Kristopher William Robert Wilson v. Brk Inc

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

KRISTOPHER WILLIAM ROBERT WILSON, FOR PUBLICATION

May 30, 2019

Plaintiff-Appellant, 9:10 a.m.

v No. 342449

Wayne Circuit Court

BRK, INC., and R & C LAND, INC., d/b/a LC No. 16-008051-NO

DIAMONDBACK SALOON,

Defendants-Appellees.

Before: REDFORD, P.J., and MARKEY and K. F. KELLY, JJ.

MARKEY, J.

Plaintiff Kristopher Wilson appeals by right the trial court’s order granting summary

disposition in favor of defendants BRK, Inc., and R & C Land, Inc., d/b/a Diamondback Saloon,

under MCR 2.116(C)(10) in this action arising out of plaintiff’s fall from a wheelchair when

exiting defendants’ bar. We reverse and remand for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendants’ bar has a cement ramp that starts near handicapped parking spots, runs along

the side of the building, and gradually slopes upward to a doorway, allowing access for

physically-limited patrons. The top of the ramp meets the top of a separate stairwell, both

leading to a single set of doors into the bar. At the door’s threshold is a 3½-inch-tall, yellow-

painted step that must be navigated by handicapped and non-handicapped customers alike.

Plaintiff is confined to a wheelchair. After a visit to the bar one evening, he began to exit the

establishment with a friend, who was pushing the wheelchair. As plaintiff went through the

doorway and over the step, the wheelchair tipped forward, throwing plaintiff to the ground and

causing injuries. Plaintiff had patronized the bar on three or four previous occasions, negotiating

the step without incident with the assistance of friends.

Plaintiff filed suit against defendants. Plaintiff alleged that the entranceway step

constituted a barrier in violation of federal, state, and local laws protecting individuals with

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disabilities. He further asserted that defendants were negligent and grossly negligent for failing

to maintain the premises in a reasonably safe condition, failing to warn customers about the

defect or hazard, and for failing to replace the entranceway step with a ramp. Finally, plaintiff

claimed that defendants had created a nuisance by allowing an inherently dangerous condition to

exist, placing “those on the premises in a position of peril.” Subsequently, defendants moved for

summary disposition, arguing in relevant part that plaintiff’s action sounded in premises liability,

not ordinary negligence or nuisance, that the entranceway step was open and obvious with no

special aspects, that there was no code or regulatory violation, and that the open and obvious

danger doctrine applied regardless of any regulatory or code violation.

In his response brief, plaintiff argued that the bar’s entranceway as constructed with the

step was not in compliance with MCL 125.1351 et seq., which provide for the use of public

facilities by the physically limited and require barrier-free access. Plaintiff claimed that the open

and obvious danger doctrine does not apply to a violation of a statutory duty and further

maintained that the Stille-DeRossett-Hale Single State Construction Code Act (SCCA), MCL

125.1501 et seq., incorporated the Building Officials and Code Administrators International,

Inc., Manual (BOCA code) pursuant to MCL 125.1504(2), and that the BOCA code required,

before the bar’s construction in 1977, that at least one entranceway to a public facility be

handicap accessible. Additionally, plaintiff claimed that the Persons with Disabilities Civil

Rights Act (PDCRA), MCL 37.1101 et seq., was implicated and violated.1 Plaintiff also

contended that the step was effectively unavoidable because the step was located at the only

entrance/exit point available to a wheelchair-bound patron. Finally, plaintiff argued that some of

his claims sounded in ordinary negligence and nuisance, not premises liability, and that the open

and obvious danger doctrine does not apply to ordinary negligence and nuisance claims.

The trial court heard defendants’ motion for summary disposition and took the matter

under advisement. The court later issued a written opinion and order granting defendants

summary disposition. The trial court ruled that the case sounded in premises liability, not

ordinary negligence, that the step was open and obvious, that there were no special aspects of the

step that would avoid application of the open and obvious danger doctrine, and that “[a]ny

alleged violation of the building code . . . does not negate the application of the open and obvious

doctrine.” The court also noted that there was no evidence that the entranceway step had ever

been found to be in violation of a statute or building code. Indeed, the trial court explained that

defendants presented undisputed evidence that the building had been inspected and approved by

state and local authorities several times since its construction in 1977 and had never been cited

for a violation. Plaintiff appeals by right.

II. ANALYSIS

A. STANDARD OF REVIEW

1

Specifically, plaintiff cited MCL 37.1102(1), which provides that “[t]he opportunity to obtain .

. . full and equal utilization of public accommodations . . . without discrimination because of a

disability is guaranteed by this act and is a civil right.”

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This Court reviews de novo a trial court's ruling on a motion for summary disposition.

Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162; 809 NW2d 553 (2011).

We also review de novo issues of statutory construction. Estes v Titus, 481 Mich 573, 578-579;

751 NW2d 493 (2008).

B. ORDINARY NEGLIGENCE VERSUS PREMISES LIABILITY

Plaintiff maintains that defendants engaged in ordinary negligence by directing

physically-limited invitees to use the entrance where a customer would be forced to encounter

the 3½-inch step or threshold. Plaintiff states that the ramp, which defendants knew would be

used for handicap access to the business, leads directly to the problematic entranceway. We note

that plaintiff does not present any appellate argument attempting to resurrect his nuisance claim.

“It is well settled that the gravamen of an action is determined by reading the complaint

as a whole, and by looking beyond mere procedural labels to determine the exact nature of the

claim.” Adams v Adams (On Reconsideration), 276 Mich App 704, 710-711; 742 NW2d 399

(2007). “Michigan law distinguishes between claims arising from ordinary negligence and

claims premised on a condition of the land.” Buhalis v Trinity Continuing Care Servs, 296 Mich

App 685, 692; 822 NW2d 254 (2012). “If the plaintiff's injury arose from an allegedly

dangerous condition on the land, the action sounds in premises liability rather

than ordinary negligence; this is true even when the plaintiff alleges that the premises possessor

created the condition giving rise to the plaintiff's injury.” Id.; see also Compau v Pioneer

Resource Co, LLC, 498 Mich 928; 871 NW2d 210 (2015). The open and obvious danger

doctrine is inapplicable to a claim of ordinary negligence. Laier v Kitchen, 266 Mich App 482,

484; 702 NW2d 199 (2005). “A plaintiff cannot avoid the open and obvious danger doctrine by

claiming ordinary negligence when the facts only support a premises liability claim[.]” Jahnke v

Allen, 308 Mich App 472, 476; 865 NW2d 49 (2014).

Plaintiff’s lawsuit ultimately concerns an injury arising from an allegedly dangerous

condition on the land, i.e., a step that must be navigated by physically-limited patrons in order to

enter and exit the bar. Plaintiff’s effort to frame a portion of his complaint as alleging ordinary

negligence is strained. Plaintiff is essentially arguing that defendants created the dangerous

condition by directing handicapped customers to use the step. This characterization, however,

does not suffice to defeat the fact that this is a premises liability action. Buhalis, 296 Mich App

at 692. The trial court did not err in ruling that the portions of the complaint that plaintiff asserts

sound in ordinary negligence actually sound in premises liability.

C. SPECIAL ASPECTS – EFFECTIVELY UNAVOIDABLE PRONG

Plaintiff next contends that the entranceway step, which constituted a barrier to invitees

using a wheelchair, was effectively unavoidable because the doorway was the only one that a

wheelchair-bound customer could use to exit the establishment.

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An exception to the duty owed for open and obvious dangers arises

when special aspects of a condition make even an open and obvious risk unreasonable. Hoffner

v Lanctoe, 492 Mich 450, 461; 821 NW2d 88 (2012).2 Special aspects exist when an open and

obvious hazard remains unreasonably dangerous or when it is effectively unavoidable. Id. at

461-463. The Hoffner Court further explained:

[W]hen confronted with an issue concerning an open and obvious hazard,

Michigan courts should hew closely to the principles previously discussed. It

bears repeating that exceptions to the open and obvious doctrine are narrow and

designed to permit liability for such dangers only in limited, extreme situations.

Thus, an “unreasonably dangerous” hazard must be just that—not just a

dangerous hazard, but one that is unreasonably so. And it must be more

than theoretically or retrospectively dangerous, because even the most

unassuming situation can often be dangerous under the wrong set of

circumstances. An “effectively unavoidable” hazard must truly be, for all practical

purposes, one that a person is required to confront under the circumstances. A

general interest in using, or even a contractual right to use, a business's services

simply does not equate with a compulsion to confront a hazard and does not rise

to the level of a “special aspect” characterized by its unreasonable risk of

harm. [Id. at 472-473 (citations omitted).]

Plaintiff analogizes his case to the hypothetical “special aspect” situation given in Lugo v

Ameritech Corp, Inc, 464 Mich 512, 518; 629 NW2d 384 (2001), wherein the Supreme Court

stated:

An illustration of such a situation might involve, for example, a

commercial building with only one exit for the general public where the floor is

covered with standing water. While the condition is open and obvious, a customer

wishing to exit the store must leave the store through the water. In other words,

the open and obvious condition is effectively unavoidable.

Wheelchair-bound customers entering and exiting the bar are forced to encounter the

step. This fact necessarily narrows our focus, leaving only one pertinent question—was the

2

Considering whether a danger or defect is open and obvious is an integral aspect of defining the

duty owed by an invitor to an invitee. Hoffner, 492 Mich at 460. A possessor of land does not

owe a duty to protect or warn an invitee of dangers that are open and obvious. Id. This is

“because such dangers, by their nature, apprise an invitee of the potential hazard, which the

invitee may then take reasonable measures to avoid.” Id. at 461. “Whether a danger is open and

obvious depends on whether it is reasonable to expect that an average person with ordinary

intelligence would have discovered it upon casual inspection.” Id. The required analysis

involves examination of the objective nature of the condition of the premises. Id. There is no

dispute that plaintiff was an invitee and that the step was open and obvious.

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hazard effectively avoidable because plaintiff could have chosen not to patronize the bar in the

first place? Our Supreme Court in Hoffner, 492 Mich 450, held that ice on a sidewalk in front of

the only entrance to a fitness center was an avoidable open and obvious danger even though the

plaintiff had a paid membership to use the center. The Court concluded that “[a] general interest

in using, or even a contractual right to use, a business's services simply does not equate with a

compulsion to confront a hazard and does not rise to the level of a ‘special aspect[.]’ ” Id. at

472-473. The Hoffner Court noted “that the standard for ‘effective unavoidability’ is that a

person, for all practical purposes, must be required or compelled to confront a dangerous

hazard.” Id. at 469. The Supreme Court expressly abrogated this Court’s decision in Robertson

v Blue Water Oil Co, 268 Mich App 588, 594; 708 NW2d 749 (2005), where the panel held:

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

conditions as long as the customers even technically had the option of declining

the invitation. [Citations and quotation marks omitted.]

The Court in Hoffner ruled that “we reject the Robertson majority's analysis of the ‘effectively

unavoidable’ doctrine.” Hoffner, 492 Mich at 468 n 31. Robertson would have supported

plaintiff’s position in the instant action, but that holding is no longer viable given Hoffner.

We conclude that Hoffner dictates that we conclude that the entranceway step was

avoidable because plaintiff was not compelled to patronize the bar and confront the step. And

with respect to Lugo, we note there was no indication in the Court’s hypothetical that the water

in the building had been confronted by customers when they first entered the building.3

Therefore, Lugo does not support plaintiff’s argument. In sum, we affirm the trial court’s

determination that as a matter of law, no special aspects existed.

D. STATUTORY VIOLATION

In a third and final attempt to avoid application of the open and obvious danger doctrine,

plaintiff argues that the statutory duty to provide access for physically-limited persons requires

constructing at least one barrier-free entrance/exit and that this statutory duty takes precedence

over common-law defenses such as the open and obvious danger defense. Plaintiff initially cites

MCL 125.1352(1), which provides:

3

To view or construe the hypothetical in Lugo to the contrary would necessarily create tension

between Lugo and Hoffner.

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A public facility or facility used by the public the contract for construction

of which or the first contract for construction of a portion of which is made after

July 2, 1974, shall meet the barrier free design requirements contained in the state

construction code.[4]

Thus, with respect to the particular design requirements that a facility must meet to qualify as

barrier free, MCL 125.1352(1) incorporates by reference those requirements contained in the

“state construction code.” And that code—the SCCA—provides, in part, as follows:

The code shall consist of the international residential code, the

international building code, the international mechanical code, the international

plumbing code, the international existing building code, and the international

energy conservation code published by the international code council and the

national electrical code published by the national fire prevention association, with

amendments, additions, or deletions as the director determines appropriate. The

director may adopt all or any part of these codes or the standards contained within

these codes by reference. [MCL 125.1504(2).]

Thus, according to plaintiff, the BOCA code is ultimately incorporated into the statutory

scheme. Below, plaintiff submitted part of the 1975 BOCA code covering portions of Section

316.0, which concerned the physically handicapped and aged. Section 316.3 addressed building

entrances, providing:

At least one (1) primary entrance at each grade floor level of a building or

structure shall be accessible from the parking lot or the nearest street by means of

a walk uninterrupted by steps or abrupt changes in grade and shall have width of

not less than five (5) feet and a gradient of not more than one (1) foot in twenty

(20) feet or a ramp meeting the requirements of Section 615.0. The entrance shall

comply with requirements of Section 612.0.

“The open and obvious danger doctrine cannot be used to avoid a specific statutory

duty.” Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich App 710, 720-721; 737 NW2d

179 (2007); see also Woodbury v Bruckner, 467 Mich 922; 658 NW2d 482 (2002) (remanding

case because the open and obvious danger doctrine cannot be employed to avoid the application

of a duty established by statute), and Jones v Enertel, Inc, 467 Mich 266, 270; 650 NW2d 334

(2002) (rejecting argument that the open and obvious danger doctrine can apply to avoid the

statutory duty to maintain sidewalks in reasonable repair5). To the extent that the trial court was

4

MCL 125.1351(b) defines “barrier free design” as “those architectural designs which eliminate

the type of barriers and hindrances that deter physically limited persons from having access to

and free mobility in and around a building, structure, or improved area.”

5

We note that the Legislature has since inserted language into the statute addressing a

municipality’s duty to keep sidewalks in reasonable repair, providing that a municipal

corporation may now assert common-law defenses, “including, but not limited to, a defense that

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of the view that the statutory-duty exception to the open and obvious danger doctrine is only

implicated in regard to a lessor’s statutory obligations under MCL 554.139, we find the court

was mistaken. It is true that a lessor or landlord cannot rely on the open and obvious danger

doctrine if a duty was violated under MCL 554.139. See Allison v AEW Capital Mgmt, LLP, 481

Mich 419, 425 n 2; 751 NW2d 8 (2008) (“[A] defendant cannot use the ‘open and obvious’

danger doctrine to avoid liability when the defendant has a statutory duty to maintain the

premises in accordance with MCL 554.139(1)(a) or (b).”). There is no indication in the caselaw,

however, that the statutory-duty exception to the open and obvious danger doctrine is limited to

duties created under MCL 554.139. Indeed, as noted above, the statutory-duty exception was

recognized in Jones, 467 Mich at 270, in relation to a governmental agency’s duty to maintain

sidewalks in reasonable repair.

In support of its position that the open and obvious danger doctrine applied regardless of

plaintiff’s argument that a statutory duty existed to provide a barrier-free entranceway, the trial

court relied on Schollenberger v Sears, Roebuck & Co, 925 F Supp 1239 (ED Mich, 1996), and

Kennedy, 274 Mich App 710. The trial court’s reliance on these cases was misplaced.

As a federal district court decision, Schollenberger has no binding precedential value to

this Court. See Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004)

(“Although lower federal court decisions may be persuasive, they are not binding on state

courts.”). Furthermore, Schollenberger predated the development in Michigan law of the

principle that the open and obvious danger doctrine cannot be employed to avoid a statutory duty

or obligation. Jones, 467 Mich at 270; Woodbury, 467 Mich at 922; Kennedy, 274 Mich App at

720-721. It appears from our research that this principle was first clearly expressed in Michigan

jurisprudence in 2002 in our Supreme Court’s Jones decision. In fact, the federal court in

Schollenberger did not even examine the specific issue of whether a statutory violation obviates

application of the open and obvious danger doctrine. Accordingly, we do not find

Schollenberger relevant.

In Kennedy, 274 Mich App 710, the plaintiff was injured when he slipped on crushed

grapes or grape residue on the floor of the defendants’ grocery store. After rejecting the

plaintiff’s various arguments that the hazard was not open and obvious, this Court turned its

attention to his assertion “that the open and obvious danger doctrine cannot bar recovery because

defendants breached a separate and independent duty created by the International Property

Maintenance Code.” Id. at 719. The Kennedy panel first noted:

Neither the record nor the briefs contain any indication that the

International Property Maintenance Code had been adopted by the municipality

where plaintiff's accident occurred. Likewise, we find no support for plaintiff's

assertion that a violation of the International Property Maintenance Code is

equivalent to a violation of state statute. Nonetheless, we will address plaintiff's

code-based arguments for purposes of this appeal. [Id. at 719 n 1.]

[a] condition was open and obvious.” MCL 691.1402a(5); 2016 PA 419, effective January 4,

2017.

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The Court explained that “even in cases of code violations, the relevant inquiry remains

whether any special aspects rendered the otherwise open and obvious condition unreasonably

dangerous.” Id. at 720. The Court concluded as a matter of law that the grapes on the

supermarket floor did not create an unreasonably high risk of harm. Id. Reading somewhat

between the lines, the Kennedy panel determined that a code violation did not preclude

application of the open and obvious danger doctrine. This Court, however, then addressed the

plaintiff’s additional argument that even if the grapes were open and obvious, the defendants

violated a statutory duty to provide a safe workplace as required by the Michigan Occupational

Safety and Health Act (MIOSHA), MCL 408.1001 et seq., and administrative regulations

promulgated under MIOSHA, rendering the open and obvious danger doctrine inapplicable. Id.

at 720-721. The panel acknowledged that “[t]he open and obvious danger doctrine cannot be

used to avoid a specific statutory duty.” Id. The Court then ruled:

MIOSHA and the regulations enacted under MIOSHA apply only to the

relationship between employers and employees and therefore do not create duties

that run in favor of third parties. Accordingly, MIOSHA does not impose a

statutory duty in favor of third parties in the negligence context. Nor do

administrative regulations enacted under MIOSHA impose duties in favor of third

parties in the negligence context. Neither MIOSHA nor the administrative

regulations enacted under it imposed a duty on defendants running in favor of

plaintiff. Plaintiff may not rely on MIOSHA and the MIOSHA regulations to

escape application of the open and obvious danger doctrine in this premises

liability case. [Id. at 721 (citations omitted).]

Contrary to the circumstances presented in Kennedy, the instant case entails statutory

requirements to provide handicap-accessible, barrier-free entranceways to facilities open to the

public. These requirements are plainly and directly intended to benefit and protect physically-

limited persons such as plaintiff. A barrier-free design that eliminates hindrances that deter

physically-limited persons from having access and free mobility to buildings is generally

required under MCL 125.1352(1) and MCL 125.1351(b).6 Accordingly, the trial court erred in

6

With respect to the PDCRA, plaintiff merely cites the act for the proposition that it is the public

policy of this state to encourage the fullest participation possible in all areas of life by persons

who are physically handicapped. The PDCRA makes it unlawful for a person to “[d]eny an

individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages,

and accommodations of a place of public accommodation or public service because of a

disability that is unrelated to the individual's ability to utilize and benefit from the goods,

services, facilities, privileges, advantages, or accommodations or because of the use by an

individual of adaptive devices or aids.” MCL 37.1302(a). A person who alleges a violation of

the PDCRA “may bring a civil action for . . . damages[.]” MCL 37.1606(1). And the PDCRA

“shall not diminish the right of a person to seek direct and immediate legal or equitable remedies

in the courts of this state.” MCL 37.1607. Here, plaintiff’s case is not about being denied equal

enjoyment of the bar because of his disability; he enjoyed an evening of drinking and pool at the

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determining that the open and obvious danger doctrine applied to plaintiff’s allegations that

defendants’ entranceway step violated a statutory duty owed to persons with physical limitations.

With respect to whether there was a statutory violation, the trial court appeared to accept

defendants’ contention that the entranceway step did not constitute a violation, as reflected in the

fact that despite numerous inspections over the years by state and federal authorities, no

violations were documented. Defendants argue that plaintiff presented no evidence showing a

statutory or code violation regarding the entranceway or step. Moreover, according to

defendants, construction plans had been reviewed and the premises had been inspected over the

years by the Barrier Free Design Board, Van Buren Township, and by Wayne County.

Defendants were never issued any violations or citations associated with the entranceway and

provided supporting documentation to that effect below.

Plaintiff, however, submitted an unsigned and undated “Field Correction Notice” (FCN)

pertaining to the bar with the insignia of Van Buren Township at the top of the document and

which ostensibly indicated a need for a correction in regard to “B/F STEP FRONT DR.”

A building inspector for Van Buren Township testified in her deposition that the bar fell

under the barrier-free requirements of MCL 125.1351 and MCL 125.1352. In reference to the

FCN, the inspector acknowledged that it came from the township’s files, but she could not tell

who authored the notice or when it was prepared. She additionally testified:

Q. [W]hat does the first line [of the FCN] say?

A. “BF step front door.”

Q. What does that mean to you?

A. I’m going to say barrier-free step front door.

Q. Does the [bar] have a barrier-free step at the front door?

A. From the pictures you showed me, I’m going to say no.

Q. And so it didn’t comply with the [FCN]?

A. Correct.

Q. And it didn’t comply with the code that we already talked about,

correct?

A. Correct.

bar. Rather, his suit encompasses a request for money damages related to a physical injury

caused by an allegedly hazardous step that was not in compliance with barrier-free statutory

mandates under MCL 125.1351 et seq., the SCCA, and the statutorily-incorporated BOCA code.

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The inspector could not say whether defendants ever received the FCN, and other evidence

indicates or suggests that defendants had not been sent or received it.

Although the inspector recalled having inspected the bar in the past, she did not

remember the step. She indicated that had she noticed the step, she probably would have made a

note of it. In testifying about a walk-through of the bar in 2014, which was focused mostly on

alterations in the kitchen area, the inspector stated that no code violations were issued and that

permits were approved. This had also been the case earlier in 2014 in regard to a new deck for

the bar and a corresponding inspection. But the inspector also testified, “[T]he barrier-free might

have got missed[.]” With respect to an inspection of the bar in 2003 relative to a liquor license,

the township inspector testified that no mention was made of any code violation in connection

with the entranceway. Aside from the FCN, the inspector’s examination of the files pertaining to

the bar did not reveal any citations or violations in regard to the entranceway step.

Defendants presented documentation showing that in 1977-1978 the Barrier Free Design

Board had granted some exceptions based on the submitted architectural plans for the facility

unrelated to the main entranceway and that the Board ultimately approved of the plans.

Defendants also submitted a 1978 letter from the Wayne County Sheriff’s Department to the

Liquor Control Commission. The letter provided, “We toured the facility at the above address,

made the necessary observations, found the building to conform to all rules, regulations and

qualifications necessary to complete the inspection and give approval.” Additionally, defendants

presented a plethora of documentation regarding building inspections that had been conducted

over the years for various reasons, none of which showed any statutory or code violations arising

from the entranceway step. It is unnecessary for us to delve into the details of those documents.

We cannot accept the trial court’s or defendants’ logic that simply because the bar was

never issued any violations or citations relative to the step, defendants must have been in

compliance with the statutory barrier-free requirements. In response to defendants’ summary

disposition motion under MCR 2.116(C)(10), which was supported by appropriate

documentation, plaintiff, of course, was obligated to submit evidence sufficient to create a

genuine issue of material fact. MCR 2.116(G)(4). Even if we reject consideration of the FCN,

as defendants adamantly argue we must because of its multiple inadequacies, we note that the

township’s building inspector’s testimony was sufficient to create a genuine issue of material

fact regarding whether the entranceway step violates a statutory duty with respect to access for

persons with physical limitations. She testified that, as revealed in the photographs, the

entranceway was not barrier free in light of the presence of the step.

The next issue that we address, but ultimately do not resolve, concerns whether a remedy

is available for the alleged statutory violation. Defendants argue that the statutory provisions

relied on by plaintiff do not provide independent tort remedies for his alleged physical injuries

arising from the fall; therefore, the action must be dismissed. In Allison, 481 Mich at 426 n 3,

our Supreme Court stated:

Although the nature and extent of plaintiff's remedy are not at issue in this

case, we note that, typically, a plaintiff's remedy for breach of contract is limited

to damages that arise naturally from the breach or those that were in the

contemplation of the parties at the time the contract was made. The purpose of

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this remedy is to place the nonbreaching party in as good a position as if the

contract had been fully performed. [Citations and quotation marks omitted.]

As mentioned earlier, Allison concerned a lessor’s duties under MCL 554.139, which create

implied covenants in leases, thereby explaining the Supreme Court’s reference to remedies for

breach of contract.

On this issue, defendants rely on Spagnuolo v Rudds #2, Inc, 221 Mich App 358; 561

NW2d 500 (1997), and plaintiff relies on Cebreco v Music Hall Ctr for the Performing Arts, Inc,

219 Mich App 353; 555 NW2d 862 (1996). We find neither case particularly helpful. Contrary

to plaintiff’s suggestion, this Court in Cebreco did not address a claim for physical injury under

the PDCRA. Rather, the issue of the plaintiff’s alleged physical injury was examined solely in

the context of a claim against police officers and the question of governmental immunity.

Cebreco, 219 Mich App at 355-356, 361-362.

In Spagnuolo, the wheelchair-bound plaintiff brought suit against a restaurant owner,

alleging claims of negligence and violation of the Handicappers’ Civil Rights Act (HCRA), now

known as PDCRA. She sought damages for physical injuries that she suffered when her

wheelchair slipped off a sidewalk and flipped over while she was trying to maneuver the

wheelchair around a trash barrel outside the restaurant upon leaving the business. Spagnuolo,

221 Mich App at 359-360. The plaintiff asserted that she was forced to take the route involving

the sidewalk because a designated handicap door on the other side of the restaurant was either

locked or stuck, in violation of the HCRA. Id. at 362-363. This Court, in affirming summary

dismissal of the plaintiff’s lawsuit, held

In short, plaintiff was fully accommodated during her visit to defendant's

restaurant. Because the HCRA requires no more, plaintiff could not state a valid

claim based on the HCRA. Specifically, no language in the HCRA provides an

independent tort remedy for persons injured at a place of public accommodation

because they are handicapped. Accordingly, plaintiff's HCRA claim is so clearly

unenforceable as a matter of law that no factual development could provide a

basis for recovery, and the trial court properly granted summary disposition of

plaintiff's HCRA claim for defendant pursuant to MCR 2.116(C)(8). [Id. at 363

(citations omitted).]

At most, Spagnuolo might support a determination that plaintiff does not have a cause of

action under the PDCRA, which we have already alluded to in footnote 6 of this opinion; the

PDCRA does not fit the contours of this case that entails a physical injury. The question

becomes whether a violation of the barrier-free requirements of MCL 125.1352(1) allows or

provides for a tort remedy to compensate a party for physical injuries sustained as a result of the

violation. Because the trial court never reached the issue regarding whether a remedy is

available assuming a statutory violation, we conclude it appropriate to remand this case to allow

the parties to better develop their arguments and for the trial court to initially address that

additional issue. On remand, we direct the trial court to consider any relevant statutory

provisions and the Michigan Supreme Court’s decisions in Lash v Traverse City, 479 Mich 180;

735 NW2d 628 (2007), Gardner v Wood, 429 Mich 290; 414 NW2d 706 (1987), and Pompey v

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Gen Motors Corp, 385 Mich 537; 189 NW2d 243 (1971), which address the issue of whether a

remedy or cause of action for money damages arises from a statutory violation.

We reverse and remand for further proceedings consistent with this opinion. We do not

retain jurisdiction. No party having fully prevailed on the issues presented in this appeal, we

award no taxable costs under MCR 7.219.

/s/ Jane E. Markey

/s/ James Robert Redford

/s/ Kirsten Frank Kelly

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