CAROLYN YOUNG V AFRIKAN CHILD ENRICHMENT ASSN
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STATE OF MICHIGAN
COURT OF APPEALS
CAROLYN YOUNG,
UNPUBLISHED
May 28, 2002
Plaintiff-Appellant,
V
AFRIKAN CHILD ENRICHMENT
ASSOCIATION d/b/a NSOROMA INSTITUTE
and SOUL HARVEST MINISTRIES,
No. 230795
Wayne Circuit Court
LC No. 98-837382-NI
Defendants-Appellees.
and
FIRST METHODIST CHURCH OF HIGHLAND
PARK and ST. BENEDICT PARISH
ARCHDIOCESE OF DETROIT,1
Defendants.
Before: Whitbeck, C.J., and O’Connell and Meter, JJ.
PER CURIAM.
Plaintiff Carolyn Young appeals as of right from the trial court’s order granting summary
disposition in favor of defendants Afrikan Child Enrichment Association, doing business as
Nsoroma Institute (Nsoroma), and Soul Harvest Ministries (Soul Harvest) pursuant to MCR
2.116(C)(10). We affirm.
This is a premises liability case. Plaintiff, a public health inspector with the Wayne
County Environmental Health Department, was visiting the Nsoroma, located in the city of
Highland Park, on November 8, 1996, to ensure its compliance with state and county standards
in order to become a charter school.2 Nsoroma occupies the second floor of a church annex
1
The trial court entered an order, pursuant to the parties’ stipulation, on August 3, 1999,
dismissing St Benedict Parish Archdiocese of Detroit as a party to this lawsuit.
2
At the time plaintiff visited the school in November 1996, it had yet to acquire licensing from
the state to become a charter school, and was still operating as a private school.
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owned by Soul Harvest. Nsoroma and Soul Harvest entered into a monthly lease in August 1996
that provided Nsoroma with the use of the annex’s second floor as well as permission to use the
fellowship room on the first floor to use as a lunchroom for the students. Soul Harvest purchased
the church and its accompanying annex from First Methodist Church of Highland Park in 1994.
Plaintiff was visiting Nsoroma on November 8, 1996, for the second time for a
reinspection. She had visited the school four weeks earlier to conduct a full inspection. After
completing her reinspection, the director of Nsoroma, Malik Yakini, was escorting plaintiff to
the annex’s exit. As the two descended a stairwell from the second floor to the first floor,
plaintiff slipped and fell down the stairs after stepping down from a landing between two flights
of stairs. According to plaintiff’s deposition testimony, the accident occurred at approximately
12:30 p.m. when a group of students were leaving the lunchroom and running up the stairwell.
According to plaintiff, she was unable to grasp the handrail along the stairs before she fell. As
noted, plaintiff had visited Nsoroma on a prior occasion for an inspection, and had traveled up
and down the stairwell without incident. Plaintiff also walked up the same stairwell without
incident on November 8, 1996.
Plaintiff filed a first amended complaint alleging negligence on April 16, 1999.
Specifically, plaintiff alleged that the handrail along the stairwell was a “latent and unreasonably
dangerous condition” because it was not “installed pursuant to generally accepted engineering
standards, was not installed pursuant to the ordinances[s] and/or building code[s] of the City of
Highland Park and was defective in several ways, including the height in which the handrail was
installed.” After discovery, Nsoroma moved for summary disposition under MCR 2.116(C)(8)
and (10) on March 24, 2000. On April 7, 2000, Soul Harvest filed a concurrence with
Nsoroma’s motion. After plaintiff responded, the trial court conducted a hearing on the motion
on June 2, 2000.
In support of its motion for summary disposition, Nsoroma first argued that it was not
liable to plaintiff because it did not retain possession and control of the stairwell where she fell.
Defendants also argued together that they were unaware of the alleged defective railing, and
therefore could not anticipate a risk of harm to plaintiff. In their brief in support of the motion,
defendants maintained that they did not owe a duty to plaintiff, apparently on the theory that the
risk of falling down the stairs was open and obvious and that it did not pose an unreasonable risk
of harm. In response, plaintiff argued that genuine issues of fact for the jury existed with regard
to who had possession and control of the stairwell. Plaintiff also maintained that defendants
breached their duty to inspect their premises for defects. Likewise, plaintiff countered
defendants’ argument that the railing’s condition was open and obvious, and further argued that
the railing was not installed in conformance with established industry standards.
At the completion of each parties’ argument, the trial court rendered its bench ruling
granting summary disposition in favor of defendants. The trial court did not articulate specific
reasons for granting summary disposition, instead it noted only that it agreed with defendants’
rationale supporting their motion. An order was entered accordingly on June 15, 2000. After
plaintiff moved for reconsideration, the trial court denied the motion. Plaintiff now appeals as of
right.
On appeal, plaintiff first argues that the trial court erred in failing to independently
determine whether the risk of harm to plaintiff arising from the condition of the railing was
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unreasonably dangerous. We do not agree with plaintiff’s assertion. Although the trial court did
not articulate in great detail its reasoning for granting defendants’ motion, it did note that it
granted summary disposition because it “adopt[ed] the rationale of the Defendants relative to this
motion.” In their brief in support of their motion for summary disposition, Nsoroma and Soul
Harvest argued that they were not liable for plaintiff’s injuries because the risk of harm to
plaintiff was open and obvious, and that the risk was not unreasonably dangerous. Therefore, we
are not persuaded by plaintiff’s assertions that the trial court did not address this issue.
We review de novo a trial court’s decision concerning a motion for summary disposition.
Universal Underwriters Ins Co v Kneeland, 464 Mich 491, 495-496; 628 NW2d 491 (2001).
The trial court in this case did not specify in its ruling whether summary disposition was granted
under MCR 2.116(C)(8) or (10). However, because the trial court looked beyond the pleadings
in rendering its ruling, we review its decision as having been decided pursuant to MCR
2.116(C)(10). Kubisz v Cadillac Gage Textron, Inc, 236 Mich App 629, 633, n 4; 601 NW2d
160 (1999). A motion under MCR 2.116(C)(10) tests the factual sufficiency of the first amended
complaint. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). In evaluating a
motion brought pursuant to this subsection, we review the motion in the same manner as did the
trial court. Specifically, we review the pleadings, deposition testimony, affidavits and other
documentary evidence submitted by the parties in the light most favorable to plaintiff, the
nonmovant, to determine whether a genuine issue of material fact warranting trial exists. Id.
In Schultz v Consumers Power Co, 443 Mich 445, 449; 506 NW2d 175 (1993), our
Supreme Court recognized that to establish a claim of negligence, the plaintiff must present
evidence to support the following elements: (1) that the defendant owed a legal duty to the
plaintiff, (2) that the defendant breached the duty to the plaintiff, (3) that the plaintiff suffered
damages, and (4) that the defendant’s breach proximately caused the damage suffered. More
recently, in Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001), Justice
Taylor, writing for a majority of our Supreme Court, recognized that the open and obvious
doctrine implicated in the present case is not an exception to the duty element of a prima facie
claim of negligence, but “an integral part of the definition of that duty.”
[T]he 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 take reasonable precautions to protect invitees3 from that risk. [Id. at
517.]
To the extent that plaintiff argues in her brief on appeal that the risk of falling from the
stairs was not open and obvious under Michigan negligence law, we disagree. As our Supreme
Court stated in Bertrand v Alan Ford, Inc, 449 Mich 606, 614; 537 NW2d 185 (1995), “the
danger of tripping and falling on [a] step[ ] is generally open and obvious . . . .” Further, this
Court has held that a condition is open and obvious where it is readily observable to the average
person of ordinary intelligence on casual inspection. Hughes v PMG Building, 227 Mich App 1,
3
The parties do not dispute that plaintiff held the status of an invitee on the premises. See Stitt v
Holland Abundant Life Fellowship, 462 Mich 591, 596-597; 614 NW2d 88 (2000).
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10; 574 NW2d 691 (1997); Novotney v Burger King Corp (On Remand), 198 Mich App 470,
475; 499 NW2d 379 (1993). The test is objective rather than subjective, therefore the proper
focus is on whether a reasonable person in the plaintiff’s position would have foreseen the
danger. Joyce v Rubin, ___ Mich App ___; ___ NW2d ____ (Docket No. 223908, issued
January 15, 2002), slip op, 4. Consequently, we share Nsoroma’s and Soul Harvest’s view that
no reasonable juror could conclude that the danger of falling down the stairs was not open and
obvious.
This determination brings us to the question whether plaintiff has presented substantively
admissible evidence creating a genuine issue for the jury regarding whether the risk of harm to
plaintiff was unreasonable. The more refined inquiry, as articulated by the Lugo Court, is
“whether there is evidence that creates a genuine issue of material fact regarding whether there
are ‘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.” Lugo, supra at 517.
However, the Lugo Court qualified its ruling, noting that only “special aspects” that create a
“high likelihood of harm or severity of harm . . . will serve to remove th[e] condition from the
open and obvious danger doctrine.” Id. at 519; see also Woodbury v Bruckner (On Remand), 248
Mich App 684, 692-694; ___ NW2d ___ (2001); Joyce, supra, slip op at 5.
In support of her April 21, 2000, response to defendants’ motion for summary
disposition, plaintiff presented photographs of the stairway where she fell, a copy of the
Department of Labor General Industry Safety Standards Commission’s safety standards, as well
as the affidavits of two experts, architect Douglas Necci and safety consultant George Bombyk.
In their affidavits, Necci and Bombyk averred that “[t]he hand-railing on the right side of the
stairway leading from the mid-way landing to the first floor was designed and installed in
violation of generally accepted architectural standards,” and that “[t]he hand-railing in question
was installed in such a manner that it does not conform to general industry standards as
established by the Department of Labor, General Industry Safety Standards Commission.”4
Plaintiff also presented Bombyk’s March 7, 2000, letter to plaintiff’s counsel detailing his
findings after an examination of the area where plaintiff fell. In his letter, Bombyk concluded
that “the handrail was improperly and defectively installed a distance of 12 inches to the right of
the stairs instead of being affixed to the immediate side of the stringer which would have allowed
easy access to it.” Bombyk also concluded that the rail was “displaced and beyond the reach of
an individual accustomed to grasping a handrail where it was normally installed.” Bombyk also
noted that the handrail did not extend a minimum of 12 inches beyond the edge of the top
landing “which may have played a role in [plaintiff’s] failure to reach it.”
After reviewing the substantively admissible5 evidence in the light most favorable to
plaintiff, Maiden, supra at 120-121, we agree with the trial court that genuine factual disputes
4
Both Necci and Bombyk also averred that the risk of danger to the general public was not open
and obvious.
5
We question whether Bombyk’s letter is substantively admissible evidence that may be
properly considered in reviewing a motion brought pursuant to MCR 2.116(C)(10). Because the
letter would presumably be offered into evidence to prove the truth of the matter asserted therein,
it is hearsay. MRE 801(c); see e.g., Maiden, supra at 124-125. Similarly, the letter does not
appear to fall within any of the exceptions to the hearsay rule. MRE 803. Nonetheless, even
(continued…)
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warranting trial do not exist with regard to whether the risk to plaintiff of falling down the stairs
was unreasonable. In her brief on appeal, plaintiff argues that Necci and Bombyk’s affidavits
create genuine factual disputes for the jury regarding whether the risk of harm to plaintiff was
unreasonable. We disagree. In Lugo, supra at 517-518, our Supreme Court provided examples
of situations where “special aspects” of an open and obvious condition would serve to remove
the condition from the open and obvious doctrine. These included a situation where a thirty-foot
deep pit existed, unguarded, in the middle of a parking lot, or where a floor covered with
standing water in a commercial building blocked the only exit. Id. at 518. The Lugo Court
described these situations as “effectively unavoidable,” and posing “a substantial risk of death or
severe injury . . . .” Id.
In the instant case, the lone characteristic plaintiff has pointed to as creating an unusual
aspect of the stairs, Bertrand, supra at 617, is that the handrail was allegedly mounted on the
wall in violation of general industry and architectural standards. However, we are not persuaded
that the alleged misplacement of the railing “involve[s] an especially high likelihood of injury”
or “risk of severe harm” to the extent that the condition is removed from the open and obvious
doctrine. Specifically, the record evidence is clear that the stairway where plaintiff fell
possessed railings on either side. Therefore, plaintiff was not precluded from walking down the
opposite side of the stairway to avoid any risk of harm caused by the allegedly defective railing.
Joyce, supra, slip op at 6.
The present case is distinguishable from the facts in Woodbury, supra at 686, 694, where
this Court concluded that a deck standing nine feet off of the ground outside of the plaintiff’s
residence without a railing presented an unreasonable risk of harm to the plaintiff in spite of its
open and obvious condition. In sum, we are of the opinion that plaintiff has failed to offer
evidence that the “character, location, or surrounding conditions” of the stairs were “out of the
ordinary,” Spagnuolo v Rudds #2, Inc, 221 Mich App 358, 361; 561 NW2d 500 (1997), to the
extent that the allegedly dangerous condition is removed from the open and obvious doctrine.
It is worthy of note that plaintiff conceded during her deposition that there was nothing
overtly defective with the railing, and that she did not fall as a result of any debris on the stairs.
Further, plaintiff testified that she was not looking when she attempted to grab the railing.
Q. Did you look to reach the handrail?
A. No, because I assumed that it was going to be there . . . .
***
Q. I’m simply asking, when you started down the stairs, did you look before you
placed your hand?
A. No.
(…continued)
considering the letter’s substance, we do not believe that it creates a genuine issue of material
fact regarding whether the open and obvious condition was unreasonably dangerous.
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We are cognizant that our Supreme Court has cautioned lower courts that “[t]he level of
care used by a particular plaintiff is irrelevant to whether the condition created or allowed to
continue by a premises possessor is unreasonably dangerous.” Lugo, supra at 522, n 5.
However, absent any other evidence creating a material factual dispute with respect to whether
special aspects existed that rendered the open and obvious risk of harm to plaintiff unreasonable,
her mere failure to see that the railing was not within her immediate reach does not render the
condition unreasonably dangerous. Id.; Weakley v Dearborn Heights, 240 Mich App 382, 386;
612 NW2d 428 (2000), remanded on other grounds 463 Mich 980 (2001); Millikin v Walton
Manor Mobile Home Park, Inc, 234 Mich App 490, 499; 595 NW2d 152 (1999).
Given our disposition of this issue, we need not address plaintiff’s remaining issue on
appeal.
Affirmed.
/s/ William C. Whitbeck
/s/ Peter D. O’Connell
/s/ Patrick M. Meter
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