CYNTHIA S GRATOPP V TANGER PROPERTIES LTD PARTNERSHIP

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STATE OF MICHIGAN COURT OF APPEALS CYNTHIA S. GRATOPP and ROBERT GRATOPP, UNPUBLISHED February 28, 2003 Plaintiffs-Appellants, and LUMBERMENS COMPANY, MUTUAL CASUALTY Intervening Plaintiff, v TANGER PROPERTIES LTD. PARTNERSHIP and HODGINS ASPHALT PAVING, INC., No. 237663 Ogemaw Circuit Court LC No. 00-653370-NO Defendants-Appellees. Before: Kelly, P.J., and White and Hoekstra, JJ. PER CURIAM. Plaintiffs appeal as of right the circuit court’s orders granting defendants’ motions for summary disposition. We affirm in part, and vacate and remand in part. This appeal is being decided without oral argument pursuant to MCR 7.214(E). Cynthia Gratopp was employed at a store in a mall owned by Tanger Properties Limited Partnership. Hodgins Asphalt Paving, Inc., had entered into both a written contract with the mall to remove snow from the parking lot and to shovel and salt sidewalks and a verbal contract to clear snow from around dumpsters within twenty-four hours after plowing parking lots. On January 17, 1999 Cynthia Gratopp made several trips to her store’s dumpster to dispose of trash. The mall’s tenant handbook provided that trash was to be placed in dumpsters. The dumpster was located behind the mall, and was positioned on a curb. Plaintiff testified that although there was snow in front of the dumpster, she could walk up to the front of the dumpster and throw garbage in. She testified that at the sides and back of the dumpster the snow came out about a foot or two, was at least ankle deep, and was crusty and iced over. After Cynthia Gratopp disposed of the last load of trash she walked behind the dumpster to close the lid. As she did so she stepped on an accumulation of snow and ice, lost her footing, and fell to the ground, sustaining injuries. -1- Plaintiffs filed suit alleging that Cynthia Gratopp was on Tanger’s property as a business invitee, that Tanger negligently failed to maintain the premises in a reasonably safe condition and to warn of the unsafe condition, and that Hodgins breached its contract with Tanger by failing to remove snow and ice from around the dumpster. Robert Gratopp alleged loss of consortium. Defendants filed separate motions for summary disposition pursuant to MCR 2.116(C)(10). Hodgins argued that the snow behind the dumpster was a natural accumulation and was open and obvious, and that no genuine issue of fact existed as to whether it acted reasonably in performing its contractual duties. Tanger argued that the snow behind the dumpster was open and obvious, and that no special aspects of the condition made it unreasonably dangerous in spite of its open and obvious condition. Plaintiffs conceded that the accumulation of snow behind the dumpster was an open and obvious condition, but argued the mall policy that required that dumpster lids be closed was a special aspect that made the condition unreasonably dangerous in spite of its open and obvious nature. The circuit court disagreed, and concluded that no special aspects existed that made the open and obvious condition unreasonably dangerous. We review a trial court’s decision on a motion for summary disposition de novo. Auto Club Group Ins Co v Burchell, 249 Mich App 468, 479; 642 NW2d 406 (2001). To establish a prima facie case of negligence, a plaintiff must prove: (1) that the defendant owed a duty to the plaintiff; (2) that the defendant breached the duty; (3) that the defendant’s breach of duty proximately caused the plaintiff’s injuries; and (4) that the plaintiff suffered damages. Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). A possessor of land has a duty to exercise reasonable care to protect an invitee from an unreasonable risk of harm caused by a dangerous condition on the land. A possessor of land may be held liable for injuries resulting from negligent maintenance of the land. The duty to protect an invitee does not extend to a condition from which an unreasonable risk of harm cannot be anticipated, or from a condition that is so open and obvious that an invitee could be expected to discover it for himself. Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185 (1995). The open and obvious danger doctrine attacks the duty element that a plaintiff must establish in a prima facie negligence case. Id., 612. 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 the danger upon casual inspection. Novotney v Burger King Corp (On Remand), 198 Mich App 470, 474-475; 499 NW2d 379 (1993). However, if special aspects of a condition make even an open and obvious risk unreasonably dangerous, a possessor of land must take reasonable precautions to protect invitees from that risk. If such special aspects are lacking, the open and obvious condition is not unreasonably dangerous. Lugo v Ameritech Corp, 464 Mich 512, 517-519; 629 NW2d 384 (2001). Plaintiffs argue the circuit court erred by granting defendants’ motions for summary disposition. They concede the snow behind the dumpster was an open and obvious condition, but assert that because the mall required tenants to place trash in dumpsters and to close dumpster lids, Cynthia Gratopp had no alternative other than to approach the dumpster from -2- behind in order to close the lid. Plaintiffs assert that under these circumstances, the mall’s policy constituted a special aspect of the condition that rendered the condition unreasonably dangerous in spite of its open and obvious nature. In addition, plaintiffs assert that questions of fact existed as to whether Hodgins negligently performed its contractual duties. We affirm the circuit court’s grant of summary disposition to Tanger, and vacate and remand as to Hodgins. The Supreme Court held in Quinlivan v Great Atlantic & Pacific Tea Co, 395 Mich 244, 261; 235 NW2d 732 (1975), that a premises owner owes a business invitee the duty to take reasonable measures within a reasonable period of time after an accumulation of snow and ice to diminish the hazard of injury to the invitee, and rejected the proposition that ice and snow are open and obvious hazards in all circumstances and cannot give rise to liability. Subsequently, this Court has clarified that the snow and ice analysis in Quinlivan is now subsumed in the newly articulated rule set forth in Lugo [supra]. Specifically, the analysis in Quinlivan will now be part of whether there are special aspects of the condition that make it unreasonably dangerous even if the condition is open and obvious. [Corey v Davenport College of Business (On Remand), 251 Mich App 1, 8; 649 NW2d 392 (2002).] Cynthia Gratopp made several trips to the dumpster to dispose of trash, and on each trip approached it from the front without difficulty. She testified that she stepped to the back of the dumpster to attempt to close the lid notwithstanding the presence of snow in that area. Plaintiff presented evidence that the mall manager had requested that tenants keep their dumpster lids closed. This policy, however, was not a special aspect of the accumulation of snow behind the dumpster itself. Plaintiffs failed to demonstrate the existence of any special aspects that made the condition unreasonably dangerous in spite of its open and obvious condition. The circuit court correctly granted Tanger’s motion for summary disposition. Lugo, supra; Corey, supra. The circuit court granted summary disposition in favor of Hodgins on the ground that the condition of which plaintiffs complained was open and obvious. Hodgins was not the owner of the property on which the injury occurred; therefore, application of the open and obvious danger doctrine, an aspect of premises liability, to the issue of whether a genuine issue of fact existed as to whether Hodgins performed negligently under its contract was erroneous. As a general rule, those persons or parties foreseeably injured by the negligent performance of a contractual duty are owed a duty of care. Joyce v Rubin, 249 Mich App 231, 243; 642 NW2d 360 (2002). The circuit court did not address this aspect of defendant’s motion and plaintiffs’ claim. We therefore vacate the grant of summary disposition to Hodgins and remand for reconsideration of Hodgins’ motion. -3- Affirmed in part, and vacated and remanded in part. We do not retain jurisdiction. /s/ Kirsten Frank Kelly /s/ Helene N. White /s/ Joel P. Hoekstra -4-

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