SAMUEL J MAY V BLARNEY CASTLE OIL CO
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STATE OF MICHIGAN
COURT OF APPEALS
SAMUEL J. MAY,
UNPUBLISHED
December 21, 2004
Plaintiff-Appellant,
No. 249354
Emmet Circuit Court
LC No. 02-007204-NO
V
BLARNEY CASTLE OIL COMPANY, d/b/a
PLEASANT VIEW EASY MART,
Defendant-Appellee.
Before: Meter, P.J., and Wilder and Schuette.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order granting defendant’s motion for
summary disposition in this premises liability case. We affirm. This appeal is being decided
without oral argument pursuant to MCR 7.214(E).
Plaintiff, an employee of a landscaping company hired to clear snow from defendant’s
premises, fell to the ground from a platform erected at the rear of defendant’s building. The
platform, which held refrigeration equipment, was located ten to twelve feet above the ground. It
was protected on three sides by two guardrails and the equipment, but one side was left open to
allow access to the equipment. Plaintiff finished shoveling snow off the platform, and then
began walking backward toward the open end. He slipped off the open end and fell to the
ground, sustaining injuries.
Plaintiff filed suit alleging that defendant negligently failed to maintain the premises in a
safe condition and to warn of the unsafe condition. Defendant moved for summary disposition
pursuant to MCR 2.116(C)(10), arguing that it owed no duty to warn plaintiff because the
condition was open and obvious, and that no special aspects of the condition made it
unreasonably dangerous in spite of its open and obvious nature. The trial court granted the
motion, finding that the condition was open and obvious, and that defendant should not have
foreseen that contractors would not take reasonable care for their own safety.
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
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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. 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. at 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). 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 an invitee 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).
We affirm. The danger presented by the platform was open and obvious. Novotney,
supra. Moreover, plaintiff’s argument that the platform presented an unreasonable risk of harm
in spite of its open and obvious nature is without merit. The platform, unlike the porch in
Woodbury v Bruckner (On Remand), 248 Mich App 684; 650 NW2d 343 (2001), was enclosed
on three sides by two guardrails and refrigeration equipment, and was not designed for casual use
by occupants of the building to which it was attached. The platform was designed to allow
access to the refrigeration equipment stored on it. Defendant would have had no reason to
foresee that the only persons who would be on the platform, i.e., equipment maintenance workers
or other workers such as plaintiff, would not take necessary precautions to guard against the
obvious danger presented by the unguarded side of the platform. Perkoviq v Delcor Homes-Lake
Shore Pointe, Ltd, 466 Mich 11, 18-20; 643 NW2d 212 (2002). Plaintiff admitted that after he
finished shoveling snow off the platform he simply started walking backward, and misjudged the
length of the platform. Plaintiff failed to demonstrate the existence of any special aspect that
made the condition of the platform unreasonably dangerous in spite of its open and obvious
nature. Lugo, supra. Had plaintiff simply watched his step, any risk of harm would have been
obviated. Spagnuolo v Rudds #2, Inc, 221 Mich App 358, 360; 561 NW2d 500 (1997).
Summary disposition was proper.
Affirmed.
/s/ Patrick M. Meter
/s/ Kurtis T. Wilder
/s/ Bill Schuette
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