MARCIA MILLER V DUNHAM'S DISCOUNT SPORTS
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STATE OF MICHIGAN
COURT OF APPEALS
MARCIA MILLER,
UNPUBLISHED
December 16, 2010
Plaintiff-Appellant,
v
No. 294445
Jackson Circuit Court
LC No. 08-003696-NO
DUNHAM’S DISCOUNT SPORTS,
Defendant-Appellee.
Before: JANSEN, P.J., and SAWYER and O’CONNELL, JJ.
PER CURIAM.
Plaintiff Marcia Miller broke her foot when she fell while attempting to get off an
elliptical machine at defendant Dunham’s Discount Sports in Jackson. The trial court granted
summary disposition for defendant, and plaintiff appeals as of right. This appeal has been
decided without oral argument pursuant to MCR 7.214(E). We affirm.
We review a trial court’s summary disposition ruling de novo. Maiden v Rozwood, 461
Mich 109, 118; 597 NW2d 817 (1999). When reviewing a motion granted under MCR
2.116(C)(10), this Court considers the pleadings, affidavits, depositions, admissions, and any
other documentary evidence submitted by the parties in a light most favorable to the nonmoving
party. The Cadle Co v City of Kentwood, 285 Mich App 240, 247; 776 NW2d 145 (2009). A
motion for summary disposition under MCR 2.116(C)(10) may be granted where there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a matter of
law. Campbell v Human Services Dep’t, 286 Mich App 230, 235; 780 NW2d 586 (2009). This
Court is liberal in finding genuine issues of material fact. Jimkoski v Shupe, 282 Mich App 1, 5;
763 NW2d 1 (2008).
A business has a duty to use reasonable care to protect an invitee from an unreasonable
risk of harm caused by a dangerous condition on the property. See Lugo v Ameritech Corp, Inc,
464 Mich 512, 516; 629 NW2d 384 (2001). This duty generally does not include protecting an
invitee from open and obvious conditions. Id. at 517. A condition is open and obvious when an
average person of ordinary intelligence could discover the danger and the risk presented with a
casual inspection. Bialick v Megan Mary, Inc, 286 Mich App 359, 363; 780 NW2d 599 (2009).
Nonetheless, a business has a duty to take reasonable precautions to protect an invitee from an
open and obvious condition with special aspects that make the condition unreasonably
dangerous. Lugo, 464 Mich at 517. However, “only those special aspects that give rise to a
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uniquely high likelihood of harm or severity of harm if the risk is not avoided will serve to
remove that condition from the open and obvious danger doctrine.” Lugo, 464 Mich at 519.
In this case, plaintiff was injured as she got off an elliptical machine at defendant’s
sporting goods store. There is evidence that the elliptical machine was in a row of machines with
only a narrow space between each machine—about three or four inches apart. We agree with the
trial court that the close proximity of the machines was an open and obvious danger. Nothing
prevented plaintiff from seeing the machines side-by-side in close proximity. Indeed, plaintiff
indicated that she noticed their close proximity before getting on the elliptical. The machines’
close proximity significantly reduced the available amount of level flooring to get on or off the
machine. An average person of ordinary intelligence would be aware of the risk of tripping or
falling when attempting to get on and off an exercise machine that has been placed three inches
away from another machine.
An exception to the open and obvious rule is whether there are special aspects present
that make a situation unavoidable and unreasonably dangerous. Id. at 518. The Supreme Court
has provided two examples of situations where the special aspects of open and obvious
conditions render a condition unreasonably dangerous. See id. at 518-519. One example is a
commercial building with only one exit where the floor next to the exit is covered with standing
water—an unavoidable condition presenting a high likelihood of harm. Id. The other example
provided in Lugo is a thirty-foot pit in a parking lot—the danger open and obvious, but presents
an unreasonably dangerous situation. Id. Additionally, this Court has held that ice completely
covering a gas station’s parking lot was an effectively unavoidable condition that fit the special
aspects exception to the open and obvious rule. Robertson v Blue Water Oil Co, 268 Mich App
588, 593-594; 708 NW2d 749 (2005).
The standard is whether the reasonable person would have gotten on the elliptical, seeing
the danger, and whether a reasonable person would have looked before getting off the elliptical.
See Bialick, 286 Mich App at 363. An elliptical machine has moving parts that require a person
to use care when attempting to get on and off the machine. The elliptical in this case required
defendant’s patrons to use an even higher degree of care because of its close proximity to other
machines. But, the facts show that plaintiff knew that the exercise machines were placed very
close together, and she decided to test the elliptical without asking for assistance. The facts also
show that, even though plaintiff knew that the machines were placed close together, she did not
look to see if she would have a safe place to put her foot before dismounting the elliptical.
Plaintiff did not take the precautions that a reasonable person would have taken if confronted
with a similar situation.
Here, there was no special aspect that made the elliptical machine unreasonably
dangerous, or made the danger of falling unavoidable. The facts in this case are distinguishable
from the facts in Robertson that give us an example of a special aspect. In that case, the plaintiff
went to a gas station to buy windshield washer fluid. The gas station’s lot was completely
covered in ice, and the plaintiff fell while walking across it to enter the gas station. This Court
held that the special aspects exception applied because the snowy conditions of that day would
have made it sufficiently unsafe to drive away without windshield washer fluid. Robertson, 268
Mich App at 594. The danger in Robertson was in entering the store, not testing the product that
the store was selling. Similarly, the danger in the example in Lugo forced the person to confront
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the open and obvious danger of the standing water that blocked the only entrance to the building.
Lugo, 464 Mich at 519. Here, there was no pressing reason for plaintiff to confront the open and
obvious dangers of the placement of the elliptical.
The danger was open and obvious, and the special aspects exception does not apply. We
affirm the trial court’s decision to grant summary disposition to defendant.
Affirmed. Defendant may tax costs.
/s/ Kathleen Jansen
/s/ David H. Sawyer
/s/ Peter D. O’Connell
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