CATHY JANE SALISBURY V SUNDANCE INC
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STATE OF MICHIGAN
COURT OF APPEALS
CATHY JANE SALISBURY,
UNPUBLISHED
December 28, 2006
Plaintiff-Appellant,
v
No. 271328
Shiawassee Circuit Court
LC No. 05-002046-NO
SUNDANCE, INC., and OLD WEST
PROPERTIES, L.L.C.,
Defendant-Appellees.
Before: Servitto, P.J., and Fitzgerald and Talbot, JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting defendants’ motion for summary disposition
pursuant to MCR 2.116(C)(10). We affirm.
This case arises out of injuries suffered by plaintiff when she tripped over a collapsed wet
floor sign, which was lying partially underneath a table and partially in the travel aisle of
defendants’ Taco Bell. Plaintiff initially argues that the trial court erroneously ruled that there
was no genuine issue of material fact regarding whether a collapsed wet floor sign constituted an
unreasonably dangerous condition. We disagree.
On September 14, 2003, plaintiff and her boyfriend, Ronald Larkins, Jr., went to Taco
Bell in Owosso, Michigan, for a meal. Plaintiff placed a food order at the counter. Plaintiff
waited at the counter until the food was ready, at which time she picked up her tray and walked
to the beverage counter to fill the cups she had purchased. Larkins was already seated at a table.
After filling the beverage cups, plaintiff picked up the tray, turned around, and walked toward
the table where Larkins was sitting. After taking a couple of steps toward the table, plaintiff’s
foot made contact with a collapsed “caution, wet floor” sign, causing her to trip and fall. The
caution sign was bright yellow in color, and was positioned partially in the travel aisle and
partially beneath a table and chair, which was next to the beverage counter. The sign plaintiff
tripped on was not in the upright position, but rather, was collapsed and lying on the floor. The
floor in the area was dry.
When plaintiff was asked whether she would have seen the sign had her hands been free
of the tray, she responded, “probably.” Plaintiff indicated that she was sure she “probably would
have” seen the sign had she turned and looked in its direction at the moment she was
approaching the area of the sign. Plaintiff testified that the reason she did not look down before
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walking away from the beverage counter was because she was carrying the tray of food and
drinks and indicated that it would have been difficult to move the tray around. Although Larkins
did not see plaintiff fall, he did see the collapsed caution sign when he walked to his table.
When asked how he avoided stepping on the sign, Larkins testified, “I must have, you know,
seen it and walked around it.”
Defendants filed a motion for summary disposition, arguing that the open and obvious
danger doctrine barred plaintiff’s claims. The trial court granted defendants’ motion, ruling that
the collapsed wet floor sign was an open and obvious danger, and that no special aspects existed.
On appeal, this Court reviews a trial court’s decision on a motion for summary disposition de
novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). A motion brought
pursuant to MCR 2.116(C)(10) should be granted when there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Miller v Purcell, 246 Mich App
244, 246; 631 NW2d 760 (2001).
In a premises liability action, the plaintiff must prove the elements of negligence: (1) that
defendant had a duty to plaintiff, (2) the defendant breached that duty, (3) an injury proximately
resulted from that breach, and (4) the plaintiff suffered damages. Taylor v Laban, 241 Mich App
449, 452-453; 616 NW2d 229 (2000). Different standards of care are owed to a plaintiff in
accordance with the plaintiff’s status on the land. A person entering upon the property of
another for a reason directly connected to the landowner’s commercial business interest is an
invitee. Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 596-597; 614 NW2d 88
(2000), on rem 243 Mich App 461; 646 NW2d 427 (2000). An invitor has a common law duty
to exercise reasonable care to protect an invitee from an unreasonable risk of harm caused by a
dangerous condition on the land. Lugo v Ameritech, 464 Mich 512, 516; 629 NW2d 384 (2001).
The basic duty to protect an invitee does not generally include removal of open and
obvious dangers: “[W]here the dangers are known to the invitee or are so obvious that the
invitee might reasonably be expected to discover them, an invitor owes no duty to protect or
warn the invitee unless he should anticipate the harm despite knowledge of it on behalf of the
invitee.” Corey v Davenport College of Business (On Remand), 251 Mich App 1, 3; 649 NW2d
392 (2002), quoting Riddle v McLouth Steel Products Corp, 440 Mich 85, 96; 485 NW2d 676
(1992). Whether a danger is open and obvious depends on whether it is reasonable to expect that
an average person of ordinary intelligence would have discovered the danger upon casual
inspection. Teufel v Watkins, 267 Mich App 425, 427; 705 NW2d 164 (2005). The test is
objective and the court should look to whether a reasonable person in the plaintiff’s position
would foresee the danger, not whether a particular plaintiff should have known that the condition
was hazardous. Corey, supra at 5.
In the instant case, the collapsed wet floor sign was an open and obvious danger if it was
reasonable to expect that an average person of ordinary intelligence would have discovered it
upon casual inspection. Teufel, supra at 427. The caution sign was bright yellow in color and
lying on the floor, partially in the travel aisle and partially underneath a table and/or chairs. The
restaurant had a dark brown tile floor. The contrast between the floor and a bright yellow sign is
presumably strong. Larkins testified that he saw the sign while walking toward his table and was
able to avoid it by stepping around it. This demonstrates that the sign was visible to those who
looked in its general direction. Plaintiff testified that she “probably would have” seen the sign
had she looked down upon walking away from the beverage counter. That trial court noted that a
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reasonable person in plaintiff’s position would have glanced down at the vicinity of her projected
path, if only casually and for a brief moment.
Plaintiff also argued that even if the sign is considered an open and obvious danger, there
were special aspects, which rendered it unreasonably dangerous. Plaintiff argued that “the sign
protruding into the aisle is tantamount to a thirty foot hole because its presence was neither
anticipated nor open and obvious. Additionally, the small portion of the sign that protruded into
the aisle was unreasonably dangerous because the aisles were narrow, and tables and chairs
located on both sides were bolted to the floor, making them immovable.” Plaintiff maintained
that these factors, combined with her carrying a tray while walking to her table, made the
existence of the sign unreasonably dangerous.
If there are “special aspects” of a condition that make even an “open and obvious”
condition “unreasonably dangerous,” the invitor retains a duty to undertake reasonable
precautions to protect invitees from such danger. Mann v Shusteric Enterprises, 470 Mich 320,
328-329; 683 NW2d 573 (2004). In determining whether a danger presents an unreasonable risk
of harm despite being open and obvious, a court must consider whether special aspects exist,
such as a condition which is unavoidable or which poses an unreasonably high risk of severe
injury. Lugo, supra at 516-517. The determination must be based on the nature of the condition
at issue, and not on the degree of care used by the invitee. Lugo, supra at 523-524.
Plaintiff cannot demonstrate that the sign was unavoidable. Plaintiff acknowledged that
the sign was visible. Notably, her companion saw it and walked around it. Given that the sign
was visible to anyone who looked in its general direction, the sign was avoidable. Patrons
presumably would have stepped over it, or taken a different path to their tables upon seeing it.
Similarly, plaintiff cannot show that the sign posed an unreasonably high risk of severe
injury. Insofar as any object left lying on the floor presents a risk that someone may trip and fall
over it, the wet floor sign presented a danger. However, the type of danger contemplated by
Lugo is of a vastly different nature. The critical inquiry is whether there is something unusual
about the sign, which because of its character, location, or surrounding conditions gives rise to an
unreasonable risk of harm. Bertrand v Alan Ford, Inc, 449 Mich 606, 617; 537 NW2d 185
(1995). The wet floor sign did not give rise to an unreasonably high risk of severe injury.
Accordingly, plaintiff’s premises liability claim is barred by the open and obvious doctrine.
Further, plaintiff argues, to the extent that her claim sounds in ordinary negligence, the
open and obvious danger doctrine does not preclude it. However, plaintiff acknowledged in her
brief opposing defendants’ motion for summary disposition, “[t]his action is a premises liability
action.” It is well established that “the gravamen of an action is determined by reading the claim
as a whole, and looking beyond the procedural labels to determine the exact nature of the claim.”
Tipton v William Beaumont Hosp, 266 Mich App 27, 33; 697 NW2d 552 (2005) (citations
omitted). If plaintiff’s argument were taken to its natural conclusion, the open and obvious
danger doctrine would never be applicable, given that a premises liability cause of action by
definition encompasses an ordinary negligence cause of action, to which the open and obvious
danger doctrine does not apply. Plaintiff’s claim is properly characterized as a premises liability
claim, to which the open and obvious danger doctrine applies, precluding plaintiff from
prevailing.
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Plaintiff’s final argument on appeal is that the trial court applied an incorrect test to
determine whether special aspects existed. A special aspects determination must be based on the
nature of the condition at issue, and not on the degree of care used by the invitee. Lugo, supra at
523-524. The trial court applied this test. During the hearing, the nature of the collapsed wet
floor sign and its potential dangers were thoroughly analyzed to ascertain whether special aspects
existed. Some of the factors considered by the trial court included, the location of the sign,
whether it was visible to a reasonably prudent person, whether others had tripped over the sign,
from what angle and distance the sign was visible, whether alternative routes existed which did
not require passing the sign, and other relevant factors. Although the trial court may not have
explicitly identified the test it was applying, the trial court considered the appropriate factors and
did not err in its analysis.
Affirmed.
/s/ Deborah A. Servitto
/s/ E. Thomas Fitzgerald
/s/ Michael J. Talbot
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