ANTON PERKOVIQ V DELCOR HOMES-LAKE SHORE POINTE LT
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Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice
Justices
Maura D. Cor rigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED APRIL 24, 2002
ANTON PERKOVIQ,
Plaintiff-Appellee,
v
No. 116059
DELCOR HOMES—LAKE SHORE
POINTE, LTD.,
Defendant-Appellant.
________________________________
PER CURIAM
The plaintiff was injured when he fell from the roof of
a partially constructed house as he was preparing to paint in
the course of his employment.
defendant,
the
owner
and
subdivision development.
He brought this action against
the
general
contractor
of
the
The circuit court granted summary
disposition for the defendant.
The Court of Appeals reversed
in part, finding that genuine issues of material fact existed
regarding plaintiff’s claim that defendant, as owner of the
property, was liable on a premises liability theory.
We conclude that the evidence before the circuit court on
the motion for summary disposition did not provide a basis for
establishing premises liability. We thus reverse the judgment
of the Court of Appeals and reinstate the circuit court’s
judgment for the defendant.
I
Defendant Delcor Homes—Lake Shore Pointe, Ltd., was both
owner and general contractor of a residential subdivision
development near Howell in Livingston County.
The plaintiff
was employed by a subcontractor on the project, Kalaj Painting
and Decorating.
Delcor had hired Kalaj to perform painting
services at the project, which involved construction of more
than two hundred homes.
On November 22, 1995, the plaintiff
was working on the roof of a home under construction when he
slipped on ice or frost that had formed on the roof, falling
approximately twenty feet to the ground and suffering serious
injuries.
The plaintiff and a coworker had been instructed to paint
the upper level exterior of three homes.
them.
They went to one of
The rough roof of the house consisted only of plywood
sheeting. Shingles were not yet in place. In his deposition,
the plaintiff testified that several 2 x 4 slats of wood were
nailed at the lower edge of the roof to provide footing.
This
was insufficient to allow plaintiff to climb all the way up
the roof to paint the exterior walls.
He was attempting to
nail additional slats onto the roof when he slipped on the ice
or frost on the plywood and fell.
2
Plaintiff filed this action, alleging that the defendant
was liable on the basis of its role as a general contractor on
the project and its status as owner of the property.
After
discovery, the defendant moved for summary disposition under
MCR 2.116(C)(10), contending that no genuine issue of material
fact existed and that it was entitled to judgment as a matter
of law.
The circuit court granted the motion and entered
judgment for the defendant.
The plaintiff appealed.
II
The Court of Appeals first dealt with the question of
defendant’s liability on the basis of its status as the
general contractor on the project.
The plaintiff’s complaint
included allegations about the defendant’s failure to provide
a safe workplace and appropriate safety equipment, as well as
other claims about its operation of the construction site.
The Court of Appeals analyzed the principles applicable to
such claims and concluded that the plaintiff had failed to
establish a genuine issue of material fact regarding those
theories. The plaintiff has not challenged that aspect of the
Court of Appeals decision in this Court.
The Court of Appeals then turned to plaintiff’s theory
that defendant was liable on the basis of its status as owner
or occupier of the premises.
It was not disputed that
plaintiff, as an employee of a subcontractor on the project,
was an invitee. The Court stated that an invitor’s legal duty
is to exercise reasonable care to protect invitees from
3
unreasonable risk of harm caused by a dangerous condition of
the land that the landowner knows or should know that invitees
will not discover, realize, or protect themselves against.
Bertrand v Alan Ford, Inc, 449 Mich 606, 617-618; 537 NW2d 185
(1995). If the dangerous conditions are hidden or latent, the
owner has a duty to warn the invitee of the dangers.
Knight
v Gulf & Western Properties, Inc, 196 Mich App 119, 124-125;
492 NW2d 761 (1992).
The Court of Appeals stated that even
where conditions are known or obvious to the invitee, the
owner may still be required to use reasonable care to protect
the
invitee
from
the
danger
if
the
risk
of
harm
is
unreasonable.
The Court of Appeals concluded that genuine issues of
material fact existed regarding premises liability:
Here, it is undisputed that defendant is both
owner and developer/general contractor of the
subdivision under construction, and as possessor of
the land, defendant has the legal duty to protect
its invitees. The danger of slipping off a roof
appears to be open and obvious, especially where
there is frost on the roof and plaintiff himself
and his co-worker testified that they told
defendant that the roof was icy; thus, the failure
to warn theory fails to establish liability.
Further, the evidence does not establish a
defective physical structure; instead, it appears
that there was frost or ice on the roof because of
the weather conditions. Such conditions may make
the situation unreasonably dangerous, but the
question arises as to whether defendant should
expect that plaintiff, who paints for a living,
will fail to protect himself against the danger.
The evidence presented, including the contract and
deposition testimony, is conflicting as to who was
responsible for providing safety equipment and
ensuring its use; either the general contractor,
the subcontractor or both. A question exists as to
4
whether defendant should have anticipated that the
ice/frost on the roof would cause physical harm to
a painter notwithstanding its known and obvious
danger. Based on the evidence presented and giving
the benefit of reasonable doubt to the nonmoving
party, a genuine issue of material fact exists as
to whether defendant could be liable under the
theory of premises liability; thus, we reverse the
trial court’s grant of summary disposition in favor
of defendant with regard to this theory of
liability. [Unpublished opinion per curiam, issued
October 1, 1999.][1]
III
The defendant has filed an application for leave to
appeal to this Court. We held the application in abeyance for
Lugo v Ameritech Corp, Inc (Docket No. 112575), which has now
been decided.
464 Mich 512; 629 NW2d 384 (2001).
The appeal involves a trial court’s ruling on a motion
for summary disposition, which we review de novo.
Maiden v
Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
IV
This case presents a classic example of an open and
obvious danger in the premises liability setting.
There was
nothing hidden about the frost or ice on the roof, and anyone
encountering it would become aware of the slippery conditions.
In Bertrand, supra, we considered the effect of an open
and obvious danger on the duty of the owner or possessor of
1
The Court of Appeals also rejected plaintiff’s claim
that the circuit court should have permitted amendment of the
pleadings to include a negligent selection/retention of
subcontractor claim.
The plaintiff has not cross-appealed
that issue.
5
land. Referring to 2 Restatement Torts, 2d, §§ 3432 and 343A,3
we explained:
The invitor’s legal duty is “to exercise
reasonable care to protect invitees from an
unreasonable risk of harm caused by a dangerous
condition of the land” that the landowner knows or
should know the invitees will not discover,
realize, or protect themselves against. [Quoting
Williams v Cunningham Drug Stores, Inc, 429 Mich
495, 499; 418 NW2d 381 (1988).]
* * *
Where a condition is open and obvious, the
scope of the possessor’s duty may be limited.
While there may be no obligation to warn of a fully
obvious condition, the possessor still may have a
duty to protect an invitee against foreseeably
dangerous conditions. Thus, the open and obvious
doctrine does not relieve the invitor of his
general duty of reasonable care.
When §§ 343 and 343A are read together, the
2
A possessor of land is subject to liability
for physical harm caused to his invitees by a
condition on the land if, but only if, he
(a)
knows or by the exercise of reasonable
care would discover the condition, and should
realize that it involves an unreasonable risk of
harm to such invitees, and
(b) should expect that they will not discover
or realize the danger, or will fail to protect
themselves against it, and
(c)
fails to exercise reasonable care to
protect them against the danger.
3
A possessor of land is not liable to his
invitees for physical harm caused to them by any
activity or condition on the land whose danger is
known or obvious to them, unless the possessor
should anticipate the harm despite such knowledge
or obviousness.
6
rule generated is that if the particular activity
or condition creates a risk of harm only because
the invitee does not discover the condition or
realize its danger, then the open and obvious
doctrine will cut off liability if the invitee
should have discovered the condition and realized
its danger. On the other hand, if the risk of harm
remains unreasonable, despite its obviousness or
despite knowledge of it by the invitee, then the
circumstances may be such that the invitor is
required to undertake reasonable precautions. [449
Mich 609, 610-611 (emphasis in original).]
Bertrand involved a step in an automobile dealership. We
held that the step was an open and obvious condition and that
liability could be imposed only if something unusual made the
condition unreasonably dangerous:
[B]ecause the danger of tripping and falling
on a step is generally open and obvious, the
failure to warn theory cannot establish liability.
However, there may be special aspects of these
particular steps that make the risk of harm
unreasonable, and, accordingly, a failure to remedy
the dangerous condition may be found to have
breached the duty to keep the premises reasonably
safe. [449 Mich 614.]
In summary, because steps are the type of
everyday occurrence that people encounter, under
most circumstances, a reasonably prudent person
will look where he is going, will observe the
steps, and will take appropriate care for his own
safety.
Under
ordinary
circumstances,
the
overriding public policy of encouraging people to
take reasonable care for their own safety precludes
imposing a duty on the possessor of land to make
ordinary steps “foolproof.” Therefore, the risk of
harm is not unreasonable. However, where there is
something unusual about the steps, because of their
“character, location, or surrounding conditions,”
then the duty of the possessor of land to exercise
reasonable care remains. [449 Mich 616-617.]
We
reiterated
those
principles
decision at 516-517:
7
in
our
recent
Lugo
“[I]f the particular activity or condition
creates a risk of harm only because the invitee
does not discover the condition or realize its
danger, then the open and obvious doctrine will cut
off liability if the invitee should have discovered
the condition and realized its danger. On the other
hand, if the risk of harm remains unreasonable,
despite its obviousness or despite knowledge of it
by the invitee, then the circumstances may be such
that
the
invitor
is
required
to
undertake
reasonable precautions.“
In sum, the general rule is that a premises
possessor is not required to protect an invitee
from open and obvious dangers, but, if special
aspects of a condition make even an open and
obvious risk unreasonably dangerous, the premises
possessor has a duty to undertake reasonable
precautions to protect invitees from that risk.
[Emphasis in original.]
Applying those principles to the facts of this case,
there is no question that the condition of the roof was open
and obvious.
Thus, the question is whether, despite its
obviousness and plaintiff’s knowledge of it, a factfinder
could determine that defendant breached a duty of reasonable
care in the circumstances. We conclude that it could not, and
that summary disposition was properly granted.
In its status
as owner, defendant had no reason to foresee that the only
persons who would be on the premises, various contractors and
their employees, would not take appropriate precautions in
dealing
with
the
construction site.
open
and
obvious
conditions
of
the
There were no special aspects of this
condition that made the open and obvious risk unreasonably
dangerous.
8
The Court of Appeals seems to have confused general
contractor liability with the liability of a possessor of
premises.
In explaining its conclusion that defendant could
be liable on a premises liability theory, the Court used
analysis that was irrelevant to that theory and would be
applicable only to a claim against a general contractor.
It
stated:
The evidence presented, including the contract
and deposition testimony, is conflicting as to who
was responsible for providing safety equipment and
ensuring its use; either the general contractor,
the subcontractor or both.
The fact that defendant may have additional duties in its
role as general contractor, however, does not alter the nature
of
the
duties
premises.4
owed
by
virtue
of
its
ownership
of
the
As owner, it had no reason to foresee that the
condition of the premises would be unreasonably dangerous, as
the roof lacked any special aspects that would make it so.
It
could not expect that employees of subcontractors working on
the house would fail to take necessary precautions to guard
against the obvious danger of the slippery condition of the
roof.
4
As noted above, plaintiff’s other claim was that
defendant, as general contractor, did not take appropriate
measures to insure the safety of the job site. However, the
lower courts have held that this case does not come within the
exceptions to the general principle that general contractors
are not liable for injuries to subcontractors’ employees.
Plaintiff has not appealed that determination, and it is not
before us.
9
In short, plaintiff has presented no evidence that the
condition of the roof was unreasonably dangerous for purposes
of premises liability.
frost
on
a
unreasonably
sloped
The mere presence of ice, snow, or
rooftop
dangerous
generally
does
condition.
not
Plaintiff
create
an
has
not
articulated any action that could reasonably be expected of
possessors of land in Michigan to protect against the obvious
dangers that arise when snow, ice, or frost accumulate on
sloped rooftops. To avoid summary disposition on this type of
claim, a plaintiff must present evidence of “special aspects”
of the condition that differentiate it from the typical sloped
rooftop containing ice, snow, or frost.
Lugo, supra.
Accordingly, we reverse the judgment of the Court of
Appeals in part, and reinstate the circuit court’s grant of
summary disposition in favor of the defendant.
CORRIGAN ,
C.J.,
and
TAYLOR ,
concurred.
10
YOUNG ,
and
MARKMAN ,
JJ.,
S T A T E
O F
M I C H I G A N
SUPREME COURT
ANTON PERKOVIQ,
Plaintiff-Appellee,
v
No.
116059
DELCOR HOMES-LAKE SHORE
POINTE, LTD.,
Defendant-Appellant.
____________________________________
W EAVER, J. (concurring).
I
concur
Plaintiff
in
presented
the
no
result
of
evidence
the
that
majority
the
icy
opinion.
roof
unreasonably dangerous despite its obviousness.
CAVANAGH and KELLY , JJ., concurred with WEAVER , J.
was
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