# Raymond Weitzman v. Wyndham Pointe Subdivision Hoa

> Michigan Court of Appeals · August 22, 2024

URL: https://www.frixlaw.com/law-library/cases/10525646

## Case

- **Court:** Michigan Court of Appeals
- **Decided:** August 22, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

RAYMOND WEITZMAN, UNPUBLISHED
August 22, 2024
Plaintiff-Appellant,

v No. 364491
Oakland Circuit Court
WYNDHAM POINTE SUBDIVISION LC No. 2021-190477-NO
HOMEOWNERS ASSOCIATION and CHARTER
TOWNSHIP OF WEST BLOOMFIELD,

Defendants-Appellees.

Before: BOONSTRA, P.J., and CAVANAGH and PATEL, JJ.

PER CURIAM.

This premises-liability action arises out of injuries plaintiff sustained when he tripped on
what he contends was at least a two-inch vertical discontinuity between two slabs in a sidewalk in
the Wyndham Pointe Subdivision in West Bloomfield Charter Township. The trial court granted
summary disposition in favor of defendants, concluding that neither defendant owe a duty because
there was no genuine issue of material fact that the vertical discontinuity was open and obvious
and there were no special aspects. We affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.

I. BACKGROUND

On the morning of April 14, 2021, plaintiff was walking on a sidewalk through the
Wyndham Pointe subdivision. Plaintiff testified that he walked daily, but only occasionally
walked in the Wyndham Pointe subdivision. Plaintiff explained, “I was walking and all of a sudden
stumbled and fell to the ground.” After he fell, plaintiff observed a height discrepancy between
two slabs of the sidewalk that he maintains is more than 2 inches. Although plaintiff was looking
ahead as he walked and there were daylight conditions, he did not see the height differential before
he fell. And on the several prior occasions that he had traversed that area of sidewalk, he did not
notice the vertical discontinuity or encounter any issues. Plaintiff testified that he “tripped over
that discrepancy in height[]”as he walked from the higher slab to the lower slab. Plaintiff denied
that there was any debris on the sidewalk when he fell.

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Plaintiff commenced this action against the Wyndham Pointe Homeowners Association
(Wyndham Pointe) and the township. Plaintiff alleged a negligence claim against both defendants,
a premises-liability claim against Wyndham Pointe, and a claim against the township under the
sidewalk exception to governmental immunity, MCL 691.1402a. Following discovery, the
township moved for summary disposition under MCR 2.116(C)(7) and (10) arguing that there was
no genuine issue of material fact that it did not have possession or control of the sidewalk, did not
know or have reason to know of the vertical discontinuity, and the vertical discontinuity was open
and obvious. Wyndham Pointe moved for summary disposition under MCR 2.116(C)(8) and (10)
arguing that plaintiff could not prove causation and Wyndham Pointe did not owe plaintiff a duty
regarding the vertical discontinuity in the sidewalk because the hazard was not hidden. The trial
court granted both motions for summary disposition concluding that there was a genuine issue of
material fact as to causation, but “there is no genuine issue of material fact that the alleged danger
posed by the uneven sidewalk was open and obvious[,]” did not have special aspects, was not
unreasonably dangerous, and was not effectively avoidable.1 This appeal followed.

II. STANDARD OF REVIEW

This Court reviews de novo a trial court’s decision on a motion for summary disposition.
El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). Summary
disposition is properly granted under MCR 2.116(C)(7) when a party is entitled to governmental
immunity as a matter of law. Moraccini v Sterling Hts, 296 Mich App 387, 391; 822 NW2d 799
(2012). A motion brought under MCR 2.116(C)(8) tests the legal sufficiency of a plaintiff’s claim
on the basis of the pleadings alone. El-Khalil, 504 Mich at 159-160. A motion brought under
MCR 2.116(C)(10) tests the factual sufficiency of a claim. Id. at 160.

The trial court did not state under which subrule it decided defendants’ motions.
Regardless of how a trial court frames its decision, this Court reviews a grant of summary
disposition under the correct subrule. Computer Network, Inc v AM Gen Corp, 265 Mich App
309, 313; 696 NW2d 49 (2005). The trial court did not grant summary disposition on the basis of
governmental immunity, and it considered evidence when it granted summary disposition. “Where
a motion for summary disposition is brought under both MCR 2.116(C)(8) and (C)(10), but the
parties and the trial court relied on matters outside the pleadings, as is the case here, MCR
2.116(C)(10) is the appropriate basis for review.” Silberstein v Pro-Golf of America, Inc, 278
Mich App 446, 457; 750 NW2d 615 (2008).

Summary disposition under MCR 2.116(C)(10) is warranted when “[e]xcept as to the
amount of damages, there is no genuine issue as to any material fact, and the moving party is
entitled to judgment or partial judgment as a matter of law.” MCR 2.116(C)(10). When reviewing
a motion for summary disposition under MCR 2.116(C)(10), we must consider the evidence

1
The trial court also granted summary disposition in favor of Wyndham Pointe on plaintiff’s
negligence claim because the court found that plaintiff’s claim arose out of a condition on the land
and thus was a claim for premises liability. Plaintiff does not challenge this aspect of the court’s
holding on appeal.

-2-
submitted by the parties in the light most favorable to the nonmoving party. El-Khalil, 504 Mich
at 160. If there is a genuine issue of material fact, dismissal is inappropriate. Id.

III. ADOPTION OF THE THIRD RESTATEMENT OF TORTS § 51

Plaintiff argues that this Court should adopt 2 Restatement of Torts, 3d, § 51, p 242, in its
entirety to eliminate the traditional three categories of entrants upon the land of another. This
Court is not authorized to grant plaintiff relief on this issue.

An action for premises liability is a specific type of negligence claim that arises when the
plaintiff, while on land possessed by the defendant, was injured by a hazardous condition on the
land. Pugno v Blue Harvest Farms LLC, 326 Mich App 1, 13; 930 NW2d 393 (2018). In Hoffner
v Lanctoe, 492 Mich 450, 459; 821 NW2d 88 (2012), the Supreme Court explained:

The law of premises liability in Michigan has its foundation in two general
precepts. First, landowners must act in a reasonable manner to guard against harms
that threaten the safety and security of those who enter their land. Second, and as
a corollary, landowners are not insurers; that is, they are not charged with
guaranteeing the safety of every person who comes onto their land. These
principles have been used to establish well-recognized rules governing the rights
and responsibilities of both landowners and those who enter their land. Underlying
all these principles and rules is the requirement that both the possessors of land and
those who come onto it exercise common sense and prudent judgment when
confronting hazards on the land.

“In a premises-liability action, a plaintiff must prove the elements of negligence which are: (1) that
the defendant owed the plaintiff a duty, (2) that the defendant breached that duty, (3) causation,
and (4) damages.” Gabrielson v Woods Condo Ass’n, Inc, ___ Mich App ___, ___; ___ NW3d
___ (2024) (Docket No. 364809); slip op at 8. “The starting point for any discussion of the rules
governing premises liability law is establishing what duty a premises possessor owes to those who
come onto his land.” Hoffner, 492 Mich at 460. “It is well settled in Michigan that the question
whether the defendant owes an actionable legal duty to the plaintiff is one of law which the court
decides.” Kandil-Elsayed v F & E Oil, Inc, 512 Mich 95, 112; 1 NW3d 44 (2023).2

“Historically, Michigan has recognized three common-law categories for persons who
enter upon the land or premises of another: (1) trespasser, (2) licensee, or (3) invitee.” Stitt v
Holland Abundant Life Fellowship, 462 Mich 591, 596; 614 NW2d 88 (2000). “Each of these
categories corresponds to a different standard of care that is owed to those injured on the owner’s
premises. Thus, a landowner’s duty to a visitor depends on that visitor’s status.” Id. In this case,
the parties do not dispute that plaintiff had licensee status. This Court has explained that a licensee
“is a person who is privileged to enter the land of another by virtue of the possessor’s consent.”
Gabrielson, ___ Mich App at ___; slip op at 9. “A landowner owes a licensee a duty only to warn

2
One of the issues that plaintiff raises on appeal is that this case should be held in abeyance pending
the Supreme Court’s decision in Kandil-Elsayed, 512 Mich at 95. We need not address plaintiff’s
argument because that case has already been decided.

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the licensee of any hidden dangers the owner knows or has reason to know of, if the licensee does
not know or have reason to know of the dangers involved.” Id.

Plaintiff asks this Court to abandon Michigan’s historical, category-based approach to
defining a landowner or possessor’s duty to a particular entrant and to adopt the approach defined
in 2 Restatement of Torts, 3d, § 51, p 242, which would eliminate the different categories of
entrants and place upon every landowner or possessor a general duty of reasonable care to all who
enter the land. 2 Restatement, 3d, § 51, p 242, states:

Subject to § 52, a land possessor owes a duty of reasonable care to entrants
on the land with regard to:

(a) conduct by the land possessor that creates risks to entrants on the land;

(b) artificial conditions on the land that pose risks to entrants on the land;

(c) natural conditions on the land that pose risks to entrants on the land; and

(d) other risks to entrants on the land when any of the affirmative duties
provided in Chapter 7 is applicable.

Under this section, a landowner would owe a duty of reasonable care to every entrant upon his or
her land except a “flagrant trespasser.”3

In Kandil-Elsayed, 512 Mich at 143-144, the Supreme Court explicitly held that the three
traditional categories of entrants on the land of another remain in effect and that the Court was
“reserving the question of whether to adopt the Third Restatement’s blanket reasonable-care
standard for a later time.” This Court is bound to follow our Supreme Court’s historical, category-
based approach to defining the duty owed by a landowner or possessor in premises-liability claims.
See Associated Builders & Contractors v Lansing, 499 Mich 177, 191-192; 880 NW2d 765 (2016)
(explaining that “[t]he Court of Appeals is bound to follow decisions by this Court except where
those decisions have clearly been overruled or superseded and is not authorized to anticipatorily

3
Under 2 Restatement 3d, § 52:
(a) The only duty a land possessor owes to flagrant trespassers is the duty
not to act in an intentional, willful, or wanton manner to cause physical harm.

(b) Notwithstanding Subsection (a), a land possessor has a duty to flagrant
trespassers to exercise reasonable care if the trespasser reasonably appears to be
imperiled and

(1) helpless; or

(2) unable to protect him- or herself.

-4-
ignore our decisions where it determines that the foundations of a Supreme Court decision have
been undermined.”). Accordingly, this Court is not authorized to grant plaintiff relief on this issue.

IV. WYNDHAM POINTE

Plaintiff next argues that the trial court erred by concluding that there was no genuine issue
of material fact that the height differential between the two sidewalk slabs was open and obvious
and thus Wyndham Pointe did not owe plaintiff a duty and was entitled to summary disposition as
a matter of law. We agree.

The trial court granted summary disposition in favor of Wyndham Pointe, concluding that
it did not owe plaintiff a duty regarding the vertical discontinuity between the sidewalk slabs
because the hazard was open and obvious with no special aspects. Under the open and obvious
doctrine, as it existed when the trial court decided defendants’ motions, a premises possessor did
not owe a duty to warn or protect from a hazardous condition on the land that was “open and
obvious.” Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001), overruled in
part by Kandil-Elsayed v F & E Oil, Inc, 512 Mich 95; 1 NW3d 44 (2023). After the trial court
granted summary disposition to Wyndham Pointe, our Supreme Court held that the open and
obvious nature of a condition is relevant to whether a defendant breached a duty and, if so, whether
a plaintiff was comparatively at fault, not whether a defendant owed a duty. Kandil-Elsayed, 512
Mich at 144.

In this case, it is undisputed that plaintiff was a licensee. “A landowner owes a licensee a
duty only to warn the licensee of any hidden dangers the owner knows or has reason to know of,
if the licensee does not know or have reason to know of the dangers involved.” Stitt, 462 Mich at
596. In Blackwell v Franchi, 502 Mich 918, 918-919; 914 NW2d 900 (2018), our Supreme Court
explained that a licensor is liable to a licensee when:

(a) the possessor knows or has reason to know of the condition and should realize
that it involves an unreasonable risk of harm to such licensees, and should expect
that they will not discover or realize the danger, and

(b) he fails to exercise reasonable care to make the condition safe, or to warn the
licensees of the condition and the risk involved, and

(c) the licensees do not know or have reason to know of the condition and the risk
involved.

In its motion for summary disposition, Wyndham Pointe asserted that it did not owe
plaintiff a duty because the vertical discontinuity between the two sidewalk slabs was not hidden
and was objectively open and obvious. The trial court concluded that “there is no genuine issue
of material fact that the alleged danger posed by the uneven sidewalk was open and obvious[,]”

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did not have special aspects, was not unreasonably dangerous, and was not effectively avoidable.4
In reaching its decision, the trial court applied the now-overruled framework set forth by Lugo and
its progeny to hold that Wyndham did not owe plaintiff a duty of care.

The initial question is whether the vertical discontinuity between the two sidewalk slabs
posed a hidden, unreasonable danger. The question regarding whether a condition was hidden and
unreasonably dangerous generally poses a question for the jury. Blackwell v Franchi (On
Remand), 327 Mich App 354, 357 n 1; 933 NW2d 762 (2019). A hazard can be hidden when it is
“nonvisible.” Id. at 357. In premises-liability cases, how an ordinary person would have
approached a particular hazard presents an objective inquiry. Kandil-Elsayed, 512 Mich at 144-
145. However, “the plaintiff’s own account of their response to the danger is a key piece of
evidence used by courts” to conduct an objective analysis because how an actual person confronted
the particular hazard is indicative of how the ordinary person would have confronted that hazard.
Id. at 145.

Plaintiff argues that the vertical discontinuity was nonvisible from the direction he
approached it. Plaintiff testified he was looking straight ahead in the moments preceding his fall.
He testified that he was normally cautious while on walks in Wyndham Pointe. Plaintiff also
testified that he was not distracted when he fell. Despite having walked on the street several times
before, plaintiff had never noticed the vertical discontinuity. Plaintiff did not notice the vertical
discontinuity until after his fall; at that point, plaintiff had fallen forwards and was looking back
at the vertical discontinuity, from ground level, from the low side to the high side.

Plaintiff’s safety expert, Steven Ziemba, averred in his affidavit that pedestrians normally
look straight ahead while walking on sidewalks, not down at their feet, making it unlikely the
pedestrian will discover a vertical discontinuity when approaching it from the high side and a
forward fall is likely to occur. Ziemba stated that the sidewalk was uniform in color and “the shade
from the adjacent tree and shrubbery hid the abrupt height change of the pavement in this area.”
According to Ziemba, when there was no visual warning provided to draw attention to a vertical
discontinuity such as the one at issue, a pedestrian is unlikely to discover the discontinuity. A
rational jury could conclude that the vertical discontinuity was nonvisible from the direction that
plaintiff approached the discrepancy. Viewing the facts in the light most favorable to plaintiff,
reasonable persons could disagree on whether the alleged condition, i.e., the nonvisible vertical
discontinuity, presented an unreasonable risk of harm, whether plaintiff knew or had reason to
know of the condition and the risk involved, and whether Wyndham Pointe should have expected
that plaintiff would not have discovered the hazard before falling victim to it. Accordingly, we
reverse the trial court’s grant of summary disposition in favor of Wyndham Pointe.5

4
The “special aspects” exception to the open and obvious doctrine does not apply to licensees.
Pippin v Atallah, 245 Mich App 136, 143; 626 NW2d 911 (2001). See also Blackwell, 502 Mich
918, 924 n 4; 914 NW2d 900 (2018) (MCCORMACK, J. concurring).
5
The dissenting opinion concludes, “The undisputed evidentiary record nevertheless establishes
that Wyndham Pointe did not know or have reason to know of the defect.” However, Wyndham

-6-
Wyndham Pointe argues that even if this Court concludes that the trial court erred by
concluding that defendants did not owe a duty to plaintiff, the trial court’s grant of summary
disposition in favor of Wyndham Pointe should be affirmed because the alleged cause of plaintiff’s
fall is based on speculation and conjecture.6 The trial court concluded that plaintiff’s deposition
testimony established a genuine issue of material fact as to causation. Plaintiff could not recall
which foot he stepped with, where his foot landed, or which portion of the slab he was walking on
when he fell. But plaintiff testified, “I tripped over that ledge, I know that.” When plaintiff was
questioned why he thought the height discrepancy caused his fall, plaintiff responded, “Because
that’s what I tripped over.” When asked what caused his fall, plaintiff stated, “All I know is I
tripped over that discrepancy in height.” And when plaintiff was asked to explain the mechanics
of how the height discrepancy caused his fall, he stated, “I don’t know exactly. I know I stumbled
at that spot. . . . I know I tripped over it, but I don’t’ know how.” When deciding a motion for
summary disposition, all reasonable inferences must be drawn in favor of the nonmoving party.
Dextrom v Wexford Co, 287 Mich App 406, 415; 789 NW2d 211 (2010). There is a reasonable
inference to be drawn in plaintiff’s favor that the vertical discontinuity caused his fall, making
summary disposition on the basis of causation improper.

IV. WEST BLOOMFIELD CHARTER TOWNSHIP

Plaintiff further argues that the trial court erred by concluding that there was no genuine
issue of material fact that the height differential between the two sidewalk slabs was open and
obvious and thus the township did not owe plaintiff no duty and was entitled to summary
disposition as a matter of law. We agree.

The GTLA grants a governmental agency immunity from tort liability if the agency was
engaged in the exercise or discharge of a governmental function, subject to certain enumerated
exceptions. MCL 691.1407(1); Bernardoni v City of Saginaw, 499 Mich 470, 473; 886 NW2d 109
(2016). One such exception is the “highway exception” under MCL 691.1402, which provides
that a plaintiff may recover damages “resulting from a municipality’s failure to keep highways—
including sidewalks—in reasonable repair and in a condition reasonably safe and fit for travel.”
Bernardoni, 499 Mich at 473 (cleaned up). A municipality has a duty to “maintain [a] sidewalk
in reasonable repair.” MCL 691.1402a(1). And it can be held liable for breaching that duty if the
plaintiff “proves that at least 30 days before the occurrence . . . the municipal corporation knew or,
in the exercise of reasonable diligence, should have known of the existence of the defect in the
sidewalk.” MCL 691.1402a(2). A municipality is “presumed to have maintained the sidewalk in
reasonable repair.” MCL 691.1402a(3). But that statutory presumption may be rebutted if the
plaintiff shows that a proximate cause of the injury was one or both of the following:

(a) A vertical discontinuity defect of 2 inches or more in the sidewalk.

Pointe did not raise this argument in its motion for summary disposition or as an alternative ground
for affirmance on appeal.
6
“[T]his Court will not reverse a trial court’s decision if the correct result is reached for the wrong
reason.” Computer Network, Inc, 265 Mich App at 313.

-7-
(b) A dangerous condition in the sidewalk itself of a particular character other than
solely a vertical discontinuity. [MCL 691.1402a(3).]

The GTLA provides that municipalities may assert “any defense available under the common law
with respect to a premises liability claim, including, but not limited to, a defense that the condition
was open and obvious.” MCL 691.1402a(5).

As it did with Wyndham Pointe, the trial court granted summary disposition in favor of the
township on the basis that the township did not owe plaintiff a duty regarding the vertical
discontinuity because the hazard was open and obvious with no special aspects. In reaching its
decision, the trial court failed to differentiate between the township and Wyndham Pointe and the
duties that each owed. The township had a statutory duty to maintain its sidewalks in such a
condition that a “vertical discontinuity defect of 2 inches or more”7 or a “dangerous condition” did
not exist. MCL 691.1402a(3)(a). Although the township may assert as a defense that the condition
was open and obvious, MCL 691.1402a(5), whether the vertical discontinuity was open and
obvious is relevant to the issues of breach and comparative fault, not the determination of duty.
See Kandil-Elsayed, 512 Mich at 144, 147-148. Plaintiff’s testimony and Ziemba’s affidavit
provide sufficient evidence that would allow a rational jury to conclude that an average person of
ordinary intelligence would not have discovered the vertical discontinuity upon casual inspection
when approaching the discrepancy from the high side. Accordingly, we reverse the trial court’s
grant of summary disposition in favor of the township.

The salient question is whether the township had possession or control of the subject
sidewalk and thus had a duty under MCL 691.1402a(1) to maintain the sidewalk in reasonable
repair. Wyndham Pointe disputed this issue before the trial court, asserting that there was “a
genuine issue of material fact regarding who was in possession and control of the sidewalk at the
time of Plaintiff’s fall and therefore, summary disposition on this issue is inappropriate.” Because
the trial court concluded that the vertical discontinuity was open and obvious and thus neither
defendant owed plaintiff a duty, it did not determine whether summary disposition in favor of the
township was warranted on the basis that it did not have possession or control of the sidewalk or
whether further fact-finding was needed on that question. Accordingly, we reverse and remand
for future determinations on that issue.

The township further argues that the trial court’s grant of summary disposition in its favor
should be affirmed because there is no evidence that the township knew or should have known of
the defect in the sidewalk for 30 or more days before plaintiff’s fall and thus it is entitled to
governmental immunity. We disagree. “A defendant is ‘conclusively presumed’ to have
knowledge of the defect ‘when the defect existed so as to be readily apparent to an ordinarily
observant person for a period of 30 days or longer before the injury took place.’ ” Bernardoni v

7
Plaintiff alleged in his amended complaint that the vertical discontinuity was at least two inches,
and testified that it was “over 2 inches.” In response to the township’s motion, plaintiff presented
a photograph of a measurement of the vertical discontinuity, which was over two inches. The
township did not present any evidence or testimony that the vertical discontinuity was less than
two inches. Thus, plaintiff rebutted the statutory presumption that the township maintained the
subject sidewalk in reasonable repair.

-8-
City of Saginaw, 499 Mich 470, 474; 886 NW2d 109 (2016), quoting MCL 691.1403. “Generally,
the question of whether a street defect . . . has existed a sufficient length of time and under such
circumstances that the municipality is deemed to have notice is a question of fact, and not a
question of law.” Bernardoni, 499 Mich at 474 (cleaned up). Plaintiff did not present any evidence
that the township had actual notice of the vertical discontinuity before his fall. But he presented
photographs of the vertical discontinuity and an affidavit from his safety expert, who averred that
“[t]he extent of the height difference is a sure indicator that this hazard was in existence for a
period over 30 days. Several freeze-thaw cycles as water infiltrated the sidewalk joint from that
previous winter are likely responsible for this abrupt vertical discontinuity.” Viewed in the light
most favorable to plaintiff, the photographs and expert opinion give rise to a reasonable inference
that the defect had been present for more than 30 days. Accordingly, there is a genuine issue of
material fact as to whether the township had constructive notice of the sidewalk defect.

V. CONCLUSION

We affirm the trial court’s determination that there is a genuine issue of material fact on
the issue of causation, but we reverse the trial court’s grant of summary disposition in favor of
defendants on the issue of duty and remand for further proceedings. On remand, the trial court
shall address whether the township had possession or control of the subject sidewalk and thus had
a duty under MCL 691.1402a(1) to maintain the sidewalk in reasonable repair.

We do not retain jurisdiction.

/s/ Mark J. Cavanagh
/s/ Sima G. Patel

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10525646. Public record. Not legal advice.