Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  October 28, 2011                                                                  Robert P. Young, Jr.,
                                                                                              Chief Justice

  143320                                                                            Michael F. Cavanagh
                                                                                          Marilyn Kelly
                                                                                    Stephen J. Markman
                                                                                    Diane M. Hathaway
                                                                                        Mary Beth Kelly
  MILAGROS DASCOLA and JAMES DASCOLA,                                                   Brian K. Zahra,
                                                                                                   Justices
           Plaintiffs-Appellants,
  v                                                      SC: 143320
                                                         COA: 293475
                                                         Ingham CC: 06-000706-NO
  YMCA OF LANSING,
           Defendant-Appellee.

  _________________________________________/

        On order of the Court, the application for leave to appeal the May 19, 2011
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

        YOUNG, C.J. (concurring).

         There is no question that, under Michigan’s well-established premises liability
  law, the presence of water and soap residue in a public shower constitutes open and
  obvious dangers. As such, these conditions do not give rise to liability for a premises
  owner, and I believe that the lower courts clearly erred in not reaching this conclusion as
  a matter of law. However, because defendant has not filed a cross-appeal in this Court
  challenging the lower court’s determination that defendant is not entitled to summary
  disposition, I concur in the Court’s order denying leave to appeal.

          Plaintiff fell while showering in a YMCA shower. She sued, alleging a premises
  liability theory of negligence—namely, that defendant allowed a hazardous condition
  (soap scum) to exist in the shower, notwithstanding defendant’s claims that its employees
  checked the shower every 15 to 20 minutes, cleaned it every one to two hours, and deep
  cleaned and sterilized it every night. Defendant argued that the allegedly hazardous
  condition was open and obvious, but remarkably, the trial court denied defendant’s
  motion for a directed verdict and held, as a matter of law, that the condition was not open
  and obvious, instructing the jury to this effect. On appeal, the Court of Appeals also
  rejected defendant’s claim that the condition was open and obvious as a matter of law,
                                                                                             2

but remanded for a new trial, holding that there was a question of fact whether the
condition here was in fact open and obvious.1 Plaintiff has appealed this latter holding.

       It is axiomatic in Michigan law that a premises owner is not an absolute insurer
against every conceivable harm that may occur on his premises.2 While a premises
owner owes a duty to exercise reasonable care to protect an invitee from unreasonable
risks of harm caused by dangerous conditions on his land, the “open and obvious”
doctrine is an integral part of the definition of this duty, providing that there is no duty to
warn or protect an invitee from dangers that are so obvious that an invitee should
reasonably be expected to anticipate them.3 A particular danger is open and obvious if an
average person of ordinary intelligence would discover the danger upon casual
inspection.4 A common or expected condition is not uniquely dangerous.5 Thus, whether
a condition is open and obvious depends on whether a reasonably prudent person would
foresee the danger, given the surrounding circumstances.6

       With this understanding of Michigan law, the conclusion by the majority of the
Court of Appeals that a question of fact exists regarding whether soap residue in a shower
presents an open and obvious danger is, quite frankly, flabbergasting. Even a casual
review of this state’s premises liability and “open and obvious” caselaw compels the
conclusion that any danger created by soap residue in a public shower presents an open
and obvious condition. Although the proposition is so self-evident that it hardly merits
stating, it is within common understanding that the flat tiled surfaces that comprise a
shower will by their nature become wet and can therefore become slippery,

1
  Dascola v YMCA of Lansing, unpublished opinion per curiam of the Court of Appeals,
issued May 19, 2011 (Docket No. 293475). Judge SERVITTO dissented, and would have
held that defendant deserved judgment as a matter of law because the alleged hazard was
open and obvious.
2
    Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 500 (1988).
3
    Lugo v Ameritech Corp, Inc, 464 Mich 512, 516 (2001).
4
 See, e.g., Joyce v Rubin, 249 Mich App 231, 238 (2002); Novotney v Burger King Corp
(On Remand), 198 Mich App 470, 475 (1993).
5
 See Bertrand v Alan Ford, Inc, 449 Mich 606, 614 (1995); Corey v Davenport College
of Business (On Remand), 251 Mich App 1, 8-9 (2002).
6
 See, e.g., Janson v Sajewski Funeral Home, 486 Mich 934 (2010); Kenny v Kaatz
Funeral Home, 472 Mich 929 (2005), reversing Kenny v Kaatz Funeral Home, 264 Mich
App 99 (2004), for the reasons stated in Judge GRIFFIN’s dissenting opinion, 264 Mich
App at 115; Ververis v Hartfield Lanes (On Remand), 271 Mich App 61 (2006).
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particularly when soap or similar products are used. It is hardly surprising that soaps,
shampoos, or other bathing substances will be used in a shower and may leave residue or
“soap scum” on the shower’s surface. That such surfaces may become slippery
represents a quintessential “open and obvious” hazard. Moreover, there were no special
attributes to this shower that rendered it uniquely or unreasonably dangerous. A
reasonably prudent person of ordinary intelligence understands that a wet public shower
poses a slip-and-fall hazard, particularly where soap or other residue may be present on
the shower’s surface.7 The conclusion of the Court of Appeals majority holding that
there is a question of fact in this regard defies common sense.

       The open and obvious doctrine was developed to prevent lawsuits precisely like
the present one. Because the law as applied on these facts clearly compels summary
disposition in favor of defendant, had defendant filed a cross-appeal in this Court
requesting such relief, I would have voted to grant it.8 Nevertheless, absent this request I
concur in the decision to deny leave to appeal.

       MARKMAN, J., joins the statement of YOUNG, C.J.




7
 Whether plaintiff saw the soap residue on the floor before or after her fall is irrelevant
because the determination whether a reasonably prudent person would discover or
anticipate this danger is an objective question.
8
  Although defendant responded to plaintiff’s application for leave to appeal here,
defendant did not appeal the lower court’s holding affirming the trial court’s denial of
defendant’s motion for summary disposition. Accordingly, plaintiff’s appeal arising out
of its separate motion for summary disposition is the only controversy properly before
this Court.



                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         October 28, 2011                    _________________________________________
       t1025                                                                 Clerk
