SUSAN HEIDER V COMFORT MENOMINEE ASSOC
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
SUSAN HEIDER,
UNPUBLISHED
May 27, 2004
Plaintiff-Appellant,
v
BARLEY TRUCKING & EXCAVATING, INC,
No. 251217
Menominee Circuit Court
LC No. 02-009963-NO
Defendant-Appellee,
and
COMFORT MENOMINEE ASSOCIATES,
Defendant.
Before: Whitbeck, C.J., and Griffin and Borrello, JJ.
PER CURIAM.
Plaintiff Susan Heider appeals as of right from the trial court’s order granting summary
disposition to defendants under MCR 2.116(C)(10). Plaintiff tripped and fell over a piece of
asphalt when she was traversing a parking lot that was being resurfaced. Defendant Comfort
Menominee Associates1 owned the premises, and defendant Barley Trucking & Excavating,
Inc.,2 was the general contractor. The paving subcontractor was not named as a party. Because
we agree with the trial court that the debris over which plaintiff tripped was open and obvious as
a matter of law, we affirm the trial court’s ruling.
We review a trial court’s decision on a motion for summary disposition under MCR
2.116(C)(10) de novo. On review, we “‘must consider the available pleadings, affidavits,
depositions, and other documentary evidence in a light most favorable to the nonmoving party
and determine whether the moving party was entitled to judgment as a matter of law.’”
1
Plaintiff does not appeal the trial court’s ruling as to defendant Comfort Menominee
Associates.
2
“Defendant,” unless otherwise noted.
-1-
Michigan Ed Employees Mutual Ins Co v Turow, 242 Mich App 112, 114; 617 NW2d 725
(2000), quoting Unisys Corp v Comm’r of Ins, 236 Mich App 686, 689; 601 NW2d 155 (1999).
On appeal, plaintiff contends that defendant negligently breached its contractual duty to
clean up debris from the parking lot area. But not only did plaintiff fail to plead negligent
performance of a contractual duty in her original or subsequent amended complaints, she
presented no evidence regarding the contract between the premises owner and defendant. In her
brief on appeal, plaintiff simply states that defendant had a contractual duty to clean up the
debris, and that “it is a fair inference that the laborer negligently failed to discover the piece of
asphalt that tripped plaintiff.” We decline to address plaintiff’s claim. See Booth Newspapers,
Inc v University of Michigan Bd of Regents, 444 Mich 211, 234; 507 NW2d 422 (1993) (this
Court is not obligated to review unpreserved claims of error), and Mudge v Macomb Co, 458
Mich 87, 104-105; 580 NW2d 845 (1998) (where a party merely announces a position and
provides no authority to support it, we consider the issue waived).
Further, we agree that regardless how plaintiff characterizes her claim, the trial court
correctly held that as a matter of law, the piece of asphalt was open and obvious because no
reasonable mind could conclude otherwise. The open and obvious defense, which extends to
claims against general contractors, see Ghaffari v Turner Construction Co, 259 Mich App 608,
614; 676 NW2d 259 (2003), shields a defendant from liability where an average pedestrian of
ordinary intelligence should have discovered the offending item on casual inspection. Hughes v
PMG Building, Inc, 227 Mich App 1, 10; 574 NW2d 691 (1997).
Here, plaintiff testified that the piece of asphalt was approximately four inches thick and
about the size of a dinner plate in diameter. Plaintiff also testified that she was walking in an
area which she clearly knew was under construction. Although plaintiff stated that the piece of
asphalt was black, matching the pavement underneath, her fall occurred in the daytime, and there
was nothing preventing plaintiff from noticing the large piece of debris in her path. Thus,
plaintiff did not present a genuine issue of material fact that the debris was not open and obvious,
and she did not present a genuine issue of material fact that the debris had “special aspects” that
made it unusually dangerous. See Lugo v Ameritech Corp, 464 Mich 512, 517; 629 NW2d 384
(2001).
Affirmed.
/s/ William C. Whitbeck
/s/ Richard Allen Griffin
/s/ Stephen L. Borrello
-2-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.