ALBERT PETER SCHUMP V HOME DEPOT USA INC
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
ALBERT PETER SCHUMP,
UNPUBLISHED
October 23, 2008
Plaintiff-Appellant,
v
No. 279256
Oakland Circuit Court
LC No. 2006-073663-NO
THE HOME DEPOT, USA, INC.,
Defendant-Appellee.
Before: Servitto, P.J., and Donofrio and Fort Hood, JJ.
MEMORANDUM.
Plaintiff appeals as of right an order granting summary disposition to defendant in this
premises liability action. We affirm. This case has been decided without oral argument pursuant
to MCR 7.214(E).
Plaintiff tripped over a two-by-four board protruding from beneath a hot tub on the
concrete entryway to the Home Depot store located in the city of Southfield, falling and
sustaining injuries to his back. On appeal, plaintiff alleges that the trial court erred in applying
the open and obvious doctrine when various factors caused the condition to be “invisible” and
the credibility of plaintiff’s testimony presented a factual issue. We disagree.
“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.” Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). The duty
generally does not include removing open and obvious dangers unless the premises owner should
anticipate that special aspects of the condition make even an open and obvious risk unreasonably
dangerous. Id. at 517. Whether a hazardous condition is open and obvious depends on whether
it is reasonable to expect that an average person with ordinary intelligence would have
discovered the danger and risk presented upon casual inspection. Novotney v Burger King Corp
(On Remand), 198 Mich App 470, 474-475; 499 NW2d 379 (1993). The determination depends
on the characteristics of a reasonably prudent person, and not on the characteristics of a specific
plaintiff. See Mann v Shusteric Enterprises, Inc, 470 Mich 320, 329 n 10; 683 NW2d 573
(2004). An ever-changing and uncorroborated account is nothing more than speculation and
conjecture and does not demonstrate that a defendant knew or had reason to know of the
existence of a dangerous condition. D’Ambrosio v McCready, 225 Mich App 90, 96; 570 NW2d
797 (1997). In Michigan, it is the overriding public policy to encourage people to take
-1-
reasonable care for their own safety and watch where they are walking. Bertrand v Alan Ford,
Inc, 449 Mich 606, 616-617; 537 NW2d 185 (1995).
In the present case, plaintiff alleges that inadequate lighting, shadowing of the hot tub,
night darkness and harsh weather, lack of color differentiation, and a slight protrusion precluded
the condition from being characterized as open and obvious. The determination of an open and
obvious condition is not premised on individual factors, but rather based on whether a person of
ordinary intelligence would have discovered the danger upon casual inspection. Review of the
record reveals that an ordinary person upon casual inspection would have discovered the danger.
Plaintiff failed to demonstrate that the asserted conditions would have precluded a person of
ordinary intelligence from discovering the condition. Accordingly, the trial court did not err in
granting summary disposition.
Affirmed.
/s/ Deborah A. Servitto
/s/ Pat M. Donofrio
/s/ Karen M. Fort Hood
-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.
