In this premises liability action, plaintiff appeals by right the trial court's order granting summary disposition pursuant to MCR 2.116(C)(10) in favor of defendant. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
This case arises out of a trip and fall outside of the entrance to the Great Lakes Crossing Mall ("the Mall") owned by defendant. On August 6, 2013, plaintiff and her friend Vanessa Clark went to the Mall to pick up carryout food, arriving at approximately 1:45 p.m. While walking to the entrance to the Mall, plaintiff's left shoe got caught in a strip of sealant that had been placed in a seam of the concrete sidewalk. She fell and was injured.
Plaintiff filed suit, alleging that defendants improperly repaired the sidewalk joint with a pliable sealant or caulk that compressed when she stepped on it and caused her fall. Plaintiff testified in her deposition that she thought, before she stepped on the repaired area, that the filler material was solid. Defendant moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that plaintiff's claim was barred because the condition was open and obvious and there were no special aspects about the condition to prevent application of the open and obvious doctrine. In her answer, plaintiff included a report from a proposed expert witness, Steven J. Ziemba of Comprehensive Risk Analysis, Inc., who examined the scene after the accident. The report indicated that "[t]he excessive width and depth of the intersecting concrete joints created a hole or unevenness in the pavement" and that "[t]he amount of soft caulking compound used failed to fill the gap or provide sufficient support for normally imposed pedestrian traffic." Ziemba further stated in his report that there was "an intersection of joints creating a wide gaping discontinuity up to two inches in width" at the accident site and that "[t]he defendant chose to use a caulking compound suitable for repairing small sidewalk cracks" to address the issue. Ziemba opined that "[b]ecause cured caulk remains soft, spongy and easily punctured, caulk should not be used to fill wide joints or cracks" and that "[c]racks or wide sidewalk joints that exceed ¾ inches must be filled with a cement product, such as a concrete patch or mortar." Ziemba also opined that "[f]ailure to properly maintain this section of pavement created an unreasonable risk of harm for business invitees such as [plaintiff]." Defendant filed a motion in limine to preclude Ziemba from testifying as an expert witness under MRE 702, arguing that expert testimony was not necessary to resolve the issue of openness and obviousness.
After a hearing, the trial court granted defendant's motion for summary disposition in a written opinion, concluding that the condition was open and obvious and that the condition created a risk of harm only because plaintiff failed to realize its danger. The trial court did not explicitly rule on defendant's motion in limine. Plaintiff filed a motion for reconsideration, which the trial court denied. This appeal followed.
II. STANDARD OF REVIEW
"This Court reviews the grant or denial of summary disposition de novo to determine if the moving party is entitled to judgment as a matter of law. In making this determination, the Court reviews the entire record to determine whether defendant was entitled to summary disposition." Maiden v Rozwood, 461 Mich. 109, 118; 597 N.W.2d 817 (1999). "Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." West v Gen Motors Corp, 469 Mich. 177, 183; 665 N.W.2d 468 (2003). A motion pursuant to MCR 2.116(C)(10) is reviewed "by considering 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 N.W.2d 868 (2008). "The moving party must specifically identify the matters that have no disputed factual issues, and it has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence. The party opposing the motion then has the burden of showing by evidentiary materials that a genuine issue of disputed material fact exists." Bronson Methodist Hosp v Auto-Owners Ins Co, 295 Mich.App. 431, 440-441; 814 N.W.2d 670 (2012) (citations omitted). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West, 469 Mich at 183.
"The threshold issue of the duty of care in negligence actions must be decided by the trial court as a matter of law." Riddle v McLouth Steel Prod Corp, 440 Mich. 85, 95; 485 N.W.2d 676 (1992). "Because the issue of the openness and obviousness of a hazard is an `integral part' of the question of duty, establishing whether a duty exists in light of the open and obvious nature of a hazard is an issue within the province of the court." Hoffner v Lanctoe, 492 Mich. 450, 476; 821 N.W.2d 88 (2012) (footnotes omitted). "[I]t is only when an open and obvious hazard is in some manner unreasonable that there is a question of fact for the jury." Id. (footnote omitted). We review matters of law de novo. Slaughter v Blarney Castle Oil Co, 281 Mich.App. 474, 477; 760 N.W.2d 287 (2008).
On appeal, plaintiff argues that the trial court erred by granting summary disposition based on the open and obvious doctrine. We disagree.
"In general, a premises possessor owes a duty to an invitee to exercise reasonable care to protect the invitee
Notwithstanding that a hazard may be discernable by a reasonable person in plaintiff's position, "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." Lugo, 464 Mich at 517. "The special aspects that cause even open and obvious conditions to be actionable are those that make the conditions `effectively unavoidable,' or those that `impose an unreasonably high risk of severe harm.'" Slaughter, 281 Mich App at 478. "[T]he standard for `effective unavoidability' is that a person, for all practical purposes, must be required or compelled to confront a dangerous hazard," and "situations in which a person has a choice whether to confront a hazard cannot truly be unavoidable, or even effectively so." Hoffner, 492 Mich at 469. "[N]either a common condition nor an avoidable condition is uniquely dangerous." Id. at 463.
Plaintiff tripped on a joint between adjacent slabs of a concrete walkway that had been repaired with some type of pliable caulk or sealant material. These sorts of joints and cracks in concrete sidewalks and walkways, repaired with a variety of materials, are an "everyday occurrence," much like potholes in a parking lot. Lugo, 464 Mich at 523. It is common to notice unevenness and other imperfections in the walking surface, caused by various features or conditions of the land, at the joints between slabs of a concrete sidewalk or walkway. A reasonably prudent person would be aware that joints, cracks, or other uneven areas of a sidewalk can present a tripping hazard. See, e.g., Weakley v City of Dearborn Hts, 240 Mich.App. 382, 383-384, 385; 612 N.W.2d 428 (2000). Based on the photographs submitted into evidence by both parties, the repaired joint in the sidewalk at issue in this case was clearly visible, and the material used to fill and repair the gap was of a noticeably different color than the surrounding concrete. The pictures also show the unevenness of the slabs and joint area, as well as a vertical height difference between the top of the concrete slabs and the surface of the material used to fill the joint. Indeed, plaintiff admitted that she saw the repaired area as she was walking, yet proceeded to step on it. In sum, like ordinary steps and potholes, deteriorating sidewalk joints and various imperfections in a concrete walking surface are ordinary features that people frequently encounter during the course of their everyday lives and that can be easily observed by a reasonably prudent person. See Lugo, 464 Mich at 523; Bertrand v Alan Ford, Inc, 449 Mich. 606, 616-617; 537 N.W.2d 185 (1995). The trial court did not err by holding that the condition was open and obvious, because an average user with ordinary intelligence could have discovered, after a casual inspection, the presence of the repaired area and the accompanying risk of tripping. Novotney, 198 Mich App at 475.
Additionally, there were no special aspects of the type that would remove the condition from the open and obvious doctrine. The photographs submitted into evidence show that the repaired joint was in the middle of a wide-open area and could have been avoided with minimal effort. Thus, although plaintiff thought that the joint was filled with a solid non-pliable material, plaintiff was not "compelled" to step on the joint, and the repaired joint was clearly not "effectively unavoidable." Hoffner, 492 Mich at 469; see also Joyce, 249 Mich App at 242-243. There was nothing about the surrounding circumstances that would have made it difficult for plaintiff to successfully navigate the small repaired area. See Bertrand, 449 Mich at 623-624. Furthermore, unlike the risk of harm presented by "an unguarded thirty foot deep pit," the risk of harm presented by tripping on an ordinary sidewalk joint repair like the one at issue here is not a "substantial risk of death or severe injury." Lugo, 464 Mich at 518. Common, avoidable conditions are not uniquely dangerous. Hoffner, 492 Mich at 463.
Although plaintiff argues that she thought that the filler material was solid rather than pliable and did not realize that her foot would sink in, there was nothing hiding the nature of the filler material or preventing her from discovering its pliable nature. Cf. Hughes v PMG Bldg, Inc, 227 Mich.App. 1, 11-12; 574 N.W.2d 691 (1997) (where the stability of the support for an overhang was obscured from sight). There also were bumps, imperfections, and signs of unevenness in the surface that were visibly present. As previously stated, the test for whether a condition is open and obvious is an objective one, Hoffner, 492 Mich at 461, and a reasonably prudent person could have seen that there was some risk of tripping at this joint and avoided it. Moreover, it is not "unusual" to repair the joints of a sidewalk with materials like pliable caulk or sealant or for repaired sidewalk joints to be somewhat uneven, and this factor therefore does not negate the applicability of the open and obvious doctrine. See Lugo, 464 Mich at 522.
Even after giving plaintiff the benefit of reasonable doubt, reasonable minds could not differ in concluding that an ordinary person's casual inspection would have revealed the condition of the sidewalk area and that the repair was therefore open and obvious. West, 469 Mich at 183. An unreasonably dangerous hazard "must be more than theoretically or retrospectively dangerous, because even the most unassuming situation can often be dangerous under the wrong set of circumstances." Hoffner, 492 Mich at 472. Moreover, even accepting the evidence in Ziemba's report as true, that the repair should have been made with a cement product rather than caulk because of the size of the crack, the report does not alter our conclusion. Plaintiff concedes that Ziemba's legal conclusion that the sealant upon which plaintiff tripped was unreasonably dangerous was improper and objectionable. See Keywell and Rosenfeld v Bithell, 254 Mich.App. 300, 338; 657 N.W.2d 759 (2002). Similarly, Ziemba's conclusions that the hazard was not "cognizable, detectable, or observable upon casual inspection by ordinary citizens" also was improper because Ziemba had no "specialized knowledge" of the hazard that would place him in a superior position to the trial court to determine whether the legal criteria for openness and obviousness had been satisfied. Id. And nothing in Ziemba's report, even viewed in the light most favorable to the plaintiff, created a genuine issue of material fact regarding the open and obvious nature of the hazard, so as to prevent the trial court from deciding the issue as a matter of law. Hoffner, 492 Mich at 476. Our conclusion to uphold the trial court's determination is therefore not altered by Ziemba's report.
Finally, the fact and severity of plaintiff's injury is "immaterial to whether an open and obvious danger [was] . . . unreasonably dangerous." Lugo, 464 Mich at 518 n 2. Defendant simply did not have a duty to protect plaintiff from this open and obvious condition. Id. Accordingly, summary disposition was proper under MCR 2.116(C)(10) because there is no genuine issue of material fact regarding whether the condition at issue was open and obvious, and defendant is entitled to judgment as a matter of law. Latham, 480 Mich at 111; West, 469 Mich at 183.
GLEICHER, J. (concurring).
I concur with the majority only because Riddle v McLouth Steel Prod Corp, 440 Mich. 85, 95; 485 N.W.2d 676 (1992), and its progeny compel me to do so. This case exemplifies the juridical contradictions inherent in our state's "open and obvious" jurisprudence, precipitating this separate opinion.
Viewed in the light most favorable to Dorsey, defendant negligently created a dangerous condition by repairing a sidewalk joint with an inappropriate material that appeared solid, but gave way under the weight of a foot. On the other hand, as the majority accurately observes, "a reasonably prudent person would be aware that joints, cracks, or other uneven areas of a sidewalk can present a tripping hazard." A jury could easily find that both parties were negligent. Given that we live in a comparative negligence world, why does Dorsey's negligence bar her recovery while the negligence of defendant is excused?
Our Supreme Court long ago banished the notion that under the common law, an injured person's contributory fault should eliminate a fair allocation of tort liability. See Placek v Sterling Hts, 405 Mich. 638; 275 N.W.2d 511 (1979). Under a comparative fault regime, the trier of fact determines the relative degree of the parties' negligence. In a case like this, the calculus would certainly include the obviousness of the danger and its visibility. So why does an open and obvious danger absolve a negligent landowner from any liability by negating the landowner's duty to keep its premises in reasonable repair? And lest there be any confusion regarding a landowner's duty, the Supreme Court has repeatedly elucidated that a landowner owes to an invitee such as Dorsey an "obligation to also make the premises safe, which requires the landowner to inspect the premises and depending upon the circumstances, make any necessary repairs or warn of any discovered hazards." Stitt v Holland Abundant Life Fellowship, 462 Mich. 591, 597; 614 N.W.2d 88 (2000).
In Riddle, 440 Mich at 99, the Supreme Court adopted a duty-based open and obvious danger defense. In reaching this result, the Court appropriated the analysis of the Illinois Supreme Court in Ward v K Mart Corp, 136 Ill.2d 132; 554 N.E.2d 223 (1990), rejecting that "the adoption of comparative negligence . . . has affected the basic duty a landowner or occupier owes to entrant upon his land" with respect to open and obvious conditions.
First, in countless cases involving whether a particular condition is open and obvious, Michigan courts have applied the test applicable in all negligence case—the reasonable person standard. In Novotney v Burger King (On Remand), 198 Mich.App. 470, 475; 499 N.W.2d 379 (1993), we engrafted that standard on a court's determination of whether a condition is open and obvious: "Would an average user with ordinary intelligence have been able to discover the danger and the risk presented upon casual inspection?" The Novotney formulation is ubiquitous in our premises liability caselaw.
The second post-Riddle development concerns comparative fault. When the Supreme Court decided Riddle, comparative fault was solely a creature of the common law that had been embraced in Placek. But that changed in 1995 when our Legislature adopted MCL 600.2958, explicitly enshrining the doctrine of comparative fault in all tort actions:
The Legislature carved out no exception for premises liability claims despite its awareness of Riddle.
The clear and express language of MCL 600.2958 prohibits a court from barring a plaintiff's recovery based on her comparative fault. But as the majority's opinion in this case vividly demonstrates, applying the open and obvious danger doctrine violates this prohibition. Because her conduct fell below that of a "reasonably prudent person," Dorsey may not recover— despite that defendant was concurrently negligent, and arguably more negligent than Dorsey. Even if a plaintiff cautiously approaches a negligently created or permitted danger and attempts to avoid it, she may not recover. This result simply cannot be reconciled with MCL 600.2958. "It is anomalous to find that a defendant has a duty to provide reasonably safe premises and at the same time deny a plaintiff recovery from a breach of that same duty." Tharp v Bunge Corp, 641 So.2d 20, 25 (Miss, 1994). I would hold that the open and obvious danger defense is incompatible with our Legislature's pronouncement that comparative negligence controls.
Finally, the "no duty" rule inherent with Michigan's open and obvious jurisprudence is a relic from foregone era. See James, Tort Liability of Occupiers of Land: Duties Owed to Licensees and Invitees, 63 Yale L J 605, 628 (1954); Keeton, Personal Injuries Resulting From Open and Obvious Conditions, 100 U Pa L Rev 629, 642 (1952). A number of courts have recognized that comparative negligence principles apply in premises liability disputes as well as all other tort cases. See Carter v Bullitt Host, LLC, 471 S.W.3d 288 (Ky, 2015); Steigman v Outrigger Enterprises, Inc, 126 Haw. 133; 267 P.3d 1238 (2011); Foster v Costco Wholesale Corp, 128 Nev. 773, 781-782; 291 P.3d 150 (2012); Tharp v Bunge Corp, 641 So.2d 20 (Miss, 1994). But until our Supreme Court says otherwise, negligent landowners are graced with judicially created immunity and plaintiffs such as Dorsey must be denied recovery, regardless of the Legislature's clearly expressed contrary view.