JOSEPH W SIDOROWICZ V CHICKEN SHACK INC
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STATE OF MICHIGAN
COURT OF APPEALS
JOSEPH W. SIDOROWICZ,
UNPUBLISHED
January 17, 2003
Plaintiff-Appellant,
v
No. 239627
Macomb Circuit Court
LC No. 01-000395-NO
CHICKEN SHACK, INC.,
Defendant-Appellee.
Before: Murray, P.J., and Sawyer and Fitzgerald, JJ.
PER CURIAM.
Plaintiff appeals as of right the order granting defendant’s motion for summary
disposition in this negligence action. We affirm.
This action arises as a consequence of plaintiff allegedly sustaining injuries when he
slipped and fell on a wet bathroom floor at defendant Chicken Shack, Inc. Plaintiff filed this
premises liability action that was subsequently dismissed by the trial court pursuant to MCR
2.116(C)(10) on the grounds that the wet floor constituted an open and obvious condition from
which defendant had no duty to protect plaintiff and that no evidence was introduced to permit a
finding that the condition existed a sufficient length of time that defendant should have had
knowledge of it.
I
At the relevant time, plaintiff was a twenty-seven year old male suffering from multiple
sclerosis who was legally blind due to the multiple sclerosis. On July 18, 2000, at approximately
1:00 p.m., plaintiff, his fiancé, his fiancé’s 7-year-old son, and plaintiff’s eight-year-old brother
went to defendant Chicken Shack for lunch. Plaintiff alleged in his complaint that he was a
“reasonably strong and healthy person” who was severely injured when he slipped and fell due to
water on the floor in the men’s restroom. Plaintiff alleged that defendant breached a duty to
plaintiff by:
(a) Negligently maintaining a dangerous and defective condition on a
portion of the premises where it knew or should have known invitees would
traverse;
(b) Failing to keep the rest room floor area in a safe condition;
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(c) Failing to take precautionary measures to correct or alleviate the unsafe
condition created by the water on the floor;
(d) Failing to inspect said premises for dangerous conditions and failing to
warn Plaintiff and others similarly situated of the unsafe condition created by the
water on the floor, after such time as Defendant knew or could reasonably have
known of the unsafe condition;
(e) Failing to provide warning signs;
(f) Creating a dangerous condition by improperly maintaining the
premises;
(g) Performing other acts of negligence not yet known by Plaintiff but
which will be ascertained during the discovery of said litigation.
Plaintiff testified in his deposition that he suffers from multiple sclerosis (MS). He
indicated that the MS causes him to shake, gives him mood swings, and has caused him to
become legally blind. He wears glasses that allow him to see “outlines” and to watch television
at a close distance. At the time of the fall, he walked with a cane.
Plaintiff testified that his brother and his fiancé’s son entered the restroom ahead of him
and were washing their hands when he walked in. Plaintiff indicated that he slipped on the
restroom floor “right at the entrance” and that his head hit the wall, then the handicap metal bar,
and then the floor. He testified that there was “at least a quarter inch of water on the floor” and
that he had no idea how long the water had been on the floor. When he got up off the floor, his
shorts were wet. Plaintiff denied asking for a cup of water before entering the restroom and
denied carrying a cup of water into the restroom. He also denied sending someone to the car for
his cane after the fall.
An employee of defendant testified that Chicken Shack has a restroom for male
employees and a restroom for female employees. The restrooms are not open to the public.
However, an employee can use an access button to allow patron’s access to the restroom. The
employee testified that she did not fill out an injury form after plaintiff’s fall because plaintiff
indicated that he was not hurt. She testified that plaintiff’s left side was wet “just up high around
the hip.” After the fall, the employee inspected the bathroom and discovered a little bit of water,
“just a little spot, probably like a cup of water.” The employee testified that the bathrooms are
inspected three times a day, at approximately 9:00 a.m., 3:00 p.m., and 8:00 p.m. She indicated
that if an employee used the restroom and noticed a spill on the floor, the employee would notify
her or else mop the floor.
II
This Court reviews a trial court’s grant of a motion for summary disposition de novo.
Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). When reviewing a
motion brought under MCR 2.16(C)(10), the documentary evidence is considered in a light most
favorable to the nonmoving party to determine whether the movant is entitled to judgment as a
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matter of law or whether a genuine issue of material fact exists. Ritchie-Gamester v Berkley, 461
Mich 73, 76; 597 NW2d 517 (1999).
Plaintiff argues that the hazardous condition was not open and obvious to him because he
is legally blind. However, the Michigan Supreme Court has rejected plaintiff’s argument. There
is no dispute that landowners have a legal duty to exercise reasonable care to protect invitees
from an unreasonable risk of harm caused by a dangerous condition on the land that the owners
know 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). However, a premises
owner does not have a duty to protect invitees from open and obvious dangers unless special
aspects of that condition posed an unreasonable risk of harm. Lugo v Ameritech Corp, Inc, 464
Mich 512, 517; 629 NW2d 384 (2001). Special aspects that serve to remove a condition from
the open and obvious danger doctrine are those that “give rise to a uniquely high likelihood of
harm or severity of harm if the risk is not avoided.” Id. at 519. In applying this standard, the
Lugo Court noted that:
In considering whether a condition presents such a uniquely dangerous potential
for severe harm as to constitute a “special aspect” and to avoid barring liability in
the ordinary manner of an open and obvious danger, it is important to maintain
the proper perspective, which is to consider the risk posed by the condition a
priori, that is, before the incident involved in a particular case. It would, for
example, be inappropriate to conclude in a retrospective fashion that merely
because a particular plaintiff, in fact, suffered harm or even severe harm, that the
condition at issue in a case posed a uniquely high risk of severe harm. This is
because a plaintiff may suffer a more or less severe injury because of
idiosyncratic reasons, such as having a particular susceptibility to injury or
engaging in unforeseeable conduct, that are immaterial to whether an open and
obvious danger is nevertheless unreasonably dangerous. [Id. at 519, n 2.]
By focusing on the unsafe condition before the plaintiff is injured, the Lugo Court rejected any
consideration of “special aspects of the plaintiff.”1 Applying this analytical approach to an
ordinary pothole, the court reemphasized the focus on the condition and not the plaintiff and
stated that “an ‘ordinarily prudent’ person would typically be able to see the pothole and avoid
it.” Id. at 520.
Viewing the facts in the light most favorable to plaintiff, the unsafe condition consisted
of water on the floor in the men’s restroom. Plaintiff was unable to see this condition because of
his blindness, but this condition would have been open and obvious to an ordinarily prudent
person. No evidence has been presented indicating that the “special aspects” of the unsafe
condition would remove this case from the open and obvious doctrine. Hence, plaintiff failed to
show that defendant should have expected plaintiff would not discover the unsafe condition or
fail to protect himself from it.
1
In Lauff v Wal-Mart Stores, Inc, 2002 US Dist LEXIS 19080, the United States District Court
for the Western District of Michigan, Southern Division, ruled that special aspects of the invitee,
namely blindness, are immaterial to whether an open and obvious danger is unreasonably
dangerous.
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We need not address the remaining issue because this case has been fully resolved by our
decision on the open and obvious danger issue.2
Affirmed.
/s/ Christopher M. Murray
/s/ David H. Sawyer
/s/ E. Thomas Fitzgerald
2
We note, however, that plaintiff presented no evidence with regard to how long the unsafe
condition existed in the men’s restroom and failed to demonstrate that defendant knew or should
have known about the unsafe condition.
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