LUWANNA HARRINGTON V REGINA SIMPSON
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
LUWANNA HARRINGTON,
UNPUBLISHED
December 28, 2010
Plaintiff-Appellant,
v
No. 294365
Wayne Circuit Court
LC No. 08-123881-NS
REGINA SIMPSON,
Defendant-Appellee.
Before: M. J. KELLY, P.J., and K. F. KELLY and BORRELLO, JJ.
PER CURIAM.
In this premises liability action, plaintiff Luwanna Harrington appeals as of right the trial
court’s order granting summary disposition in favor of defendant Regina Simpson. The only
issue on appeal is whether the trial court erred when it determined that defendant’s snow-covered
driveway did not have “special aspects” sufficient to defeat Simpson’s open and obvious
defense. Because we conclude that there was a question of fact as to whether the driveway’s
condition had special aspects—specifically, whether the condition was “effectively
unavoidable”—we reverse. We have decided this case without oral argument under MCR
7.214(E).
I. BASIC FACTS AND PROCEDURAL HISTORY
This case arises out of an alleged slip-and-fall that occurred in Detroit on December 19,
2007. Harrington and Simpson were friends. Sometime before December 19, Simpson’s brother
died. According to Harrington, in anticipation of having family and friends over to her house
during the period before the funeral, Simpson offered Harrington money to come over and help
her clean her home. Harrington said she accepted the offer. Although it apparently snowed on
December 16 and 17, no snow had fallen on December 18 or 19. Despite this, when Harrington
pulled her car into Simpson’s driveway on December 19, it did not appear as though any
measures had been taken to remove the snow. Harrington testified that she walked through the
snow and entered the home. After approximately an hour, she returned to her car to fetch a
compact disc, slipped, fell on the snow, and allegedly sustained injuries.
-1-
Harrington sued Simpson for damages arising from the slip and fall. In June 2009,
Simpson moved for summary disposition under MCR 2.116(C)(10), arguing that any alleged
dangerous condition on her premises was open and obvious and without special aspects that
would impose a continuing duty of care. For purposes of the motion, Simpson did not contest
Harrington’s version of events and did not contest her status as an invitee.
In response, Harrington argued that, although open and obvious, Simpson’s slippery
driveway had special aspects that made the open and obvious doctrine inapplicable. Specifically,
she argued that, because she could not walk between her vehicle and Simpson’s front door
without traversing the slippery conditions, the dangerous condition was unavoidable.
At a hearing on the motion, the trial court determined that any dangerous condition on
Simpson’s driveway was open and obvious and without special aspects that made it
unreasonably dangerous. Accordingly, the trial court entered an order granting Simpson’s
motion.
This appeal followed.
II. SUMMARY DISPOSITION
A. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision to grant a motion for summary
disposition. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362,
369; 775 NW2d 618 (2009).
B. ANALYSIS
The duty that a landowner owes a visitor is dependent upon the visitor’s status on the
premises. A visitor can be a trespasser, licensee, or invitee. Stitt v Holland Abundant Life
Fellowship, 462 Mich 591, 596; 614 NW2d 88 (2000). For the purpose of her motion and this
appeal, Simpson assumes that Harrington was an invitee. An invitee enters the land of another
by invitation, “which carries with it an implied representation, assurance, or understanding that
reasonable care has been used to prepare the premises, and make [it] safe for [the invitee’s]
reception.” Id. at 596-597 (quotation marks and citation omitted).
Generally, a premises possessor owes a duty to exercise reasonable care to protect an
invitee from a dangerous condition on the land that poses an unreasonable risk of harm. Lugo v
Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). Under the open and obvious
danger doctrine, however, where the invitee knows of the danger or where it is so obvious that a
reasonable invitee should discover the condition, a premises owner owes no duty to protect the
invitee unless harm should be anticipated despite the invitee’s awareness of the condition.
Riddle v McLouth Steel Prods Corp, 440 Mich 85, 96; 485 NW2d 676 (1992). A danger is open
and obvious if “it is reasonable to expect an average user with ordinary intelligence to discover
[it] upon casual inspection.” Eason v Coggins Mem Christian Methodist Episcopal Church, 210
Mich App 261, 264; 532 NW2d 882 (1995). This Court has declared that, “by its very nature, a
snow-covered surface presents an open and obvious danger because of the high probability that it
may be slippery.” Ververis v Hartfield Lanes, 271 Mich App 61, 67; 718 NW2d 382 (2006).
-2-
Harrington concedes that the snow-covered driveway presented an open and obvious
condition. However, she maintains that special aspects existed that render the open and obvious
danger doctrine inapplicable. The doctrine provides that if special aspects of a condition make
even an open and obvious risk unreasonably dangerous, the landowner has a duty to undertake
reasonable precautions to protect invitees from that risk. Lugo, 464 Mich at 516-517. A special
aspect exists when the danger, although open and obvious, is effectively unavoidable or imposes
a uniquely high likelihood of harm or severity of harm. Id. at 518-519. In considering what
constitutes a special aspect, a court must evaluate the objective nature of the condition, not the
subjective degree of care used by the plaintiff or other idiosyncratic factors related to the
particular plaintiff. Bragen ex rel Bragen v Symanzik, 263 Mich App 324, 332; 687 NW2d 881
(2004).
Here, defendant conflates the two types of special aspects described in Lugo by
essentially arguing that an unavoidable condition must also impose a uniquely high likelihood of
harm or severity of harm. However, “‘[s]pecial aspects’ exist if the condition ‘is effectively
unavoidable’ or constitutes ‘an unreasonably high risk of severe harm.’” Robertson v Blue
Water Oil Co, 268 Mich App 588, 593; 708 NW2d 749 (2005) (emphasis added), quoting Lugo,
464 Mich at 518.
In Robertson, the plaintiff suffered an injury after a slip and fall at the defendant’s gas
station. A severe ice storm made the parking lot extremely icy and the plaintiff slipped and fell
as he walked from the pump to the station’s convenience store, where he wished to purchase
windshield wiper fluid and coffee. Robertson, 268 Mich App at 591-592. The defendant argued
that the condition was avoidable because plaintiff could have gone to a different service station
to make his purchases of fuel, coffee, and windshield washer fluid, but this Court rejected that
argument:
Even if there were [available alternatives], the scope of the inquiry is limited
to“the objective nature of the condition of the premises at issue.” Therefore, the
only inquiry is whether the condition was effectively unavoidable on the
premises. Here, there was clearly no alternative, ice-free path from the gasoline
pumps to the service station, a fact of which defendant had been made aware
several hours previously. The ice was effectively unavoidable. [Id. at 593-594
(citations omitted).]
The Robertson Court also found it noteworthy that the defendant owed a heightened duty
of care to the plaintiff as an invitee:
Finally, and more significantly, plaintiff was a paying customer who was
on defendant’s premises for defendant’s commercial purposes, and thus he was an
invitee of defendant. As our Supreme Court noted, “invitee status necessarily
turns on the existence of an ‘invitation.’” Defendant’s contention that plaintiff
should have gone elsewhere is simply inconsistent with defendant’s purpose in
operating its gas station. The logical consequence of defendant’s argument would
be the irrational conclusion that a business owner who invites customers onto its
premises would never have any liability to those customers for hazardous
-3-
conditions as long as the customers even technically had the option of declining
the invitation. . . .
Even if the record showed that plaintiff was aware of a realistic, safe
alternative location to purchase his fuel, coffee and windshield washer fluid,
where defendant has invited the public, and by extension plaintiff, onto its
premises for commercial purposes, we decline to absolve defendant of its duty of
care on that basis. To do so would be disingenuous. . . . [Id. at 594-595 (citations
omitted).]
This Court came to a similar conclusion in Hoffner v Lanctoe, ____Mich App____; ___
NW2d___ (2010). There, the plaintiff slipped and fell on ice on the sidewalk in front of the only
entrance to an exercise facility. In upholding the trial court’s denial of summary disposition, this
Court adopted the reasoning stated in Robertson:
Because there was only one customer entrance to the facility that was
fronted by the icy sidewalk, “the objective nature of the condition of the premises
at issue” reveals that the icy sidewalk was effectively unavoidable as it related to
the use of the premises. There was no alternate route Hoffner could take in order
to enter the exercise facility. Additionally, Hoffner was an invitee by virtue of her
contract … and the Robertson Court found that it would be disingenuous to
relieve defendants of their duty of care based on similar circumstances. [Id. at
___ (citations omitted).]
Here, Simpson does not contest that Harrington was an invitee or that snow covered the
entire driveway rendering it impossible to enter the house without traversing the slippery
condition. Given these facts, Harrington has demonstrated that the condition was effectively
unavoidable and, for that reason, the open and obvious doctrine did not relieve Simpson of her
duty to take reasonable steps to protect Harrington from the slippery condition. Consequently,
the trial court erred in granting summary disposition in favor of Simpson on the ground that the
slippery condition was an open and obvious hazard. Accordingly, we reverse the trial court’s
order dismissing Harrington’s suit and remand for further proceedings.
Reversed and remanded for further proceedings consistent with this opinion. As the
prevailing party, Harrington may tax costs. MCR 7.219(A). We do not retain jurisdiction.
/s/ Michael J. Kelly
/s/ Stephen L. Borrello
-4-
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.