LENA NICAJ V EASTLIND HEAT TREAT INC
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STATE OF MICHIGAN
COURT OF APPEALS
LENA NICAJ and VASEL NICAJ,
UNPUBLISHED
December 21, 2006
Plaintiffs-Appellants,
v
No. 270428
Oakland Circuit Court
LC No. 2005-063609-NO
EAST-LIND HEAT TREAT, INC,
Defendant-Appellee.
Before: Wilder, P.J., and Kelly and Borrello, JJ.
PER CURIAM.
Plaintiffs Lena and Vasel Nicaj1 appeal as of right the trial court’s order granting
summary disposition in favor defendant East-Lind Heat Treat, Inc. We reverse and remand.
I. Facts
At the time of the accident giving rise to this action, plaintiff, who was an employee of
her husband Vasel Nicaj’s business, was making a pick up from defendant. She parked her van
outside defendant’s south door. When she parked, the large overhead rolling door for vehicles
was open. Plaintiff exited her vehicle and entered on foot through this door although there was
an open pedestrian door directly adjacent. Plaintiff testified that after she completed her
transaction at the pick-up counter, defendant’s employee Dave Pastorisa came around to help
carry her box. According to plaintiff, when she turned to walk toward the overhead rolling door,
it was not in motion. However, when she attempted to walk under it, it was coming down and
struck her in the head. Pastorisa testified that he used the pedestrian door because he heard the
overhead door coming down. He also testified that he exited before plaintiff and held the door
open for her.
Plaintiff filed a first amended complaint, in which she alleged, in what was labeled a
premises liability claim, that defendant was negligent in:
1
Because Vasel Nicaj’s claim is derivative of that of his wife Lena Nicaj, we employ the
singular term plaintiff throughout this opinion to refer to Lena Nicaj.
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A. Not properly advising invitees of the existence of the overhead door;
B. Not advising invitees of specific areas where they should not stand or walk in
order to avoid dangerous contact with the overhead doors;
C. Not providing the overhead door with sensors and/or other safety devices
which would prevent its closing when individuals were underneath said door or
within a certain distance of said door;
D. Failing to provide horns, sirens, whistles, bells, lights or any other type of
warning devices when said overhead door was being closed;
E. Failing to equip the overhead door with a pressure switch or bump switch to
prevent the overhead door from closing if an individual is underneath said door;
F. Failing to provide Plaintiff, Lena Nicaj, with a safe walkway;
G. Failing to hire and retain adequate and competent personnel to design,
construct, inspect, supervise, maintain and operate the subject overhead door and
its adjacent area and premises;
H. Failing to timely remove, eliminate or prevent the hazardous, dangerous and
unsafe condition and/or timely warn Plaintiff, Lena Nicaj, of the same so she
could avoid dangerous contact with the overhead door; and
I. Failing to adequately instruct its employees of the proper and safe operation of
the overhead door and proper and safe procedures regarding the overhead door so
as not to injure the public and in particular, Plaintiff, Lena Nicaj.
Defendant filed a motion for summary disposition, in which it asserted that plaintiff’s
claim was based solely on premises liability and that the overhead door was open and obvious
without any special aspects. Photographic exhibits attached to the motion demonstrated that near
one end of the parts pick-up counter were the overhead rolling door for vehicle entry and a
pedestrian doorway. Outside the building and to the right of the overhead rolling door was a
sign. The sign, which was approximately eye level to a standing adult and nearly equal to one
fourth the size of an ordinary door, stated: “CAUTION: DO NOT PULL INSIDE THIS DOOR.
IT MAY CLOSE WITHOUT WARNING.”
On the trial court’s leave to file an amended complaint to add an ordinary negligence
claim, plaintiff filed a second amended complaint. In an ordinary negligence count, plaintiff
alleged that defendant, by its employee Joseph Adam and others, breached its duties to plaintiff
by:
A. Negligently lowering the overhead door by depressing a manual switch,
without ascertaining if people were nearby;
B. Negligently walking away from the manual switch area after depressing it and
thereby leaving this dangerous instrumentality unattended while descending;
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C. Failing to manually stop the garage door from descending prior to hitting the
Plaintiff;
D. Failing to position the manual switch in a location which would allow the
operator to see persons in the area and thereby permit the operator to avoid
lowering the door to cause injury;
E. Other negligent acts and/or omissions, not yet known but which maybe shown
by the proofs[.]
Defendant filed another motion for summary disposition reiterating its previous argument
with respect to plaintiff’s premises liability claim. With respect to plaintiff’s ordinary negligence
claim, defendant argued that the open and obvious defense remains applicable because the
condition of the land could not be eliminated from consideration and, therefore, plaintiff’s
ordinary negligence claim actually sounded in premises liability.
Plaintiff filed a response to defendant’s motion citing evidence that, after picking up her
parts at the counter, she walked toward the overhead rolling door and was unaware that it was
moving down until it hit her. Plaintiff argued that because defendant failed to keep the door
raised until clear of pedestrian traffic, ordinary negligence was applicable. Plaintiff also argued
that while the closed door may have been open and obvious, that defendant would close the door
when she was walking toward and under it was not.
In reply, defendant argued that plaintiff’s ordinary negligence claim failed because
defendant’s conduct was not independent of the condition of the premises. Defendant also
asserted that plaintiff’s premises claim failed because the condition was not unavoidable when a
pedestrian door was adjacent to the rolling overhead door and, in fact, was being held open by
Pastorisa. Further, plaintiff admitted that she had been to the pick-up counter hundreds of times.
Defendant asserted that she must, therefore, have known about the door and seen the warning
sign. Defendant further asserted that an overhead rolling door is an “utterly common condition.”
At the motion hearing, the trial court ruled:
All right. This is Defendant’s motion for summary disposition pursuit
[sic] to MCR 2.116C8 and C10. Counsel, even you say, it’s heavy and huge. The
Defendant’s motion is granted as the hazard was open and obvious. While
Plaintiff contends there was special aspects which would defeat the summary
disposition, there weren’t any special aspects of the nature anticipated in Lugo.
Specifically, the hazard was not unavoidable, nor was there a significant risk of
serious injury.
Plaintiff has also filed a claim for ordinary negligence, Plaintiff alleges
Defendant’s employee set the door in motion which was negligence on his part.
Plaintiff relies on Layer versus Kitchen, 2266 Mich ap 482 [sic], which permitted
a negligence claim to proceed as well as a promises [sic] liability claim. In Layer
[sic], the Plaintiff and Defendant were using a front-end loader when the Plaintiff
was crushed by the heavy piece of equipment. The Court of appeals allowed the
negligence claim to proceed as the claim involved an instrumentality that was not
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affixed to the premises. In this case, the instrumentality was affixed to the
premises. Further, this case is more similar to several unpublished cases from the
Court of Appeals where the negligence claims were dismissed. Thus the
negligence claim is also subject to the open and obvious defense and it is also
dismissed. So, summary disposition is granted as to both claims.
The trial court entered an order granting defendant’s motion for summary disposition as to all of
plaintiff’s claims.
II. Analysis
Plaintiff contends that the trial court erred in dismissing her premises liability claim and
ordinary negligence claim on the basis that the condition that caused her injury was open and
obvious. We agree that the trial court erred, but for a different reason. Plaintiff’s claims sound
only in ordinary negligence, not premises liability and, therefore, the open and obvious doctrine
is inapplicable.
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). Summary disposition is
proper under MCR 2.116(C)(10) if the documentary evidence submitted by the parties, viewed in
the light most favorable to the nonmoving party, shows that there is no genuine issue regarding
any material fact and the moving party is entitled to judgment as a matter of law. Veenstra v
Washtenaw Country Club, 466 Mich 155, 164; 645 NW2d 643 (2002).
It is well established that “the gravamen of an action is determined by reading the claim
as a whole,” Simmons v Apex Drug Stores, Inc, 201 Mich App 250, 253; 506 NW2d 562 (1993),
and looking “beyond the procedural labels to determine the exact nature of the claim,”
MacDonald v Barbarotto, 161 Mich App 542, 547; 411 NW2d 747 (1987).
“To establish a prima facie case of negligence, a plaintiff must prove: (1) the defendant
owed a duty to the plaintiff, (2) the defendant breached that duty, (3) the defendant's breach
caused the plaintiff's injuries, and (4) the plaintiff suffered damages.” Kosmalski v St John's
Lutheran Church, 261 Mich App 56, 60; 680 NW2d 50 (2004). In general, a premises possessor
owes a duty to an invitee to exercise reasonable care to protect the invitee from an unreasonable
risk of harm caused by a dangerous condition on the land. Bertrand v Alan Ford, Inc, 449 Mich
606, 609; 537 NW2d 185 (1995). Where an injury arises out of a condition on the land, rather
than out of the activity or conduct that created that condition, the action lies in premises liability.
James v Alberts, 464 Mich 12, 18-19; 626 NW2d 158 (2001).
In this case, the analysis in the lower court centered around Laier v Kitchen, 266 Mich
App 482, 484; 702 NW2d 199 (2005), in which the decedent was killed in an accident on the
defendant’s property while assisting the defendant with repairs on a front-end loader. During the
repairs, the bucket loader dropped, killing the decedent. Id. In addition to alleging premises
liability, the plaintiff also alleged that the defendant “owed a duty to [the plaintiff] to use due
care and caution in operation and control of the tractor and bucket.” Id. at 493. This Court held
that this claim was one of ordinary negligence because the defendant’s conduct was the alleged
basis of liability independent of premises liability. Id. The Court further held that the open and
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obvious danger doctrine does not apply to actions for ordinary negligence. Id. at 500 (Neff, J),
502 (Hoekstra, J).
Similarly in this case, plaintiff was struck in the head with an overhead rolling door that
was activated by defendant’s employee pressing a button. Nonetheless, plaintiff attempts to
characterize various individual aspects of the door as a dangerous condition. For example,
plaintiff names the absence of audible warning devices, the absence of motion sensors, and the
position of the activation button. However, none of the alleged aspects of the door caused the
door to come down without warning. Even without the named aspects, the door would not have
come down unless and until a person pressed the button activating the door. As such,
defendant’s conduct was the basis for the alleged liability. Thus, although plaintiff’s injury
occurred on defendant’s premises, plaintiff has not pleaded a premises liability claim. Her claim,
despite being labeled premises liability and ordinary negligence, sounds only in ordinary
negligence.
Plaintiff also asks us to determine whether comparative negligence is a basis for granting
summary disposition. An issue is not properly preserved for appellate review if it is not raised
before, addressed, or decided by the trial court. Polkton Charter Twp v Pellegrom, 265 Mich
App 88, 95; 693 NW2d 170 (2005). Plaintiff concedes that the trial court never addressed this
issue, but asserts that defendant raised it at the motion hearing stating that plaintiff “has been in
and out of that door three to four days a week for 18 years; so it’s not an unknown quantity” and
that plaintiff “chose not to use the pedestrian door; she chose to walk through a fourteen by
fourteen foot space with a closing overhead door in front of her.” However, these assertions
were not couched in terms of a comparative negligence argument. Rather, they were part of
defendant’s argument that the open and obvious doctrine should be applied. Because
comparative negligence was neither raised nor addressed, the this issue is unpreserved for our
review.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Kurtis T. Wilder
/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello
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