Opinion
Docket No. 317625.
12-16-2014
JAHNKE v. ALLEN.
Bleakley Law Offices, PC, Muskegon (by Berton K. May ), for plaintiff. Plunkett Cooney (by Jeffrey C. Gerish, Bloomfield Hills and Matthew T. Thompkins) for defendant.
Bleakley Law Offices, PC, Muskegon (by Berton K. May ), for plaintiff.
Plunkett Cooney (by Jeffrey C. Gerish, Bloomfield Hills and Matthew T. Thompkins) for defendant.
Before: MARKEY, P.J., and SAWYER and OWENS, JJ.
Opinion
PER CURIAM.Plaintiff appeals the May 24, 2013 order granting defendant's motion for summary disposition under MCR 2.116(C)(10) in this civil dispute involving plaintiff's fall and subsequent injury while walking arm-in-arm with defendant on defendant's property. We affirm.
Since April of 2009, plaintiff has resided with her fiancé, Randy Bates, in a mobile home adjacent to defendant's home, and defendant has been plaintiff's landlord. Defendant and plaintiff are good friends who socialize regularly. In June or early July of 2010, defendant began a landscaping project at his home with the help of plaintiff, Bates, and plaintiff's son. In early July 2010, plaintiff and defendant socialized on defendant's porch from where the construction was visible.
On July 17, 2010, plaintiff and defendant were socializing at plaintiff's home. At approximately 11:30 p.m., plaintiff was informed that defendant, who suffers from hydrocephalus, was having a dizzy spell. Plaintiff took defendant by the arm and walked arm-in-arm with him from plaintiff's garage toward defendant's garage. Bates walked behind plaintiff and defendant. As plaintiff and defendant rounded the corner of defendant's garage, plaintiff's right foot slipped off the edge of the concrete pavers, where some had been removed as part of the construction, and she fell. Plaintiff fell onto her right shoulder. Defendant fell on top of plaintiff because she pulled him down with her as she fell. The area where plaintiff fell was not lit by the mercury light on defendant's garage, the motion-detector light above the garage door, or ambient light.
Plaintiff brought an action against defendant alleging negligence. Defendant filed a motion for summary disposition, asserting that plaintiff's claim was barred by the open and obvious danger doctrine because the case sounded in premises liability. The trial court granted defendant's motion. This appeal followed. The primary issue on appeal is whether plaintiff's claim sounds in premises liability or in ordinary negligence.
This Court “review[s] de novo a trial court's ruling on a motion for summary disposition.” Watts v. Mich. Multi–King, Inc., 291 Mich.App. 98, 102, 804 N.W.2d 569 (2010). “In considering a motion pursuant to MCR 2.116(C)(10), a court considers affidavits, pleadings, depositions, admissions, and other documentary evidence submitted by the parties in a light most favorable to the nonmoving party.” Id. “Where the proffered evidence fails to establish a genuine issue of material fact, the moving party is entitled to judgment as a matter of law.” Id. “The trial court cannot grant the defendant's motion unless it is impossible to support the plaintiff's claim at trial because of some deficiency that cannot be overcome.” Lichon v. American Universal Ins. Co., 435 Mich. 408, 414, 459 N.W.2d 288 (1990).
“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 N.W.2d 254 (2012). Plaintiff asserts that the trial court's review of her complaint was flawed because the complaint stated “COUNT I—NEGLIGENCE” and not “Premises Liability.” However, plaintiff's argument provides little guidance on whether this is a premises liability claim or an ordinary negligence claim because “[i]t 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 N.W.2d 399 (2007). Additionally, “[c]ourts are not bound by the labels that parties attach to their claims.” Buhalis, 296 Mich.App. at 691, 822 N.W.2d 254.
In a premises liability action, “liability arises solely from the defendant's duty as an owner, possessor, or occupier of land.” Id. at 692, 822 N.W.2d 254. “Terms such as ‘premises possessor’ and ‘dangerous condition on the land’ relate to the elements of a premises liability, rather than ordinary negligence, claim.” Wheeler v. Central Mich. Inns, Inc., 292 Mich.App. 300, 304, 807 N.W.2d 909 (2011). The duty owed in a premises liability case is that “the landowner simply owes the licensee a duty to warn of unreasonably dangerous conditions, when the licensee neither knows nor has reason to know of the condition and the risk involved.” Burnett v. Bruner, 247 Mich.App. 365, 372, 636 N.W.2d 773 (2001). Whereas, the duty owed in a general negligence claim is that “every person who engages in the performance of an undertaking has an obligation to use due care or to act so as not to unreasonably endanger the person or property of another.” Schenk v. Mercury Marine Div., Lowe Indus., 155 Mich.App. 20, 25, 399 N.W.2d 428 (1986). Additionally, alleging that defendant created the condition “does not transform the claim into one for ordinary negligence.” Buhalis, 296 Mich.App. at 692, 822 N.W.2d 254. An action in premises liability, however, “does not preclude a separate claim grounded on an independent theory of liability based on the defendant's conduct....” Laier v. Kitchen, 266 Mich.App. 482, 493, 702 N.W.2d 199 (2005).Plaintiff argued in the trial court and on appeal that this case sounds in ordinary negligence and should not have been dismissed because defendant was negligent in how he escorted plaintiff across the property. We disagree. Here, plaintiff's injury occurred because of a condition on the land, the removed concrete pavers, rather than defendant's conduct. While defendant may have created the condition on the land, that does not transform the premises liability action into one alleging ordinary negligence. See Buhalis, 296 Mich.App. at 692, 822 N.W.2d 254. A plaintiff cannot avoid the open and obvious danger doctrine by claiming ordinary negligence, when the facts only support a premises liability claim, as they do here. Therefore, the action sounded in premises liability and not ordinary negligence, and the trial court did not err by granting defendant's motion for summary disposition because the open and obvious danger doctrine bars plaintiff's claim. Moreover, the trial court did not err by denying plaintiff the opportunity to amend her complaint, because the proposed amendment was just another futile attempt to classify this case as one of general negligence rather than one of premises liability.
Affirmed. Defendant may tax costs.
MARKEY, P.J., and SAWYER and OWENS, JJ., concurred.