Opinion
No. 348689
06-18-2020
TERESA SCHMIDT, Plaintiff-Appellant, v. THOMAS W. CLAYCOMB and NADINE J. CLAYCOMB, Defendants-Appellees.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court
LC No. 2018-165117-NI Before: MURRAY, C.J., and JANSEN and MARKEY, JJ. PER CURIAM.
In this premises liability action, plaintiff, Teresa Schmidt, appeals by leave granted an order denying defendants', Thomas and Nadine Claycomb, motion for summary disposition. We affirm.
Schmidt v Claycomb, unpublished order of the Court of Appeals, entered May 10, 2019 (Docket No. 348689).
I. BACKGROUND
On November 22, 2017, plaintiff was delivering a plant to defendants' home at approximately 6:10 p.m. Thomas was in his garage, and he was unsure whether he and his wife had ordered a plant. Thomas walked into the garage, toward a door that led into their house, and plaintiff followed. There was a light on in the garage, and a light on inside the house, which could be seen from a window to the left of the garage. However, when Thomas opened the door for plaintiff, plaintiff observed that it was "black" inside, and she did not see that immediately inside the door were stairs that led to defendants' basement. Plaintiff took one step inside the house, and saw a ledge to the left where she attempted to set the plant. Plaintiff then took a second step, her "feet disappeared" beneath her, and she fell down the basement stairs. Plaintiff suffered injuries as a result of the fall.
Plaintiff filed a complaint against defendants alleging negligence and premises liability. Defendants filed a motion for summary disposition, arguing that any danger the steps posed was open and obvious. The trial court denied defendants' motion, finding that, while the danger of the stairs was open and obvious, there was a question of fact as to whether the "circumstances" under which plaintiff fell, alluding to special aspects, including the poor lighting, made the stairs unreasonably dangerous. This appeal followed.
II. STANDARD OF REVIEW
"This Court generally reviews de novo a trial court's ruling on summary disposition motions." Bennett v Russell, 322 Mich App 638, 642; 913 NW2d 364 (2018). "A motion under MCR 2.116(C)(10) . . . tests the factual sufficiency of a claim." El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665 (2019). "A motion brought under MCR 2.116(C)(10) may only be granted when there is no genuine issue of material fact." Id. "A genuine issue of material fact exists when the record leaves open an issue upon which reasonable minds might differ." Id. (citation and quotation marks omitted). In making a decision on a motion for summary disposition under MCR 2.116(C)(10), the trial court considers "the affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties . . . ." Bennett, 322 Mich App at 642 (citation and quotation marks omitted). This Court, reviewing a motion under MCR 2.116(C)(10), considers "[t]he relative strength of the evidence offered by plaintiff and defendants . . . ." El-Khalil, 504 Mich at 162.
The party bringing the motion for summary disposition has the initial burden of supporting its motion with affidavits, depositions, admissions or other documentary evidence. Sprague v Farmers Ins Exch, 251 Mich App 260, 264; 650 NW2d 374 (2002). The burden then shifts to the party opposing the motion, who must then establish that a genuine issue of material fact exists, and the opposing party must go beyond mere allegations or denials of the pleadings, and establish specific facts demonstrating a triable issue of fact. Id. "If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted." Id.
III. ANALYSIS
Although the trial court properly denied defendants' motion for summary disposition, plaintiff argues on appeal that the trial court erred in determining there was no question of material fact regarding whether the stairs to defendants' basement were an open and obvious danger. We agree.
"[A]n appellate court may uphold a lower tribunal's decision that reached the correct result, even if for an incorrect reason." Klooster v City of Charlevoix, 488 Mich 289, 310; 795 NW2d 578 (2011).
"In a premises liability action, a plaintiff must prove the elements of negligence: (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff's injury, and (4) the plaintiff suffered damages." Buhalis v Trinity Continuing Care Services, 296 Mich App 685, 693; 822 NW2d 254 (2012) (citation and quotation marks omitted).
"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 Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001), citing Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185 (1995). However, this duty to exercise reasonable care to protect an invitee does not extend to dangers on a premises that are open and obvious. "A condition is open and obvious when an average person of ordinary intelligence would discover the danger and risk it presented on casual inspection." Buhl v Oak Park, ___ Mich App ___, ___; ___ NW2d ___ (2019) (Docket No. 340359); slip op at 14 (citation and quotations marks omitted). Further, "[t]his is an objective test." Id. In Lugo, our Supreme Court held:
[W]here the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, an invitor owes no duty to protect or warn the invitee unless he should anticipate the harm despite knowledge of it on behalf of the invitee. [Lugo, 464 Mich at 516, quoting Riddle v McLouth Steel Products Corp, 440 Mich 85, 96; 485 NW2d 676 (1992).]
Plaintiff argues that the danger posed by the stairs was not open and obvious because an average person of ordinary intelligence would not have known, or had reason to know, in the dark, that the stairs existed. Plaintiff cites Blackwell v Franchi, 318 Mich App 573; 899 NW2d 415 (2017), remanded on other grounds 502 Mich 918 (2018), for the assertion that an unlit change in elevation is not an open and obvious condition.
In Blackwell, the plaintiff was visiting the home a friend when she walked into the mudroom, which was unlit, and fell on an 8 inch drop into the mudroom. Blackwell, 318 Mich App at 574. Several other individuals who were present at the defendants' house that evening testified that it was dark in the mudroom and they could not notice the drop off, although they offered conflicting testimony regarding whether the light in the hallway next to the mudroom was on. Blackwell, 318 Mich App at 577-578. This Court reversed the grant of the defendants' motion for summary disposition, concluding that there was a genuine issue of material fact on the basis of witness testimony regarding the 8 inch drop and whether the plaintiff would have been able to notice the drop off upon casual inspection. Id. at 579. Although this Court noted that, as a general rule, a drop-off, like a step, is open and obvious, the plaintiff argued that the danger arose because she could not see the step in the poor lighting. Id. at 576-578. This Court held that a genuine issue of material fact existed as to whether the drop-off was noticeable upon casual inspection. Id. at 578.
On appeal to our Supreme Court, which did not "disturb" this Court's determination as to the open and obvious nature of the condition, the Supreme Court remanded the case for this Court to determine whether the defendants had a duty to warn the plaintiff of the condition. Blackwell v Franchi, 502 Mich 918 (2018). On remand, this Court held that "reasonable persons could disagree on whether the alleged condition, i.e., the nonvisible change in floor level, presented an unreasonable risk of harm, whether plaintiff knew or had reason to know of the condition and the risk involved, and whether defendants should have expected that plaintiff would not have discovered the hazard before falling victim to it." Blackwell v Franchi (On Remand), 327 Mich App 354, 357; 933 NW2d 762 (2019).
Blackwell is similar to the present case; both cases involve a fall as a result of an unseen change in elevation in a dark room. In Blackwell, the step over which the plaintiff fell was located in a dark, unlit room. Here, plaintiff fell down the stairs after encountering them in an area of defendants' home that was in total darkness. Additionally, in both cases, witnesses offered differing testimony as to the amount of light present in the area where the change in elevation occurred.
It is generally settled law that a step, stairs, or a drop-off, are considered open and obvious conditions. Blackwell, 318 Mich App at 577-579. However, as in Blackwell, the poor lighting in defendants' home gives rise to "a genuine issue of material fact . . . as to whether the [stairs were] noticeable upon a casual inspection," id. at 578, or whether defendants had a duty to warn plaintiff of or protect plaintiff from the stairs. Accordingly, we conclude that whether an average person of ordinary intelligence would have discovered the risk presented upon casual inspection presents a question of fact for a jury. Indeed, "reasonable persons could disagree on whether the alleged condition, i.e., the nonvisible change in floor level, presented an unreasonable risk of harm, whether plaintiff knew or had reason to know of the condition and the risk involved, and whether defendants should have expected that plaintiff would not have discovered the hazard before falling victim to it." Blackwell (On Remand), 327 Mich App at 357.
Affirmed.
/s/ Christopher M. Murray
/s/ Kathleen Jansen
/s/ Jane E. Markey