                          STATE OF MICHIGAN

                           COURT OF APPEALS



KENNETH KLIMEK,                                                     UNPUBLISHED
                                                                    April 7, 2015
               Plaintiff-Appellant,

v                                                                   No. 318504
                                                                    Oakland Circuit Court
MS PLAZA, LLC, and PRIME PROPERTY                                   LC No. 2012-130756-NO
ASSOCIATES, INC.,

               Defendants-Appellees.


Before: BECKERING, P.J., and JANSEN and BOONSTRA, JJ.

PER CURIAM.

       In this negligence action alleging a claim of premises liability, plaintiff, Kenneth Klimek,
appeals as of right the trial court’s order granting summary disposition under MCR 2.116(C)(10)
in favor of defendants, MS Plaza, LLC, and Prime Property Associates, Inc., and dismissing his
claim. We affirm.

         This claim arose from injuries plaintiff sustained when he slipped and fell as he stepped
on a urinal mat located in the restroom of an office building owned by MS Plaza, LLC (“MS
Plaza”) and managed by Prime Property Associates, Inc. (“Prime Property”). Plaintiff filed the
instant complaint alleging that defendants were liable for his injuries under a theory of premises
liability. Defendants moved for summary disposition under MCR 2.116(C)(10). The trial court,
finding that there was no genuine issue of material fact that the urinal mat, the allegedly
dangerous condition, was open and obvious and lacked any special aspects, granted summary
disposition in defendants’ favor and dismissed plaintiff’s premises liability claim as to both
defendants. Plaintiff now appeals that decision.

         We review de novo a trial court’s decision on a motion for summary disposition. Spiek v
Dep’t of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998). “A motion under MCR
2.116(C)(10) tests the factual sufficiency of the complaint.” Maiden v Rozwood, 461 Mich 109,
120; 597 NW2d 817 (1999). “In evaluating a motion for summary disposition brought under this
subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other
evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party
opposing the motion.” Id. at 120. “Where the proffered evidence fails to establish a genuine
issue regarding any material fact, the moving party is entitled to judgment as a matter of law.”
Id. (citations omitted). Whether a hazardous condition is open and obvious is initially a question

                                                -1-
of law for the trial court. Knight v Gulf & Western Props, Inc, 196 Mich App 119, 126; 492
NW2d 761 (1992). However, “[i]f genuine issues of material fact exist regarding the condition
of the premises and whether the hazard was open and obvious, summary disposition is
inappropriate.” Watts v Michigan Multi-King, Inc, 291 Mich App 98, 103; 804 NW2d 569
(2010).

        To establish a prima facie case of premises liability, “ ‘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.’ ” Sanders v Perfecting Church, 303 Mich App 1, 4; 840 NW2d 401 (2013), quoting
Benton v Dart Props, Inc, 270 Mich App 437, 440; 715 NW2d 335 (2006). The duty a premises
possessor owes to individuals who enter its premises is determined by the visitor’s status. Stitt v
Holland Abundant Life Fellowship, 462 Mich 591, 596; 614 NW2d 88 (2000). The parties do
not dispute that plaintiff, who was attending a weekly business meeting in the subject building
when the accident occurred, was a business invitee. “ ‘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.’ ” Joyce v Rubin, 249 Mich App 231, 238;
642 NW2d 360 (2002), quoting Lugo v Ameritech Corp, 464 Mich 512, 516; 629 NW2d 384
(2001). However, a premises possessor is not an absolute insurer of an invitee’s safety and is not
required to protect an invitee from dangerous conditions that are “open and obvious.” Lugo, 464
Mich at 516; Joyce, 249 Mich App at 238. “The possessor of land owes no duty to protect or
warn of dangers that are open and obvious because such dangers, by their nature, apprise an
invitee of the potential hazard, which the invitee may then take reasonable precautions to avoid.”
Hoffner v Lanctoe, 492 Mich 450, 460-461; 821 NW2d 88 (2012) (internal quotation marks
omitted). Thus, in determining whether a premises possessor owes a duty to a plaintiff, a court
must first determine whether the dangerous condition was open and obvious.

         The relevant circumstances surrounding plaintiff’s accident are largely not in dispute.
Mark Santi, who is a member of the entity that owns 60 percent of the building where the
incident occurred and is responsible for the operations of the building, directed Peter Meldrum,
who provides commercial cleaning services for the building, to begin utilizing urinal mats in the
building’s restrooms. The mats were described as lightweight, disposable, rubberized mats that
were specifically designed to be placed in front of a urinal and to grip to a restroom floor. The
specific urinal mats used in the subject building have a rubber, flat bottom with “gripping factors
to it,” the top of the mats are rubber with “some texture,” like a “waffle,” and the inside of the
middle of the mats contains a scented paper or fabric to “collect and dry out the dripping.”1

       Plaintiff attended a weekly business meeting at an office in the subject building and had
used the second-floor restroom several times before his slip and fall accident. About six months



1
  Plaintiff presented product literature regarding the urinal mat, which describes the mat as being
constructed of a “heavier, high-friction, coefficient material” that “actually grips to CLEAN,
DRY floors[,]” that “[n]o adhesive or velcro” is needed in light of its “gripping action[,]” and
that it “substantially reduces slipping.”


                                                -2-
before his accident, plaintiff noticed that a mat had been placed on the restroom floor beneath
and/or in front of the urinal. Plaintiff was aware that the mat was “loose” and not adhered to the
floor because when he stepped on the mat, it “would wobble” and “[f]rom time to time [he]
would go in [to the restroom] and it [the mat] would be out of position, it would be either instead
of where it was located six, eight inches, ten inches from the wall, it had been slid all the way
forward up to the wall or it was slid to one side.” “Multiple” times plaintiff noticed that the
urinal mat was out of place or “askew,” but he never experienced any trouble slipping on the
mat.2 He explained that on the date of his slip and fall accident, the urinal mat was “askew” and
not adhered to the floor.

        On the day of the incident, plaintiff had just finished attending his weekly business
meeting and stopped to use the second-floor restroom. Plaintiff described the floor of the
restroom as smooth linoleum tile with no grout and the restroom lighting as adequate and well-lit
from florescent lights above. In the area around the front of the urinal, plaintiff observed the
rubberized urinal mat that was “fairly stiff” with a top surface, “like a waffle,” that was
approximately 12 inches wide and 15 to 18 inches long and cut at an angle. According to
plaintiff, the mat was “askew” or “out of place” and “not adhered” to the floor. Plaintiff did not
observe any “foreign substance” on top of the mat, such as a piece of toilet paper, or anything
indicating that the floor might be wet. Plaintiff approached the urinal and, as he stepped onto the
mat with his left foot, he “lost control,” the mat moved and slid out from underneath him, he
slipped, his body “went down,” and he “hit the floor.” As plaintiff fell, he did not notice
anything on the floor other than the mat. Upon entering the restroom to assist plaintiff after he
fell, two individuals who worked in the building observed that the urinal mat had moved or
shifted from its regular position. They also did not observe anything else on the floor, such as
moisture, toilet paper, or other debris that could have contributed to plaintiff’s fall. Plaintiff
believed that the urinal mat had slipped out from underneath him causing him to fall and sustain
serious injury to his knee.

         At issue in the instant case is whether the allegedly hazardous condition created by the
urinal mat on the restroom floor of the subject building is open and obvious so as to cut off
defendants’ liability for plaintiff’s injuries resulting from his slip and fall accident. “Open and
obvious dangers exist ‘where the dangers are known to the invitee or are so obvious that the
invitee might reasonably be expected to discover them . . . .’ ” Joyce, 249 Mich App at 238,
quoting Riddle v McLouth Steel Prod Corp, 440 Mich 85, 96; 485 NW 2d 676 (1992). A danger
is open and obvious even if the plaintiff did not know of its existence where, under the
circumstances, “it is reasonable to expect that an average person with ordinary intelligence
would have discovered it upon casual inspection.” Hoffner, 492 Mich at 461. The focus of this
test is on “the objective nature of the condition of the premises at issue, not the subjective degree
of care used by the plaintiff.” Lugo, 464 Mich at 524. “The test is objective, and the inquiry is
whether a reasonable person in the plaintiff’s position would have foreseen the danger, not


2
  Two individuals who work with plaintiff testified in depositions that they had slipped on the
urinal mats, but they never informed anyone of the incidents or discussed the incidents with
anyone.


                                                -3-
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). See also
Hoffner, 492 Mich at 461; Corey v Davenport College of Business (On Remand), 251 Mich App
1, 5; 649 NW2d 392 (2002); Joyce, 249 Mich App at 238-239.

         Under the undisputed facts in this case, we conclude that a reasonable person in
plaintiff’s position would have recognized and foreseen, upon casual inspection, the potential
danger that a rubberized mat that was visibly askew and not adhered to a restroom floor made of
smooth linoleum tile might move and cause one to slip and fall. See Slaughter, 281 Mich App at
479. Although, there is no evidence indicating that the restroom floor was wet or that there was
any debris on the mat or the floor indicating a visible slipping hazard, the fact that plaintiff
observed that the mat was askew and not adhered to the floor prior to his fall revealed the
potentially hazardous condition. Moreover, plaintiff knew that the urinal mat tended to move or
shift positions, was “loose,” and would wobble when stepped upon. Although it is apparent from
his testimony that plaintiff did not actually know of or appreciate the risk that he might slip and
fall if the mat moved or shifted, the relevant inquiry does not focus on whether a particular
plaintiff knew or should have known that the condition was hazardous. Id. at 478-479.
Accordingly, we find that the allegedly dangerous condition presented by the urinal mat was
open and obvious as a matter of law and the trial court did not err in so deciding.3

        In reaching this conclusion, we reject plaintiff’s argument that the instant case is
analogous to, and controlled by, the decision reached by a panel of this Court in Bielby v
Saginaw Plaza Group, LLC, unpublished opinion per curiam of the Court of Appeals, issued
February 24, 2011 (Docket No. 295564). We note that unpublished opinions are not binding
precedent under the rule of stare decisis. MCR 7.215(C)(1); Slaughter, 281 Mich App at 482 n
4. Regardless, the facts of the instant case differ critically from those presented in Bielby. In
Bielby, unpub op at 1-2, the plaintiff, who slipped on a mat in a bathtub while he was taking a
shower, first checked the mat to determine if it was secured to the bottom of the bathtub, and
believed that it was secured. Thereafter, the plaintiff leaned against the wall in the bathtub, and
the mat slipped out from underneath him. Id. at 2-3. Where the mat was “ostensibly affixed
permanently to the bottom of the bathtub” and later fell out from underneath the plaintiff while
he was leaning, this Court held that the trial court erred by holding, as a matter of law, that the
risk presented by the mat was open and obvious. Id. at 3. The panel explained, “we do not agree
with the trial court that an average person would recognize upon casual inspection the danger
actually presented here; that a mat that appeared to be permanently affixed would move out from
under the person if he leaned against the back of the shower.” Id.


3
  The affidavit of plaintiff’s safety expert did not create a genuine issue of material fact regarding
whether the condition presented by the urinal mat was open and obvious. Where the mat was
visibly askew and not adhered to the restroom floor, a reasonably prudent person would have
appreciated the risk that the mat might move or shift. Moreover, the expert’s conclusion that
plaintiff would not have been able to discover the hidden danger and risk presented upon casual
inspection is a legal conclusion and “[t]the opinion of an expert does not extend to legal
conclusions.” Maiden, 461 Mich at 130 n 11.


                                                 -4-
        The facts in this case are materially distinguishable from those in Bielby. Notably,
plaintiff’s testimony in the instant case indicates that he was aware that the urinal mat was askew
and not permanently affixed to the floor before he stepped on it. Further, plaintiff admitted
knowing that the mat was “loose” and that it would “wobble” when he stepped on it.
Accordingly, unlike in Bielby, the hazardous condition caused by the urinal mat, i.e., that it
might shift or move causing one to slip and fall, was not a “hidden danger.”

        We also agree with the trial court that there was no genuine issue of material fact
concerning whether there were any special aspects rendering the open and obvious condition
presented by the urinal mat unreasonably dangerous. 4 “[I]f special aspects of a condition make
even an open and obvious risk unreasonably dangerous, the premises possessor has a duty to
undertake reasonable precautions to protect invitees from that risk.” Lugo, 464 Mich at 517.
The “special aspects” exception applies to the open and obvious doctrine when a condition is
effectively unavoidable or when the condition is unreasonably dangerous. Hoffner, 492 Mich at
463.

        The dangerous condition presented by the urinal mat lacked any special aspects to render
the open and obvious hazard actionable. The likelihood of harm caused by the unsecured urinal
mat, i.e., slipping and falling on a bathroom floor, is not unusually high or severe. See Lugo, 464
Mich at 518. Although falling on a linoleum tile floor certainly presents some potential for
severe harm, these circumstances are not the type of special aspects that Lugo contemplated. See
id. at 519-520. See also Corey, 251 Mich App at 7. Additionally, the hazardous condition was
not “effectively unavoidable.” Lugo, 464 Mich at 518. “An ‘effectively unavoidable’ hazard
must truly be, for all practical purposes, one that a person is required to confront under the
circumstances.” Hoffner, 492 Mich at 472. In the instant case, plaintiff, who was aware that the
urinal mat was askew and not adhered to the floor, could have stepped around the mat, inspected
it to ensure it was secure before stepping on it, or simply moved the mat out of the way, thereby
eliminating the danger and risk of harm presented by the mat. The condition in this case was
common, not “uniquely dangerous,” and not unavoidable so as to “warrant removing this case
from the open and obvious danger doctrine.” Joyce, 249 Mich App at 243.

        We conclude that the trial court did not err in determining that the dangerous condition
created by the urinal mat was open and obvious and lacked any special aspects rendering the
open and obvious condition unreasonably dangerous.5 Thus, defendants had no duty to protect
plaintiff from the hazardous condition.



4
  Plaintiff emphasizes on appeal that he makes no claim of the existence of a special aspect;
rather, he contends that the condition was not open and obvious.
5
  To the extent plaintiff argues that the trial court erred by granting summary disposition under
the open and obvious doctrine because only MS Plaza, not Prime Property, moved for summary
disposition under the open and obvious doctrine, that argument is meritless. MCR 2.116(I)(1)
permits the trial court to sua sponte grant summary disposition “[i]f the pleadings show that a
party is entitled to judgment as a matter of law, or if the affidavits or other proofs show that there
is no genuine issue of material fact . . . .” Where plaintiff had notice of the open and obvious

                                                 -5-
       We need not consider plaintiff’s remaining issue, regarding possession and control of the
premises, because our decision regarding the open and obvious danger issue fully resolves this
case and the trial court did not address it. See Corey, 251 Mich App at 9; Fast Air, Inc v Knight,
235 Mich App 541, 549-550; 599 NW2d 489 (1999).

       Affirmed.



                                                            /s/ Jane M. Beckering
                                                            /s/ Mark T. Boonstra




issue and a chance to respond to it at the summary disposition hearing, we find no error by the
trial court in granting summary disposition to both defendants.


                                               -6-
