Opinion
No. 335523
10-10-2017
SHELLEY SHIPLEY, Plaintiff-Appellant, v. KMART CORPORATION, Defendant-Appellee.
UNPUBLISHED Calhoun Circuit Court
LC No. 16-000199-NO Before: TALBOT, C.J., and O'CONNELL and O'BRIEN, JJ. PER CURIAM.
Plaintiff, Shelley Shipley, appeals as of right the trial court's grant of summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact) in favor of defendant, Kmart Corporation. We affirm.
I. BACKGROUND
Shipley went to Kmart and walked over to a corral in the parking lot to get a shopping cart. Her foot caught on a raised piece of metal, and she fell. When she was lying on the ground trying to figure out how she fell, she saw that the metal strip at the front of the shopping cart corral was raised at least one inch on one side. The store manager, Dennis Farmer, went outside to talk to Shipley about the fall. He saw that the metal plate on the left side of the strip was creased up. Shipley suffered injuries to both shoulders and broke her toe.
Shipley filed a complaint against Kmart, bringing a negligence claim against Kmart for failing to warn customers about the hazard, inspect the premises, and remove the hazard. Kmart moved for summary disposition under MCR 2.116(C)(10). The trial court granted Kmart's motion for summary disposition because the raised metal part was open and obvious and an average person would have seen it and stepped over it.
II. STANDARD OF REVIEW
We review a trial court's grant of summary disposition de novo. Price v Kroger Co of Mich, 284 Mich App 496, 499; 773 NW2d 739 (2009). Summary disposition under MCR 2.116(C)(10) is proper if no genuine issue of material fact exists. Id. at 499. This Court considers all of the record evidence, viewing it in the light most favorable to the nonmoving party. Id. at 499-500.
III. ANALYSIS
Shipley argues that the trial court erred in granting Kmart's motion for summary disposition because the raised metal plate was not open and obvious. We disagree.
The possessor of a premises has a duty to use reasonable care to protect invitees from a dangerous condition that carries an unreasonable risk of harm. Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). That duty does not extend to "open and obvious dangers" unless they have "special aspects" that make the condition unreasonably dangerous or unavoidable. Id. at 516-519. A condition is open and obvious if an average person of ordinary intelligence could have discovered the risk from a casual inspection. Novotney v Burger King Corp (On Remand), 198 Mich App 470, 474-475; 499 NW2d 379 (1993). To evaluate the danger, this Court should consider the condition objectively rather than examine the degree of care plaintiff used. Lugo, 464 Mich at 523-524.
In this case, the evidence shows that a raised section of the metal strip would also have been visible to an average person casually inspecting the area. Both Shipley and Farmer saw the raised plate. Shipley described the metal strip as three feet long and a couple inches wide and the raised part as at least one inch off the ground. Shipley saw the plate when she was on the ground after she fell, but gave no explanation for why she did not see it earlier. Thus, the trial court did not err by concluding that the hazard was open and obvious and no genuine issue of fact remained.
Shipley's arguments to the contrary lack merit. Shipley's reliance on Price, 284 Mich App 496, and Quinto v Woodward Detroit CVS, LLC, 305 Mich App 73; 850 NW2d 642 (2014), to argue that an unexpected defect is not open and obvious is unavailing. In Price, 284 Mich App at 501-502, the Court determined that a one-inch piece of wire protruding from the bottom of a bin was not open and obvious because the candy filling the bin obstructed the wire from view. In Quinto, the Court held that the low display platform left on the floor was open and obvious. Quinto, 305 Mich App at 74-75. In Kennedy, 274 Mich App at 713-714, the Court concluded that the danger posed by crushed green grapes or their residue was open and obvious, particularly because the plaintiff testified that he, the manager, another employee, and other customers saw the grapes.
Shipley distills from these cases that unexpected hazards are not open and obvious. Shipley is incorrect. The hazard in Price was hidden; the hazards in Quinto and Kennedy were not. Therefore, the question is whether the hazard was visible, not whether the hazard was expected. Both Shipley and Farmer testified that they saw the raised metal plate, so it was visible. Therefore, Shipley's argument that the raised metal plate was not open and obvious because it was unexpected finds no support in the caselaw.
Shipley also argues that the raised metal strip was not open and obvious because the protuberance was not "discernable upon casual observation" and because she only saw it when she was lying on the ground. Shipley did not identify anything that obscured the elevated piece or the surroundings that would have prevented an average person from seeing it by looking around. Unlike Price, 284 Mich App at 502, in which the candy-filled bin obscured the one-inch piece of wire, Shipley did not testify about anything that would obscure an average observer's view of the raised metal plate.
In sum, viewing the evidence in the light most favorable to Shipley, the metal strip that Shipley tripped over was open and obvious, and the trial court did not err in granting Kmart's motion for summary disposition.
We affirm.
/s/ Michael J. Talbot
/s/ Peter D. O'Connell
/s/ Colleen A. O'Brien