Opinion
No. 339447
07-24-2018
MIDA MHOON, Plaintiff-Appellant, v. W. A. FOOTE MEMORIAL HOSPITAL, doing business as HENRY FORD ALLEGIANCE HEALTH HOSPITAL, Defendant-Appellee.
UNPUBLISHED Jackson Circuit Court
LC No. 16-002971-NO Before: STEPHENS, P.J., and SHAPIRO and GADOLA, JJ. PER CURIAM.
In this premises liability action, plaintiff, Mida Mhoon, appeals the trial court's order granting defendant W. A. Foote Memorial Hospital's motion for summary disposition under MCR 2.116(C)(10). For the reasons set forth below, we affirm.
On November 18, 2013, at about 9:00 or 9:30 a.m., plaintiff drove to the hospital to visit a friend. Upon arrival, she parked in front of the sidewalk and walked through the parking lot to the hospital entrance. Plaintiff left the hospital a few hours later, and walked down the sidewalk to her car. When plaintiff began to step down from the sidewalk to the parking lot, her foot got caught on a small curb lip caused by a slight height difference between the curb and the adjoining sidewalk. Plaintiff tripped and fell into the parking lot, and sustained injuries.
Plaintiff brought a premises liability action against defendant, and defendant moved for summary disposition. After a hearing on the matter, the trial court granted defendant's motion on the ground that the elevated curb was open and obvious. Plaintiff now appeals.
"A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) when the affidavits or other documentary evidence, viewed in the light most favorable to the nonmoving party, show that there is no genuine issue as to any material fact and the moving party is therefore entitled to judgment as a matter of law." Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 5; 890 NW2d 344 (2016). "This Court reviews de novo a trial court's decision on a motion for summary disposition." Allen v Bloomfield Hills Sch Dist, 281 Mich App 49, 52; 760 NW2d 811 (2008).
A premises owner has no duty to protect invitees from open and obvious dangers. Lugo v Ameritech Corp, 464 Mich 512, 517; 629 NW2d 384 (2001). "The test for an open and obvious danger is whether an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection." Abke v Vandenberg, 239 Mich App 359, 361-362; 608 NW2d 73 (2000) (quotation marks and citation omitted; alteration in original). "This is an objective standard, calling for an examination of the objective nature of the condition of the premises at issue." Hoffner v Lanctoe, 492 Mich 450, 461; 821 NW2d 88 (2012) (quotation marks and citation omitted).
As an exception to the open and obvious doctrine, a landowner may incur liability when special aspects of a condition make an open and obvious risk unreasonable. Id. A special aspect exists when the hazard presents an unreasonably high risk of injury or the danger is effectively unavoidable. Id. at 463. The Michigan Supreme Court has stated that "the danger of tripping and falling on a step is generally open and obvious . . . ." Bertrand v Alan Ford, Inc, 449 Mich 606, 614; 537 NW2d 185 (1995). The Court explained, "[B]ecause steps are the type of everyday occurrence that people encounter, under most circumstances, a reasonably prudent person will look where he is going, will observe the steps, and will take appropriate care for his own safety." Id. at 616. The failure of a particular plaintiff to see a step does not mean the condition is not open and obvious. Id. 621.
To provide an example of a hazard that presents an unreasonably high risk of injury, the Michigan Supreme Court presented a hypothetical scenario of a 30-foot pit, and explained that the situation would pose "a substantial risk of death or severe injury to one who fell in the pit . . . ." Lugo, 464 Mich at 518. The Court also provided a hypothetical scenario to demonstrate when a hazard was effectively unavoidable:
[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. [Id.]
Plaintiff argues that the height difference was not open and obvious because: (1) she could not see the condition although she was looking where she was walking as she walked to the curb, and (2) the difference in height between the curb and sidewalk was so minimal that the sidewalk and curb appeared to be level, and she could only see the condition after, not before, encountering it.
Plaintiff's first claim fails because Michigan caselaw presumes that a reasonably prudent person would see the height difference between the curb and the sidewalk and step over it. Bertrand v Alan Ford, Inc, 449 Mich at 616. Thus, plaintiff's argument does not establish that the trial court erred in concluding that the elevated curb was open and obvious.
Plaintiff's second argument—that the difference in height between the sidewalk and curb was so minimal that the curb and sidewalk appeared to be level, and as such, the height difference was not open and obvious—also fails. In support of her argument, plaintiff points out that she was unable to see the condition before she encountered the curb but that she was able to see it after she was aware of its presence. Plaintiff's argument lacks merit. In Jahnke v Allen, 308 Mich App 472, 473-474; 865 NW2d 49 (2014), the plaintiff slipped at night in an unlit area of the walkway and presumably, could not see the missing paving stones in those conditions. Nonetheless, we concluded that the missing pavers were open and obvious. Id. at 476. Therefore, the trial court properly concluded that the elevated curb was open and obvious, and defendant was entitled to summary disposition.
Plaintiff next argues that there were special aspects of the elevated curb that removed the curb from the open and obvious doctrine. However, plaintiff cannot establish that the condition created an unreasonable risk of harm or was effectively unavoidable. While we agree with plaintiff that the injuries she incurred, a broken wrist, a torn shoulder ligament, and various contusions, are significant, we are bound by caselaw that a fall from a walking position does not create an unreasonable risk of harm. See Cory v Davenport College of Business (On Remand), 251 Mich App 1, 7; 649 NW2d 392 (2002) (holding that "it cannot be expected that a typical person falling a distance of several feet would suffer severe injury or a substantial risk of death.").
Additionally, the elevated curb was not effectively unavoidable. Plaintiff argues that it is not possible to enter the parking lot or the sidewalk without passing over the curb. However, plaintiff did not need to pass over the curb to go from her car to the hospital or to return to her car. Plaintiff testified that on the morning of the incident, she walked through the parking lot to the main entrance, and upon leaving the hospital, she took a different route back, which put her in contact with the curb. Thus, the elevated curb was not effectively unavoidable.
Accordingly, we conclude that no special aspects existed to remove the elevated curb from falling under the open and obvious doctrine, and as such, defendant's motion for summary disposition was properly granted.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Douglas B. Shapiro
/s/ Michael F. Gadola