Opinion
No. 350953
01-14-2021
KRISTINE SCIARROTTA-HAMEL, Plaintiff-Appellee, v. CITY OF DEARBORN, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC No. 18-005572-NO Before: LETICA, P.J., and GLEICHER and O'BRIEN, JJ. O'BRIEN, J. (concurring in part and dissenting in part).
I take no issue with the majority's conclusions with respect to the two-inch rule and notice, but I would conclude that the two-inch or more height differential between the sidewalk slabs that caused plaintiff to fall was open and obvious. I therefore respectfully dissent to that portion of the majority opinion.
At her deposition, plaintiff testified that she did not see the defect in the sidewalk before she fell because she was looking ahead and was not looking at the ground. Craig Carpenter, who was walking with plaintiff when she fell, similarly testified that he and plaintiff were talking while they walked, and that he did not notice the defect because he was looking ahead. Plaintiff testified that she never looked at the sidewalk after she fell, and Carpenter testified that he did not look at the sidewalk until the day after plaintiff's fall when he went back to the sidewalk and "[s]aw that the sidewalk had been raised," meaning one slab was higher than the other slab. Neither testified at their depositions that they did not see the defect in the sidewalk because it was hidden or concealed by darkness.
After their depositions, Carpenter and plaintiff each submitted an affidavit in which they averred, "At the time of [plaintiff's] fall, there was no street, ambient or artificial lighting on Olmstead to illuminate the sidewalk," and that they did not see the defect in the sidewalk because "[t]he lack of natural, ambient or artificial light effectively hid or concealed the vertical discontinuity from detection." Carpenter and plaintiff's averments in their affidavits that the lack of light is why they did not see the defect in the sidewalk contradicts their deposition testimony that they did not see the defect because they were looking ahead instead of at the ground. "It is well settled that a party may not create an issue of fact by submitting an affidavit that contradicts prior deposition testimony." Atkinson v City of Detroit, 222 Mich App 7, 11; 564 NW2d 473 (1997).
On this record, I would conclude that the two-inch or more height differential between the slabs of the sidewalk was open and obvious. As the majority notes, "Whether a danger is open and obvious depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection." Hoffner v Lanctoe, 492 Mich 450, 461; 821 NW2d 88 (2012). The test is objective, so "the inquiry is whether a reasonable person in the plaintiff's position would have foreseen the danger, not whether the particular plaintiff knew or should have known that the condition was hazardous." Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 479; 760 NW2d 287 (2008). Photos of the height differential between the slabs show that height difference was quite large, and, in my opinion, reasonable minds could not differ that an average person with ordinary intelligence walking on the sidewalk would have discovered the height differential upon casual inspection. Plaintiff and Carpenter each testified that they did not see the height differential because they were looking ahead instead of at the ground, and neither testified that darkness precluded them from observing the condition had they looked. On these facts, I would conclude that the height differential between the sidewalk slabs that caused plaintiff to fall was open and obvious. See Buhl v City of Oak Park, 329 Mich App 486, 522; 942 NW2d 667 (2019) (holding that a defect in a sidewalk was open and obvious because the plaintiff "testified that nothing was obscuring her view and that she did not discern the differing heights only because she was looking at the store rather than the ground," not because anything "precluded her from being able to see the condition if she had looked").
The majority concludes that there is a question of fact whether the defect in the sidewalk was open and obvious based on (1) the testimony of Douglas Derr and defendant's inspectors that they never discovered the defect and (2) the affidavit of plaintiff's expert, Steve Ziemba. I do not believe that either source of evidence supports the majority's conclusion.
First addressing the testimony of Derr and defendant's inspectors, they all testified that, before plaintiff's fall, they would drive through the neighborhood where plaintiff fell looking for obvious defects in the sidewalks, but never saw the defect that caused plaintiff to fall. Based on this, the majority concludes that "it is reasonable to presume that, had the sidewalk defect been open and obvious, either the inspectors or Derr would have discovered it." Yet whether a condition is open and obvious depends on "whether a reasonable person in the plaintiff's position would have foreseen the danger[.]" Slaughter, 281 Mich App at 479 (emphasis added). People driving on the road next to a sidewalk, even if looking at the sidewalk, are obviously in a different position than a person walking on the sidewalk—the person driving is significantly less able to perceive the condition of the sidewalk than someone walking on it. In my view, evidence that people driving on a road next to a sidewalk failed to discover a defect in the sidewalk is not probative of whether the defect would have been open and obvious to a person walking on the sidewalk, and therefore does not create a question of fact whether the defect was open and obvious.
Next addressing Ziemba's affidavit, the majority concludes that it creates a question of fact because "Ziemba, plaintiff's expert, testified that plaintiff and Carpenter would not have been able to identify the defect walking in near darkness." This is presumably based on Ziemba's stand-alone statement:
The exposed face of the raised slab is jagged with sharp edges, sufficient to grab or catch the tip of one's shoe causing one to trip. This creates a dangerous condition which would not be seen by plaintiff or her friend as they walked in the near dark evening hours. [Emphasis added.]I disagree with the majority's characterization of this statement as Ziemba stating that plaintiff and Carpenter were "walking in near darkness," and I further disagree with the majority's later characterization of this statement as Ziemba "attest[ing] that the hazardous condition, the defective sidewalk panel, was concealed by the lack of natural lighting or streetlights." I respectfully suggest that Ziemba's mention of "the near dark evening hours" is a clear reference to the time at which plaintiff and Carpenter were walking, not a testament to how darkness impeded plaintiff's ability to see the defect at that time. Indeed, it is unclear how Ziemba could have opined about how dark it was when plaintiff fell or how that darkness may have impaired a person's vision. The only evidence that Ziemba reviewed about the conditions at the time of plaintiff's fall were the depositions of plaintiff and Carpenter. In those depositions, Carpenter testified that plaintiff fell between 8:30 and 9 o'clock and, when asked if it was light out, responded that "[i]t was dusk," and plaintiff agreed with Carpenter's testimony. Nothing in those statements suggest that plaintiff and Carpenter were "walking in near darkness" or that the hazardous condition was hidden by a lack of light, but they do suggest that the time the two were walking was "in the near dark evening hours," which is what Ziemba stated.
This latter statement seems to conflate Ziemba's opinion with statements made by plaintiff and Carpenter after Ziemba formed his opinion. After plaintiff and Carpenter testified at their depositions, they signed affidavits in which they each averred, "At the time of [plaintiff's] fall, there was no street, ambient or artificial lighting on Olmstead to illuminate the sidewalk." Ziemba did not review those affidavits when he formed his opinion, however, because they were signed on September 16, 2019—four days after Ziemba signed his affidavit. Moreover, Ziemba in his affidavit listed the materials that he reviewed to form his opinion, and plaintiff's and Carpenter's affidavits were not listed. In the materials that Ziemba did review, neither plaintiff nor Carpenter mentioned that their vision was impeded by a lack of light at the time plaintiff fell.
The trial court appeared to also interpret Ziemba's statement as attesting to the time at which plaintiff and Carpenter were walking; the court stated that "plaintiff's liability expert[] opined that the dangerous condition caused by the raised slab would not have been seen by the plaintiff or Mr. Carpenter as they walked in the evening hours." (Emphasis added.)
Thus, I do not read Ziemba's affidavit as "attest[ing] that the hazardous condition . . . was concealed by the lack of natural lighting or streetlights," and I do not believe that there is any evidence in the record to support such a conclusion. The evidence only supports that plaintiff and Carpenter were walking in the evening hours. This in turn does not, by itself, support an inference that the defect in the sidewalk was obscured by a lack of light. Without any evidence that a lack of light impaired plaintiff's ability to see the defect in the sidewalk, the height differential between the slabs of the sidewalk was open and obvious for the reasons explained above.
Even assuming that the majority is correct in its construing of Ziemba's statement, I would conclude that Ziemba's single sentence in his affidavit would not create a genuine issue of fact as to whether the defect in the sidewalk was open and obvious; the sentence was a single conclusory allegation and was devoid of detail that would permit the conclusion that the defect in the sidewalk was such that an average person with ordinary intelligence would not have discovered it upon casual inspection. Accord Quinto v Cross & Peters Co, 451 Mich 358, 371-372; 547 NW2d 314 (1996) ("Plaintiff's affidavit did not satisfy her burden as the opposing party; rather, it constituted mere conclusory allegations and was devoid of detail that would permit the conclusion that there was such conduct or communication of a type or severity that a reasonable person could find that a hostile work environment existed.").
A premises possessor may nevertheless be liable for an open and obvious condition if the condition was unreasonably dangerous or effectively unavoidable. Hoffner, 492 Mich at 463. Clearly, the defect in this case was neither. A two-inch height differential between sidewalk slabs is an everyday occurrence that does not "impose an unreasonably high risk of severe harm," Lugo v Ameritech Corp, Inc, 464 Mich 512, 518; 629 NW2d 384 (2001), sufficient to render the condition unreasonably dangerous, see Weakley v City of Dearborn Hts, 240 Mich App 382, 385-387; 612 NW2d 428, 431 (2000), remanded on other grounds 463 Mich 980 (2001) (holding that "uneven pavement" did not present an unreasonable risk of harm). Likewise, the defect in the sidewalk was not effectively unavoidable as plaintiff could have walked around the defect, walked on the sidewalk across the street, or taken a different route. See Hoffner, 492 Mich at 469 (explaining that "the standard for 'effective unavoidability' is that a person, for all practical purposes, must be required or compelled to confront a dangerous hazard"). Thus, the open-and-obvious defect in the sidewalk did not have any special aspects that would otherwise render defendant liable.
For these reasons, I respectfully dissent to the majority's holding that there is a question of fact whether the defect in the sidewalk was open and obvious.
/s/ Colleen A. O'Brien