CHARLOTTE HOFFNER V RICHARD LANCTOE
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STATE OF MICHIGAN
COURT OF APPEALS
CHARLOTTE HOFFNER and BLUE CROSS
BLUE SHIELD OF MICHIGAN,
FOR PUBLICATION
November 2, 2010
9:05 a.m.
Plaintiffs-Appellees,
v
RICHARD LANCTOE, LORI LANCTOE,
PAMELA MACK, TIFFANI AHO, and MOUSIE
INC d/b/a FITNESS XPRESS,
No. 292275
Gogebic Circuit Court
LC No. 08-000085-NO
Defendants-Appellants.
Before: MURPHY, C.J., and BECKERING and M.J. KELLY, JJ.
PER CURIAM.
Defendants appeal an order of the trial court denying their motion for summary
disposition pursuant to MCR 2.116(C)(7) and (C)(10) in this premises liability claim. The trial
court found there were genuine issues of material fact concerning whether certain defendants
could be held responsible as “possessors” of the premises where plaintiff Charlotte Hoffner fell,
the scope of a release signed by Hoffner, and the nature of the condition on defendants’ premises
that led to Hoffner’s injury. Defendants appeal by leave granted. We affirm in part, reverse in
part, and remand.
On January 28, 2006, Hoffner slipped and fell on ice on the sidewalk in front of the
entrance to an exercise facility, defendant Fitness Xpress.1 Hoffner had joined Fitness Xpress
approximately two weeks prior to her fall, and was entering the facility at its only customer
entrance. Hoffner reported that she saw the sidewalk had “glare ice” on it as she approached
from her vehicle but she believed that, because she was wearing good boots and it was a short
distance, she could safely walk across it to enter Fitness Xpress.
1
Fitness Xpress was operated by defendant Mousie, Inc., which was owned by defendants
Pamela Mack and Tiffani Aho. Defendants Richard and Lori Lanctoe owned the building and
property where Mousie, Inc. leased space for Fitness Xpress.
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I. POSSESSION AND CONTROL OF THE PREMISES
Defendants argue that Aho, Mack, and Fitness Xpress could not properly be included as
defendants because they did not have possession and control of the sidewalk outside of the
exercise facility where Hoffner fell. We agree.
A trial court’s determination of a motion for summary disposition is reviewed de novo.
Ormsby v Capital Welding, Inc, 471 Mich 45, 52; 684 NW2d 320 (2004). When reviewing a
motion brought under MCR 2.116(C)(10), the court considers the affidavits, depositions,
pleadings, admissions, and other evidence submitted by the parties in the light most favorable to
the nonmoving party. Rose v Nat’l Auction Group, Inc, 466 Mich 453, 461; 646 NW2d 455
(2002). Summary disposition is appropriate if there is no genuine issue regarding any material
fact and the moving party is entitled to judgment as a matter of law. Id.
“The invitee status of a plaintiff, alone, does not create a duty under premises liability
law unless the invitor has possession and control of the premises on which the plaintiff was
injured.” Orel v Uni-Rak Sales Co, Inc, 454 Mich 564, 565; 563 NW2d 241 (1997). In the
context of premises liability law, possession has been defined as “‘the right under which one may
exercise control over something to the exclusion of all others.’” Derbabian v S & C
Snowplowing, Inc, 249 Mich App 695, 703; 644 NW2d 779 (2002), quoting Black’s Law
Dictionary (7th ed) (emphasis in Derbabian). Control has been defined as “‘exercis[ing]
restraint or direction over; dominate, regulate, or command,’” Derbabian, 249 Mich App at 703,
quoting Random House Webster’s College Dictionary (1995), p 297, and as “‘the power to . . .
manage, direct, or oversee.’” Derbabian, 249 Mich App at 703-704, quoting Black’s Law
Dictionary (7th ed). Whereas possession and control are certainly indicative of title ownership
of land, ownership of the land alone is not dispositive because these possessory rights can be
“loaned” to another. Orel, 454 Mich at 568, quoting Merrit v Nickelson, 407 Mich 544, 552553; 287 NW2d 178 (1980). Here, the question is whether Aho, Mack, and Fitness Xpress, as
leaseholders of an area inside the Lanctoes’ building, had possession and control of the sidewalk
outside their facility.
In Merrit, 407 Mich at 552, quoting 2 Restatement Torts, 2d § 328 E, p 170, the Court
defined a possessor of land as:
(a) a person who is in occupation of the land with intent to control it or
(b) a person who has been in occupation of land with intent to control it, if no
other person has subsequently occupied it with intent to control it, or
(c) a person who is entitled to immediate occupation of the land, if no other
person is in possession under Clauses (a) and (b).
See also Derbabian, 249 Mich App at 702. Premises liability is based on both possession and
control over the land because the person having such possession and control is normally best
able to prevent harm to others. Id. at 705, quoting Merrit, 407 Mich at 552.
Paragraph 19 of the lease between the Lanctoes and Fitness Xpress specifically addressed
who was responsible for the care of the sidewalk and parking lot:
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Landlord shall be responsible for removal of snow from the leased facility
as landlord deems necessary, including from the roof, sidewalks, and parking lots.
Landlord shall be responsible, and shall hold tenant harmless for, any and all
injuries, accidents, or other liability related to its failure to maintain and remove
snow according to its obligations under this lease.
Additionally, evidence was presented that defendants understood that the Lanctoes were
responsible for the exterior areas of the premises, but that Fitness Xpress had a bucket of salt that
it used to help keep the sidewalk clear. There was evidence that the Lanctoes cleared snow and
ice from the area later during the day of Hoffner’s fall. The Lanctoes’ building also housed
several other businesses, including Lori Lanctoe’s, which had customers entering the building
using the sidewalk that fronted Fitness Xpress.
Plaintiffs argue that paragraph 19 of the lease specifically refers to the sidewalk as part of
the “leased facility,” thus establishing Fitness Xpress’ duty to maintain the area. However, the
lease specifically states that Fitness Xpress was leasing “approximately 2000 square feet of floor
space situated in the rental unit of a building . . . .” Plaintiffs also argue that Fitness Xpress
exercised control over the parking lot and sidewalk for the purposes of parking customers’ cars
and entrance into the building. However, this use of the premises does not necessarily establish
control over the area. As noted, there were several other businesses using the same building.
Plaintiffs also argue that Fitness Xpress assumed a duty by applying salt to the sidewalk
at times. “A party may be under a legal duty when it voluntarily assumes a function that it is not
legally required to perform,” and once “a duty is voluntarily assumed, it must be performed with
some degree of skill and care.” Zychowski v A J Marshall Co, Inc, 233 Mich App 229, 231; 590
NW2d 301 (1998). However, the evidence did not demonstrate that Fitness Xpress assumed care
of the sidewalk from the Lanctoes, considered the sidewalk their responsibility, or endangered
customers by intermittently applying additional salt. A defendant can plow or salt a sidewalk
without assuming a duty, or taking possession or control over the sidewalk. Devine v Al’s
Lounge, Inc, 181 Mich App 117, 120; 448 NW2d 725 (1989).
Possession for purposes of premises liability depends on the actual exercise of dominion
and control over the property. Derbabian, 249 Mich App at 704. Here, the evidence indicated
that by contract, and the actions and intent of the parties, Fitness Xpress, Mack, and Aho did not
exercise dominion and control over the sidewalk. Therefore, they were not in the best position to
prevent the kind of harm incurred by Hoffner, and were not the possessors of the sidewalk. See
id. at 702, 705. We thus find that the trial court erred in finding a genuine issue of material fact
regarding whether Fitness Xpress, Aho, and Mack could be accorded liability for Hoffner’s fall
on the sidewalk, and those defendants were entitled to summary disposition as a matter of law.
See Rose, 466 Mich at 461.
II. SCOPE OF HOFFNER’S RELEASE
Defendants also argue that a release of liability agreed to by Hoffner and Fitness Xpress
precluded liability for all defendants for slip and fall accidents on the sidewalk. We disagree.
Summary disposition of a plaintiff’s complaint is proper where there exists a valid release of
liability between the parties. MCR 2.116(C)(7). In reviewing a motion for summary disposition
based on a release barring a claim, MCR 2.116(C)(7), this Court considers the affidavits,
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depositions, admissions, and other documentary evidence to determine whether the movant is
entitled to summary disposition as a matter of law. Tarlea v Crabtree, 263 Mich App 80, 87-88;
687 NW2d 333 (2004). The evidence is viewed in the light most favorable to the nonmoving
party, and all legitimate inferences in favor of the nonmoving party are drawn. Jackson v
Saginaw Co, 458 Mich 141, 142; 580 NW2d 870 (1998). A release of liability is valid if it is
fairly and knowingly made. Wyrembelski v City of St Clair Shores, 218 Mich App 125, 127; 553
NW2d 651 (1996) (quotations and citation omitted).
“A contract must be interpreted according to its plain and ordinary meaning.” Holmes v
Holmes, 281 Mich App 575, 593; 760 NW2d 300 (2008). If contractual language is clear,
construction of the contract is a question of law for the court. Id. at 594 (quotations and citation
omitted). A contract is not ambiguous if it fairly produces only one interpretation, even if it is
inartfully worded or clumsily arranged. Id., quoting Meagher v Wayne State Univ, 222 Mich
App 700, 721-722; 565 NW2d 401 (1997).
Given our finding that Fitness Xpress, Aho, and Mack were entitled to summary
disposition for lack of possession and control of the premises where Hoffner fell, we focus our
analysis on the applicability of the release as it pertains to the Lanctoes. Arguably, the Lanctoes
could potentially be released from liability by the language of the contract, even though they
were not specifically named in the release, in light of the broad language to release and forever
discharge “all others” from liability.2 However, in light of the fact that we agree with the trial
2
As our Supreme Court recently set forth in Shay v Aldrich, 487 Mich 648; ___ NW2d
___ (2010):
[T]o determine whether an unnamed party is released from liability by broad or
vague release language, the party’s status as a third-party beneficiary must be
established by an objective analysis of the release language. However, traditional
contract principles continue to apply to the release, and courts may consider the
subjective intent of the named and unnamed parties to the release under certain
circumstances, such as when there is a latent ambiguity. The third-partybeneficiary statute indicates that the Legislature intended to allow parties who are
direct beneficiaries to sue to enforce their rights, but the statute expressly states
that third-party beneficiaries have only the “same right” to enforce as they would
if the promise had been made directly to them. MCL 600.1405. That is, the
statute creates a cause of action, but it is not intended to afford third parties
greater rights than they would have if they had been the original promisee. [Id.,
slip op pp 28-29.]
***
[A] latent ambiguity has been described as one that “‘arises not upon the words of
the will, deed or other instrument, as looked at in themselves, but upon those
words when applied to the object or to the subject which they describe.’” “‘And
where, from the evidence which is introduced, there arises a doubt as to what
(continued…)
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court that the scope of activities released by the contract is ambiguous, and thus agree that
summary disposition was not appropriate, we need not now decide this issue.
The indemnification portion of the contract provides, in relevant part:
INDEMNIFICATION: Member . . . hereby agree to indemnify, defend and hold
harmless, Fitness Xpress, a division of Mousie, Inc. and its officers, employees,
contractors, agents, successors or assigns from any and all claims for liability
against [sic] without limitation, including . . . expenses incurred either directly or
indirectly by reason of, resulting from, or associated in anyway [sic] without
limitation, with the Membership and/or Fitness Xpress.
Member also
acknowledges that she has reviewed and executed the Waiver of Liability
attached hereto as part of this agreement prior to engaging in any physical
activities or programs at Fitness Xpress according to the RELEASE below.3
Nothing in the indemnification provision relates to the Lanctoes; however, the release
portion of the contract contains a broader disclaimer, which provides, in pertinent part:
RELEASE: I, the member or participant . . . understand and agree that fitness
activities including weight loss may be hazardous activities and I . . . should
contact a healthcare professional or doctor before beginning any new activities or
weight loss program. I am voluntarily participating in these activities and using
the Fitness Xpress (Mousie Inc.) facilities and equipment at my sole risk, with full
knowledge of the dangers involved. I hereby agree to expressly assume and
accept any and all risks of injury or death related hereto.
In consideration of being allowed to participate in the activities and programs of
Fitness Xpress (Mousie, Inc.) and use of its facilities and equipment, in the
addition of any payment of any fees or charges, I do hereby waive, release and
forever discharge Fitness Xpress, Mousie Inc. its officers, agents, employees,
representatives, executors, and all others from any responsibilities or liabilities
for any injuries or damage resulting from my and/or my daughter(s) [sic], or any
belongings, including those caused by any negligent act or commission, in
connection with participation/membership or use of equipment at Fitness Xpress
and Mousie, Inc. (emphasis added).
If the text in the release is unambiguous, we must ascertain the parties’ intentions from
the plain, ordinary meaning of the language of the release. Genesee Foods Services, Inc v
Meadowbrook, Inc, 279 Mich App 649, 655; 760 NW2d 259 (2008) (quotations and citation
omitted).
(…continued)
party or parties are to receive the benefit [of a contract], parol evidence is
admissible to determine such fact.’” [Id., slip op pp 24-25 (citations omitted).]
3
No Waiver of Liability form has ever been produced.
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Here, the Lanctoes argue that the release portion of the contract applies to their liability
for Hoffner’s slip and fall on the ice prior to entering the exercise facility because the accident is
included in the contract’s language releasing “all others from any responsibilities or liabilities for
any injuries” including those caused by “any negligent act or commission in connection with
participation/membership” at Fitness Xpress. The contract’s use of broad language releasing “all
others” could potentially be interpreted as including any claim that Hoffner could bring against
the Lanctoes. See, Shay, 487 Mich 648. Further, a release including language such as “any and
all claims, demands, damages, rights of action, or causes of action, . . . arising out of the
Member’s . . . use of the . . . facilities,” can express an intention to disclaim liability for all
negligence. Skotak v Vic Tanny Int’l, Inc, 203 Mich App 616, 619; 513 NW2d 428 (1994).
However, the contract at issue releases liability for claims “in connection with
participation/membership or use of equipment at Fitness Xpress and Mousie, Inc.” and states that
Hoffner is “using the Fitness Xpress (Mousie Inc.) facilities and equipment, at my sole risk . . . ”
This language provides an apparent limitation of liability to the actual use of the fitness facility
and its equipment, not liability encountered en route to the fitness center. Plaintiffs also maintain
that the language “release and forever discharge . . . from any responsibilities or liabilities for
any injuries or damage resulting from my and/or my daughter(s) [sic], or any belongings,
including those caused by any negligent act or commission, in connection with
participation/membership or use of equipment . . . ,” is ambiguous as to which actions trigger the
release.
The trial court found the contract ambiguous by stating that a jury could conclude that the
release applied to all activities or only to some activities. The court commented that the release
seemed to pertain to the nature of the business, i.e., fitness activities and equipment, rather than
falling on a sidewalk outside the exercise facility. The language of the contract could reasonably
be interpreted broadly as to include a slip and fall while attempting to enter Fitness Xpress, or
narrowly, to include only activities that are related to exercise and weight loss that are
specifically discussed in the release portion of the contract. “If the contract is subject to two
reasonable interpretations, factual development is necessary to determine the intent of the parties
and summary disposition is therefore inappropriate.” Meagher, 222 Mich App at 722.
Therefore, the trial court did not err in denying summary disposition to defendants on this issue.
III. OPEN AND OBVIOUS DANGER DOCTRINE
Defendants also argue that plaintiffs’ claim should be barred by application of the open
and obvious danger doctrine. Hoffner was an invitee; one who is invited onto the land for a
commercial purpose. See Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 597; 614
NW2d 88 (2000). “The landowner has a duty of care, not only to warn the invitee of any known
dangers, but the additional obligation to also make the premises safe, which requires the
landowner to inspect the premises and, depending upon the circumstances, make any necessary
repairs or warn of any discovered hazards.” Id.
However, this duty does not generally encompass removal of open and obvious dangers
“where the dangers are known to the invitee or are so obvious that the invitee might reasonably
be expected to discover them.” Riddle v McLouth Steel Prod Corp, 440 Mich 85, 96; 485 NW2d
676 (1992). Whether a danger is open and obvious depends on whether it is reasonable to expect
that an average person with ordinary intelligence would have discovered it upon casual
inspection. Joyce v Rubin, 249 Mich App 231, 238; 642 NW2d 360 (2002). Here, it is not
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disputed that the ice in front of the entrance to the exercise facility posed an open and obvious
danger. Hoffner testified that she saw that the sidewalk was covered by “glare ice” as she
approached it from the parking lot, but thought that she could cross it safely.
Defendants argue that the trial court erred in finding that the ice could reasonably be
found to constitute a special aspect that made the condition unreasonably dangerous because it
was effectively unavoidable. If special aspects of a condition make even an open and obvious
risk unreasonably dangerous, the land possessor has a duty to undertake reasonable precautions
to protect invitees from that risk. Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d
384 (2001). A special aspect exists when the danger, although open and obvious, is effectively
unavoidable or imposes a uniquely high likelihood of harm or severity of harm. Id. at 518-519.
In considering what constitutes a special aspect, a court must evaluate the objective nature of the
condition of the premises, not the subjective degree of care used by the plaintiff or other
idiosyncratic factors related to the particular plaintiff. Bragan ex rel Bragan v Symanzik, 263
Mich App 324, 332; 687 NW2d 881 (2004), citing Lugo, 464 Mich at 523-524.
Here, defendants argue that the ice was avoidable because Hoffner did not have to
attempt to enter the exercise facility and voluntarily confront the ice.4 In Lugo, 464 Mich at 517,
the Court described a hypothetical example of an “effectively unavoidable” obstacle as standing
water at the only exit of a commercial building, because no alternative route is available.
Defendants note that the Lugo example considers a plaintiff who could not exit, rather than a
plaintiff who could choose not to enter. Defendants assert that a danger is not unavoidable
where the plaintiff is not required to confront the hazard.
However, in Robertson v Blue Water Oil Co, 268 Mich App 588, 590-591; 708 NW2d
749 (2005), this Court described testimony concerning an “unusually severe and uniform ice
storm that covered the entire area surrounding defendant’s [gas] station,” causing what was
described as extremely icy conditions in the parking lot where the plaintiff slipped and fell as he
walked from the pump where he had paid for fuel to the station’s convenience store where he
wished to purchase windshield washer fluid and coffee. The defendant argued that the condition
was avoidable because the plaintiff could have gone to a different service station to make his
purchases of fuel, coffee, and windshield washer fluid, but this Court found, emphasizing that the
defendant invited the plaintiff to the premises as a business, that the ice was unavoidable. Id. at
593-594. The Robertson Court reasoned:
Even if there were [available alternatives], the scope of the inquiry is
limited to “the objective nature of the condition of the premises at issue.”
Therefore, the only inquiry is whether the condition was effectively unavoidable
4
As an alternative to entering Fitness Xpress over the glare ice blocking the only entrance,
defendants argued at the hearing of this matter that Hoffner could have called Fitness Xpress and
demanded that they salt the sidewalk, where after she would presumably wait for the salt to take
effect. Such alternative is notably contradictory to defendants’ argument that Xpress Fitness had
no possession or control over the sidewalk, and thus, no obligation to salt it.
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on the premises. Here, there was clearly no alternative, ice-free path from the
gasoline pumps to the service station, a fact of which defendant had been made
aware several hours previously. The ice was effectively unavoidable. [Id.
(quotations omitted, emphasis in original).]
Moreover, the Robertson Court dismissed the idea that the defendant could avail itself of the
argument that the condition was avoidable simply because the plaintiff could find another
business to patronize, holding:
Finally, and more significantly, plaintiff was a paying customer who was
on defendant’s premises for defendant’s commercial purposes, and thus he was an
invitee of defendant. See Stitt v Holland Abundant Life Fellowship, 462 Mich
591, 596-598, 603-604; 614 NW2d 88 (2000). As our Supreme Court noted,
“invitee status necessarily turns on the existence of an ‘invitation.’” Id., 597-598.
Defendant’s contention that plaintiff should have gone elsewhere is simply
inconsistent with defendant’s purpose in operating its gas station. The logical
consequence of defendant’s argument would be the irrational conclusion that a
business owner who invites customers onto its premises would never have any
liability to those for hazardous conditions as long as the customers even
technically had the option of declining the invitation.
***
Even if the record showed that plaintiff was aware of a realistic, safe
alternative location to purchase his fuel, coffee, and windshield washer fluid,
where defendant has invited the public, and by extension plaintiff, onto its
premises for commercial purposes, we decline to absolve defendant of its duty of
care on that basis. To do so would be disingenuous. Therefore, we conclude that
the trial court appropriately denied defendant’s motions. [Id. at 594-595
(emphasis omitted).]
Further, even in the hypothetical example of standing water blocking the only exit to a building
as described in Lugo, 464 Mich at 517, the Supreme Court apparently would not have absolved
the theoretical defendant of responsibility where the theoretical plaintiff chose to leave the
building and confront an unavoidable danger, rather than choosing to avoid the danger by
waiting until the water was cleared.
Here, in reaching its decision that summary disposition was inappropriate, the trial court
noted that Hoffner had contracted to use Fitness Xpress and may have needed to use it for health
reasons. Because there was only one customer entrance to the facility that was fronted by the icy
sidewalk, “the objective nature of the condition of the premises at issue” reveals that the icy
sidewalk was effectively unavoidable as it related to the use of the premises. See id. at 523-524;
Robertson, 268 Mich App at 594-595. There was no alternative route Hoffner could take in
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order to enter the exercise facility.5 Additionally, Hoffner was an invitee by virtue of her
contract with Fitness Xpress, and the Robertson Court found that it would be disingenuous to
relieve defendants of their duty of care based on similar circumstances. See Robertson, 268
Mich App at 595. Therefore, we find that the trial court appropriately denied defendants’ motion
on this ground.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ William B. Murphy
/s/ Jane M. Beckering
/s/ Michael J. Kelly
5
We find unconvincing defendants’ argument at the hearing that if plaintiff had approached the
glare ice from a different angle she might have had more success.
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