RICHARD D LARUE V RICHARD E JACOBS GROUP
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STATE OF MICHIGAN
COURT OF APPEALS
RICHARD D. LaRUE and CATHY LaRUE,
UNPUBLISHED
October 29, 1999
Plaintiffs-Appellants,
v
No. 211741
Saginaw Circuit Court
LC No. 96-013353 NO
RICHARD E. JACOBS GROUP, d/b/a FASHION
SQUARE MALL,
Defendant-Appellee,
and
DOC HEINZ CONTRACTING, INC.,
Defendant.
Before: O’Connell, P.J. and Talbot and Zahra, JJ.
PER CURIAM.
Plaintiffs appeal as of right from the trial court order granting summary disposition pursuant to
MCR 2.116(C)(10) in favor of defendant Richard E. Jacobs Group, doing business as Fashion Square
Mall, in this premises liability action. We affirm.
We review the trial court’s decision whether to grant the motion for summary disposition de
novo to determine whether any genuine issue of material fact exists that would prevent entering judgment
for the moving party as a matter of law. Morales v Auto-Owners Ins Co, 458 Mich 288, 294; 582
NW2d 776 (1998). In making this determination, we view the documentary evidence in a light favoring
the nonmoving party. Radtke v Everett, 442 Mich 368, 374; 501 NW2d 155 (1993).
Plaintiffs argue that the pile of snow over which plaintiff Richard LaRue1 walked to get to
defendant’s shopping mall, and on which he slipped and fell, presented an unreasonable risk of harm
despite its open and obvious nature. The trial court disagreed, and granted defendant’s motion for
summary disposition.2
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The parties do not dispute that plaintiff was an invitee on defendant’s premises.3 An invitor
owes a duty “‘to exercise reasonable care to protect invitees from an unreasonable risk of harm caused
by a dangerous condition of the land’ that the [invitor] knows or should know the invitees will not
discover, realize, or protect themselves against.” Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537
NW2d 185 (1995), quoting Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 499; 418
NW2d 381 (1988). See also 2 Restatement Torts 2d, § 343, pp 215-216. However, an invitor
generally has no duty to warn or protect an invitee of open and obvious dangers. Bertrand, supra at
610-611; Riddle v McLouth Steel Products Corp, 440 Mich 85, 96 485 NW2d 676 (1992);
Millikin v Walton Manor Mobile Home Park, Inc, 234 Mich App 490, 495-497; 595 NW2d 152
(1999). The parties also do not dispute that the danger presented by the snow bank was open and
obvious.4
The open-and-obvious-danger doctrine generally relieves the invitor of the duty to warn or
protect the invitee of open and obvious dangers; however, the invitor still owes a duty to protect the
invitee from conditions that pose an unreasonable risk of harm despite their open and obvious nature.
Bertrand, supra at 610-611; Riddle, supra at 96; Millikin, supra at 498; Hughes v PMG Building,
Inc, 227 Mich App 1, 10; 574 NW2d 691 (1997). Michigan courts have approvingly cited the
following rule from the Second Restatement of Torts:
A possessor of land is not liable to his invitees for physical harm caused to them
by any activity or condition on the land whose danger is known or obvious to them,
unless the possessor should anticipate the harm despite such knowledge or obviousness.
[2 Restatement Torts 2d, § 343A(1), p 218.]
This rule has sometimes been stated in terms of whether the risk remains unreasonable despite its open
and obvious nature. Bertrand, supra at 611 (“[I]f the risk of harm remains unreasonable, despite its
obviousness or despite knowledge of it by the invitee, then the circumstances may be such that the
invitor is required to undertake reasonable precautions.”); Millikin, supra at 498 (holding that summary
disposition for the defendant was appropriate where the plaintiff failed to present facts that the
dangerous condition posed an unreasonable risk despite its open and obvious nature). Other times, the
rule has been stated in terms of whether the harm was foreseeable despite the open and obvious nature
of the condition. Bertrand, supra at 610-611 (“While there may be no obligation to warn of a fully
obvious condition, the possessor still may have a duty to protect an invitee against foreseeably
dangerous conditions.”); Riddle, supra at 96 (“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.”); Hughes, supra at 10 (“[E]ven if a danger is open and obvious, a possessor of
land may still have a duty to protect invitees against foreseeably dangerous conditions.”). We conclude
that under the facts and circumstances of this case, both characterizations of the rule are accurate—a
risk that remains unreasonable despite its open and obvious nature is one where harm will foreseeably
occur despite that open and obvious nature.5
In this case, the trial court correctly concluded that plaintiffs did not present any factual basis for
concluding that the snow bank presented an unreasonable risk despite its open and obvious nature. The
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nature of the snow bank, even with the presence of the path created by other patrons and employees of
the mall, is commonplace during winter months in Michigan. Plaintiff had observed similar snow banks
at the mall on many previous occasions. On the date of his injury, plaintiff chose to walk over the snow
bank rather than around it. Plaintiff could have avoided the danger but did not. Merely because other
persons also chose not to avoid the danger, thus creating a makeshift “path” over the snow bank, does
not render it foreseeable that injury will occur despite the open and obvious nature of the condition—
especially where it was abundantly simple for plaintiff to avoid the danger altogether by walking around
the snow bank. Accordingly, the trial court did not err in granting summary disposition in favor of
defendant.
Affirmed.
/s/ Peter D. O’Connell
/s/ Michael J. Talbot
/s/ Brian K. Zahra
1
Because plaintiff Richard LaRue was the person who slipped and fell, and because his wife Cathy
LaRue was added as a plaintiff to claim loss of consortium, any further references in this opinion to
“plaintiff” refer solely to plaintiff Richard LaRue.
2
The trial court also denied plaintiff’s motion for reconsideration pursuant to MCR 2.119(F).
3
An invitee is a person who is invited to enter or remain on the premises either for a purpose for which
the premises are held open to the public or for a purpose connected with the business of the possessor
of the premises. Stitt v Holland Abundant Life Fellowship, 229 Mich App 504, 506-508; 582
NW2d 849 (1998), citing 2 Restatement Torts, 2d, § 332, p 176.
4
A danger is open and obvious where “it is reasonable to expect an average person of ordinary
intelligence to discover the danger upon casual inspection.” Hughes v PMG Building, Inc, 227 Mich
App 1, 10; 574 NW2d 691 (1997).
5
We note that our Supreme Court recently split evenly on the proper characterization of this rule. In
Singerman v Municipal Service Bureau, Inc, 455 Mich 135; 565 NW2d 383 (1997), Justices
Weaver, Boyle, and Riley held that the question is not the foreseeability of the harm, but rather, whether
the risk of harm remains unreasonable despite its open and obvious nature. Id. at 142-143. However,
Justices Mallett, Brickley, and Cavanagh maintained that the invitor “may still be liable to invitees if he
should anticipate that the hazard will cause injury.” Id. at 146. Justice Kelly did not participate in the
decision.
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