stores, Inc, 201
Mich App 250, 253; 506 NW2d 562 (1993), and MacDonald v Barbarotto, 161 Mich App 542,
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547; 411 NW2d 747 (1987). “In a premises liability claim, liability emanates merely from the
defendant’s duty as an owner, possessor, or occupier of land.” Laier v Kitchen, 266 Mich App
482, 493; 702 NW2d 199 (2005). Thus, when an injury develops from a condition of the land,
rather than from an activity or conduct that created the condition, the action sounds in premises
liability. James, 464 Mich at 18-19. Liability with respect to an ordinary negligence claim
stems from the basic rule of the common law which “imposes on every person engaged in the
prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to
unreasonably endanger the person or property of others.” Clark v Dalman, 379 Mich 251, 261;
150 NW2d 755 (1967).
We agree with the trial court that plaintiff’s action sounds in premises liability, regardless
of the label attached to the claims. Randall v Harrold, 121 Mich App 212, 217; 328 NW2d 622
(1982). After defendant told plaintiff the window was unlocked, plaintiff attempted to open the
window by placing his hand on the window and pushing in a lateral, left-to-right motion.
However, because the window was locked, the window broke when plaintiff pushed on the
window, and plaintiff’s left arm was severely cut. Based on the evidence presented by plaintiff,
it was the window itself, and not defendant’s conduct, that caused the laceration to his left arm.
Although defendant told plaintiff the window was unlocked when it was not, defendant’s
conduct did not produce the resulting harm. Rather, it was plaintiff’s action of attempting to
open a locked window that created the harm. Because the condition of the window created the
harm, plaintiff’s cause of action is one of premises liability.
Because plaintiff’s claim is founded in premises liability, the trial court also correctly
applied the open and obvious doctrine to plaintiff’s case. See Hiner v Mojica, 271 Mich App
604, 615-616; 722 NW2d 914 (2006) (The open and obvious doctrine is applicable only to
premises liability actions, and product liability cases involving a failure to warn. The doctrine
does not apply to actions involving claims of ordinary negligence). Plaintiff argues that if this
Court determines his action sounds in premises liability, the condition of the glass window was
not open and obvious.
In a premises liability action, the plaintiff must prove (1) that the
defendant had a duty to the plaintiff; (2) that the defendant breached that duty; (3)
that the defendant’s breach of duty caused the plaintiff’s injuries; and (4) that the
plaintiff suffered damages. Kennedy v Great Atlantic & Pacific Tea Co, 274
Mich App 710, 712; 737 NW2d 179 (2007).
To begin, we must determine plaintiff’s status on defendant’s land. A licensee is a
person who enters the land of another through the possessor’s consent, such as a social guest.
Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 596; 614 NW2d 88 (2000). In contrast,
an invitee is a person who enters the land of another for a commercial purpose and mutual
benefit. Id. at 604-605. Plaintiff went to defendant’s home to assist defendant in cleaning up the
yard and installing an air conditioning unit in the glass window. Plaintiff stated defendant asked
him onto the premises, and he did not expect to get paid for his assistance or derive a mutual
benefit. Thus, plaintiff was a social guest and his status on defendant’s premises was that of a
licensee. The duty to a licensee is only to warn the licensee of any hidden dangers the possessor
knows or has reason to know of, if the licensee does not know or have reason to know of the
dangers involved. Id. at 596. The premises owner owes no duty of inspection, nor any duty to
prepare the premises for the safety of the licensee. Id. Social guest licensees typically assume
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the ordinary risks associated with their visit. Kosmalski v St John’s Lutheran Church, 261 Mich
App 56, 64; 680 NW2d 50 (2004).
“[A] possessor of land has no obligation to take any steps to safeguard licensees from
conditions that are open and obvious.” Pippin v Atallah, 245 Mich App 136, 143; 626 NW2d
911 (2001). The test for whether something is “open and obvious” is objective, Corey v
Davenport College of Business (On Remand), 251 Mich App 1, 5; 649 NW2d 392 (2002), and
“‘is whether an average user with ordinary intelligence [would] have been able to discover the
danger and the risk presented upon causal inspection[,]’” Kennedy, 274 Mich App at 713,
quoting Novotney v Burger King Corp (On Remand), 198 Mich App 470, 475; 499 NW2d 379
(1993). This means the test is not whether a particular plaintiff should have known the condition
was hazardous, but whether a reasonable person in the plaintiff’s position would have foreseen
the danger. Kennedy, 274 Mich App at 713.
In reviewing the record in the light most favorable to plaintiff, there is no genuine issue
of material fact regarding whether the glass window was open and obvious. Plaintiff injured his
left arm when he attempted to open a locked glass window. Defendant’s only duty to plaintiff as
a licensee was to warn plaintiff of known hidden dangers on the premises, or to warn plaintiff of
dangers about which defendant should have known. Plaintiff was fully aware that the window
was made of glass and admitted that he knew to be careful around glass because he realized the
danger of glass breaking. Plaintiff also admitted that he knew that if any pressure was applied to
glass it could break, and stated that he did not need a warning regarding the likelihood of glass
breaking when pressure was applied to it. The fact that the glass window was locked did not
create a hidden danger that defendant had to warn plaintiff about. Rather, glass windows capable
of being locked are ordinary occurrences in almost all houses and the dangers associated with
applying pressure to glass window surfaces are foreseeable to reasonable people. Id. No hidden
dangers regarding the glass window existed that would impose a duty to warn upon defendant.
Therefore, the record provided does not raise a question of material fact regarding whether the
glass window in defendant’s house was open and obvious.
Finally, plaintiff argues that even if this Court finds the condition of the glass window to
be open and obvious, the special aspect of the glass window being locked precludes application
of the open and obvious doctrine to plaintiff’s claim. Although the trial court determined the
condition to be open and obvious, plaintiff argues that it failed to address whether the special
aspect of the glass window precluded application of the open and obvious doctrine to plaintiff’s
claim.
Special aspects of an open and obvious condition can preclude the application of the open
and obvious doctrine. Generally, if “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.” Lugo v Ameritech Corp, Inc, 464 Mich 512, 517;
629 NW2d 384 (2001) (emphasis added). “Special aspects” exist when (1) a high likelihood of
harm exists, such as a condition that is “effectively unavoidable” or (2) a condition poses an
“unreasonably high risk of severe harm.” Id. at 517-518. In those circumstances, the premises
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possessor remains liable to the invitee to protect him from the danger. Id. However, plaintiff
was a licensee on defendant’s premises, and the special aspects of an open and obvious condition
on a premises possessor’s land is not applicable to persons with licensee status.1 See Pippin, 245
Mich App at 143, citing Bertrand v Alan Ford, Inc, 449 Mich 606, 611; 537 NW2d 185 (1995)
(stating that “[only] [w]here there is a duty to a visitor to make a condition safe (i.e., the duty to
an invitee), potential liability will remain for harm from conditions that are still unreasonably
dangerous, despite their open and obvious nature.”). Thus, the record provided does not raise a
genuine issue of material fact regarding whether a duty was owed to plaintiff as a result of the
alleged special aspect of the open and obvious condition.2
Affirmed.
Defendant may tax costs, having prevailed in full. MCR 7.217(A).
/s/ Christopher M. Murray
/s/ Kirsten Frank Kelly
/s/ Pat M. Donofrio
1
Even if we assume, as defendant has, that plaintiff was an invitee, summary disposition was
still appropriate because there were no special aspects to the glass window. Lugo, 464 Mich at
517-518.
2
Plaintiff argues that a genuine issue of material fact exists regarding whether defendant’s
conduct was the proximate cause of plaintiff’s injury. Since the trial court correctly determined
defendant did not owe a duty to plaintiff, we need not address the issue.
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