Pamela Grunau v. East Lansing Athletic Club 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

PAMELA GRUNAU, UNPUBLISHED

April 14, 2022

Plaintiff-Appellant,

v No. 356233

Ingham Circuit Court

EAST LANSING ATHLETIC CLUB, INC., doing LC No. 19-000911-NO

business as SPARROW MICHIGAN ATHLETIC

CLUB,

Defendant-Appellee.

Before: RONAYNE KRAUSE, P.J., and MURRAY and O’BRIEN, JJ.

PER CURIAM.

In this premises liability action, plaintiff appeals by right the trial court’s order granting

defendant’s motion for summary disposition under MCR 2.116(C)(8) and (C)(10). We affirm.

I. FACTS

In January 2019, plaintiff went to the Sparrow Michigan Athletic Club (the “MAC”) to

attend a water exercise class. Plaintiff went to the women’s locker room to change into her

swimsuit, and as she was leaving the locker room, several women were standing in the path she

previously took to go to her locker. Plaintiff took another path out of the locker room, and while

she was walking out, she saw a wet spot on the carpeted floor that she believed was water. Plaintiff

stepped on the wet spot, slipped, and fell. After she fell, plaintiff saw a bucket underneath the

benches with a small amount of a brown, greasy liquid in it. An MAC employee informed plaintiff

that the liquid on the floor was antifreeze, which had leaked from a rooftop unit, through the ceiling

and into the locker room.

Plaintiff filed a complaint against defendant, alleging claims of premises liability and

negligence. Defendant sought summary disposition pursuant to MCR 2.116(C)(8) and (C)(10).

Through a well-reasoned opinion and order, the trial court granted the motion, and this appeal

followed.

II. ANALYSIS

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A. STANDARD OF REVIEW

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

Pugno v Blue Harvest Farms LLC, 326 Mich App 1, 11; 930 NW2d 393 (2018). Under MCR

2.116(C)(8), summary disposition is appropriate when “[t]he opposing party has failed to state a

claim on which relief can be granted.” The trial court must accept all factual allegations in the

pleadings as true and consider the pleadings alone. El-Khalil v Oakwood Healthcare, Inc, 504

Mich 152, 160; 934 NW2d 665 (2019). A motion under MCR 2.116(C)(8) “may only be granted

when a claim is so clearly unenforceable that no factual development could possibly justify

recovery.” Id. Under MCR 2.116(C)(10), summary disposition is appropriate 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.” This Court must consider the

“pleadings, admissions, and other evidence submitted by the parties in the light most favorable to

the nonmoving party.” Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008).

“A genuine issue of material fact exists when the record leaves open an issue upon which

reasonable minds might differ.” Johnson v Vanderkooi, 502 Mich 751, 761; 918 NW2d 785 (2018)

(quotation marks, citation, and alteration omitted).

B. DISMISSAL OF NEGLIGENCE CLAIM

Plaintiff argues that the trial court erred by dismissing her negligence claim under MCR

2.116(C)(8) on the basis that the claim sounds in premises liability.

“Courts are not bound by the labels that parties attach to their claims.” Buhalis v Trinity

Continuing Care Servs, 296 Mich App 685, 691; 822 NW2d 254 (2012). “Instead, an action should

be determined by reading the entire complaint, looking beyond procedural labels, and determining

the exact nature of the claim.” Pugno, 326 Mich App at 13. “Michigan law distinguishes between

claims arising from ordinary negligence and claims premised on a condition of the land.” Buhalis,

296 Mich App at 692. A plaintiff may bring a claim of ordinary negligence for the overt acts of a

premises owner that occur on his or her premises. Kachudas v Invaders Self Auto Wash, Inc, 486

Mich 913, 914; 781 NW2d 806 (2010). However, “[i]f the plaintiff’s injury arose from an

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

ordinary negligence . . . .” Id.

Despite their headings, plaintiff’s two counts were based in premises liability because each

alleged that plaintiff’s injury occurred because of a condition on the land, the wet spot on the

carpeted floor, rather than defendant’s conduct. See Buhalis, 296 Mich App at 692. Therefore,

the two counts in plaintiff’s complaint sound solely in premises liability, and the trial court

properly dismissed her ordinary negligence claim pursuant to MCR 2.116(C)(8).

C. OPEN AND OBVIOUS DANGER

We also reject plaintiff’s argument that the trial court erred by granting summary

disposition of her premises liability claim on the basis that the wet spot on the floor was an open

and obvious condition.

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Plaintiff was an invitee at the MAC because she was there as a gym member to use the

exercise equipment at the gym. See Stitt v Holland Abundant Life Fellowship, 462 Mich 592, 597;

614 NW2d 88 (2000) (“[I]nvitee status is commonly afforded to persons entering upon the

property of another for business purposes.”). “In general, a premises possessor owes a duty to an

invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused

by a dangerous condition on the land.” Lugo v Ameritech Inc, 464 Mich 512, 516; 629 NW2d 384

(2001). See also Estate of Livings v Sage’s Investment Group LLC, 507 Mich 328, 337-338; 968

NW2d 397 (2021). This duty is breached if a premises possessor “knows or should know of a

dangerous condition on the premises of which the invitee is unaware and fails to fix the defect,

guard against the defect, or warn the invitee of the defect.” Hoffner v Lanctoe, 492 Mich 450, 460;

821 NW2d 88 (2012). “Absent special aspects, this duty does not extend to open and obvious

dangers.” Estate of Trueblood v P & G Apartments, LLC, 327 Mich App 275, 285; 933 NW2d 732

(2019). In addition, a plaintiff must establish the elements of ordinary negligence in a premises

liability action: that the defendant owed the plaintiff a duty, the defendant breached that duty, the

defendant’s breach proximately caused plaintiff’s injury, and the plaintiff suffered damages. Id.

A dangerous condition is open and obvious if “it is reasonable to expect that an average

person with ordinary intelligence would have discovered it upon casual inspection.” Hoffner, 492

Mich at 461. This is an objective standard. Lugo, 464 Mich at 517. As a result, “[t]his Court

looks not to whether a particular plaintiff should have known that the condition was hazardous,

but to whether a reasonable person in his or her position would have foreseen the danger.”

Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich App 710, 713; 737 NW2d 179 (2007).

Although a wet spot on a floor is not always open and obvious, it may be open and obvious if it is

visible to a reasonable person upon casual inspection. Watts v Mich Multi-King, Inc, 291 Mich

App 98, 104; 804 NW2d 569 (2010) (rejecting the argument that a wet floor is always open and

obvious regardless of its visibility, and indicating that water on the floor may be open and obvious

if discoverable upon casual inspection).

The wet spot on the floor upon which plaintiff slipped was open and obvious because a

person of ordinary intelligence could have reasonably discovered it upon casual inspection.

Hoffner, 492 Mich at 461. Indeed, plaintiff admitted during her deposition that the wet spot on the

floor was readily observable and that she saw it before she stepped on it and proceeded to step on

it knowing it was there. There is no evidentiary dispute that the wet spot on the floor had a

coloration that made it stand out to a casual observer. That plaintiff thought this wet spot was

water, and subjectively believed it would not pose a danger, is irrelevant because the wet spot on

the floor was reasonably discoverable upon casual inspection to a person of ordinary intelligence.

See id.

Nor was the wet spot on the floor a special aspect taking this case out of the open and

obvious doctrine. “[I]f 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.” Lugo, 464 Mich at 517. To prevent the application of the open

and obvious danger doctrine, special aspects must make the condition either (1) effectively

unavoidable, or (2) unreasonably dangerous such that special aspects impose an unreasonably high

risk of severe harm. Estate of Livings, 507 Mich at 338-339; Kennedy, 274 Mich App at 716. An

unreasonably dangerous hazard is a hazard that is more than “theoretically or retrospectively

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dangerous, because even the most unassuming situation can often be dangerous under the wrong

set of circumstances.” Hoffner, 492 Mich at 472.

Nothing in the evidence about the wet spot on the carpeted floor raised an issue of material

fact as to whether it was unreasonably dangerous. Plaintiff did not present any evidence

demonstrating that the antifreeze on the floor presented an unreasonably high risk of severe harm

or death. The only evidence plaintiff presented was that the wet spot was “greasy,” which is

insufficient to demonstrate an unreasonably high risk of severe harm or death. See Lugo, 464

Mich at 518. Further, that the wet spot was theoretically or retrospectively dangerous is

insufficient to demonstrate that the wet spot was unreasonably dangerous. Hoffner, 492 Mich at

472. The trial court did not err in concluding that, because the wet spot on the floor was open and

obvious, defendant did not have a duty to warn plaintiff of its existence.

Plaintiff additionally sets forth the unpreserved argument that the open and obvious danger

doctrine should be abolished. We reject this argument for several reasons, both procedural and

substantive. Procedurally, we first emphasize that the argument is unpreserved as it was not raised

in the trial court. Second, plaintiff offers relatively no law supporting the argument, and to the

extent she cites some case law, it does not support her position. Third, we are bound by the rules

of stare decisis to follow this doctrine as applied in previous decisions of the Supreme Court. See

Paige v Sterling Hts, 476 Mich 495, 524; 720 NW2d 219 (2006); MCR 7.215(C)(2).

Substantively, even if we address this unpreserved argument, each of plaintiff’s arguments

are simply incorrect. First, the open and obvious danger doctrine is not contrary to public policy.

Though plaintiff cites no law in support of her position, multiple Michigan Supreme Court cases

state that the open and obvious danger doctrine is in alignment with the “the overriding public

policy of encouraging people to take reasonable care for their own safety [which] precludes

imposing a duty on the possessor of land to make ordinary steps foolproof.” Lugo, 464 Mich at

522 (quotation marks omitted), quoting Bertrand v Alan Ford, Inc, 449 Mich 606, 616-617; 537

NW2d 185 (1995). This public policy is in place “because such dangers, by their nature, apprise

an invitee of the potential hazard, which the invitee may then take reasonable measures to avoid.”

Hoffner, 492 Mich at 461. This common law policy has existed in Michigan for more than a

century, see Caniff v Blanchard Navigation Co, 66 Mich 638; 33 NW 744 (1887) and Lugo, 464

Mich at 528 (CAVANAGH, J., concurring)(Citing Caniff and recognizing that “recovery has been

barred in premises liability cases involving open and obvious dangers for at least a century.”), and

plaintiff has offered no sound reason to overturn that sound policy now, even if we could do so.

Second, plaintiff’s argument that the open and obvious danger doctrine takes factual

decisions away from the fact-finder ignores the fact that the existence of a duty is a question of

law for the court to decide, Hill v Sears Roebuck and Co, 492 Mich 651, 659; 822 NW2d 190

(2012), and ignores that this common-law doctrine directly asks the fact-finder to determine

whether a reasonable person in plaintiff’s position would have foreseen the danger. Kennedy, 274

Mich App at 713. This is by definition a factual determination that the trier of fact must make

when material facts are disputed.

Third, the open and obvious danger doctrine is not a form of contributory negligence and

does not frustrate the purpose of comparative fault. The Supreme Court directly rejected this

argument in Riddle v McLouth Steel Products Corp, 440 Mich 85, 95; 485 NW2d 676 (1992)

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(quotation marks and citation omitted), where the Court stated, that “[t]he Court of Appeals

incorrectly determined that the no duty to warn of open and obvious danger rule is inconsistent

with comparative negligence and should be abolished. The adoption of comparative negligence

in Michigan does not abrogate the necessity of an initial finding that the premises owner owed a

duty to invitees.” Thus, any argument that the open and obvious doctrine is inconsistent with

comparative negligence ignores Riddle and the distinction between duty and liability.

Finally, although plaintiff argues that the rationale for granting landowners immunity for

injuries from obvious dangers dates back to feudal England and is therefore outdated, there are

other public policy considerations that support the open and obvious danger doctrine, as discussed

above, including encouraging people to take reasonable care for their own safety when on

another’s property. See, e.g., Lugo, 464 Mich at 522.

Affirmed.

/s/ Amy Ronayne Krause

/s/ Christopher M. Murray

/s/ Colleen A. O’Brien

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