FOREST WOLFROM V HILLCREST MEMORIAL GARDENS ASSN
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STATE OF MICHIGAN
COURT OF APPEALS
FOREST WOLFROM and CHARLOTTE
WOLFROM,
UNPUBLISHED
February 12, 2002
Plaintiffs-Appellants,
v
No. 204746
Shiawassee Circuit Court
LC No. 96-060280-NO
HILLCREST MEMORIAL GARDENS
ASSOCIATION,
Defendant-Appellee.
ON REMAND
Before: Jansen, P.J., and Holbrook, Jr., and Griffin, JJ.
PER CURIAM.
This case is on remand from the Supreme Court for reconsideration in light of Lugo v
Ameritech Corp, Inc, 464 Mich 512; 629 NW2d 384 (2001). We again reverse the trial court’s
grant of summary disposition in favor of defendant under MCR 2.116(C)(10) and remand for
further proceedings.1
This is a premises liability case arising out of an incident in which plaintiff Forest
Wolfrom2 fell when exiting defendant’s office on July 27, 1995. As plaintiff exited defendant’s
office, he did not realize or recognize that there was one step from the office floor to the ground
level and, failing to anticipate the step, fell as he walked out of the office level, and injured his
left knee. The step and the ground floor level were both made of concrete and painted the same
gray color. Plaintiffs’ primary allegation in their complaint was that because the step and ground
level were painted the same color, the step was indistinguishable from the floor and constituted a
dangerous condition. Defendant countered that the step presented an open and obvious
condition. The trial court agreed with defendant, and granted summary disposition in its favor.
We review de novo the trial court’s ruling regarding the motion for summary disposition.
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). “In reviewing the grant of
1
On remand, Judge Griffin has been assigned to replace former Court of Appeals Judge Barbara
B. MacKenzie. Judge MacKenzie dissented in the prior opinion.
2
Use of plaintiff in the singular will refer to Forest Wolfrom because Charlotte Wolfrom’s
claims are wholly derivative.
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summary disposition under MCR 2.116(C)(10), we assess the substantively admissible evidence
in the light most favorable to the party opposing the motion.” Woodbury v Bruckner (On
Remand), ___ Mich App ___; ___ NW2d ___ (Docket No. 204411, issued 12/14/2001), slip op,
p 1.
In our previous opinion, we ruled, relying on the Supreme Court’s decision in Bertrand v
Alan Ford, Inc, 449 Mich 606; 537 NW2d 185 (1995), that there was a question of fact with
regard to whether the danger was open and obvious, and if it was open and obvious, whether the
risk of harm remained unreasonable. Now, we must reconsider this ruling in light of Lugo. We
find nothing in Lugo that compels a different result, and we again reverse and remand.
In Lugo, supra, p 516, the Supreme Court, in discussing the open and obvious doctrine in
premises liability cases, first noted the general rule that premises owners owe a duty to an invitee
to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a
dangerous condition on the land. This duty, however, does not usually encompass the removal
of an open and obvious danger. Id. Thus, where the danger is open and obvious or is known to
the invitee, an invitor owes no duty to protect or warn the invitee unless the invitor should
anticipate the harm despite knowledge of it by the invitee. Id.
In sum, the general rule is that a premises possessor is not required to protect an
invitee from open and obvious dangers, but, 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.
***
[W]ith regard to open and obvious dangers, the critical question is whether there
is evidence that creates a genuine issue of material fact regarding whether there
are truly “special aspects” of the open and obvious condition that differentiate the
risk from typical open and obvious risks so as to create an unreasonable risk of
harm, i.e., 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., pp 517-518.]
Therefore, the Court concluded that “only those special aspects that give rise to a uniquely high
likelihood of harm or severity of harm if the risk is not avoided will serve to remove that
condition from the open and obvious danger doctrine.” Id., p 519.
The Court’s holding in Lugo clearly presupposes that the danger is open and obvious. As
we stated in our prior opinion, it is not at all clear, and cannot be determined as a matter of law,
that the danger in this case is even open and obvious based on the condition of the step itself.
We continue to believe that there is a question of fact regarding whether the step is an open and
obvious danger and that the trial court erred in holding that it was as a matter of law. “Whether a
danger is open and obvious depends on whether it is reasonable to expect an average user of
ordinary intelligence to discover any danger upon casual inspection.” Weakley v Dearborn Hgts,
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240 Mich App 382, 385; 612 NW2d 428 (2000)3; see also Hughes v PMG Bldg, Inc, 227 Mich
App 1, 10; 574 NW2d 691 (1997); Eason v Coggins Memorial Christian Methodist Episcopal
Church, 210 Mich App 261, 264; 532 NW2d 882 (1995). This test is an objective one and the
court must determine whether a reasonable person in the plaintiff’s position would foresee the
danger, and not whether the plaintiff should have known that the condition was dangerous.
Hughes, supra, p 11.
As stated in our previous opinion, the evidence is uncontroverted that the step and the
ground level were painted the same gray color. Plaintiff testified at his deposition that he fell
because he did not see the step as he exited because the step was the same color as the ground
level. Plaintiff’s expert, Judith Keiser (an architectural engineer), averred in her report that there
is a 5 ¼ inch change in elevation from the door threshold to the ground level. Keiser stated that
the step and ground level were painted the same monotone color. Keiser specifically stated:
It is extremely difficult to notice changes in level when a monotone of color of
stepping surfaces occurs when descending steps as Plaintiff was because of the
sight angle. A person ascending a step will much more easily detect the step even
with the monotone of color due to the sight angle which enables said person to see
the vertical riser portion of the step which is completely hidden when descending
a step.
Based on plaintiff’s deposition testimony, plaintiff’s expert’s report, and the inherent character of
the step itself, we conclude that there is a material factual dispute regarding whether the step
constituted an open and obvious danger.
Moreover, we believe that there is also a question of fact regarding whether there is a
“special aspect” of the step (assuming that it is an open an obvious condition) “that
differentiate[s] the risk from typical open and obvious risks so as to create an unreasonable risk
of harm.” Lugo, supra, p 517. The character of the step and the ground level, being painted the
same monotone gray color that made it difficult to distinguish especially when descending the
step, is sufficient to create a material factual dispute regarding whether there is a special aspect
to the step. Indeed, Keiser stated in her report that the monotone of color completely hides the
vertical riser portion of the step upon descent.
Accordingly, there are questions of fact with regard to whether the step presented an open
and obvious danger and whether there are special aspects of the step that differentiates the risk
from a typical open and obvious risk so as to create an unreasonable risk of harm. The trial
court’s order granting summary disposition in favor of defendant is reversed.
3
This rule was not affected by the Supreme Court’s order remanding the case for
reconsideration, Weakley v Dearborn Hgts, 463 Mich 143; 615 NW2d 702 (2000), or by the
opinion on remand, Weakley v Dearborn Hgts (On Remand), 246 Mich App 322, 328, n 3; 632
NW2d 177 (2001).
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Reversed and remanded for further proceedings. Jurisdiction is not retained.
/s/ Kathleen Jansen
/s/ Donald E. Holbrook, Jr.
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