             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                  revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS



MARIEA WILSON,                                                         UNPUBLISHED
                                                                       October 10, 2019
               Plaintiff-Appellant,

v                                                                      No. 345535
                                                                       Genesee Circuit Court
THE KROGER COMPANY OF MICHIGAN,                                        LC No. 17-110113-NO

               Defendant-Appellee.


Before: REDFORD, P.J., and JANSEN and LETICA, JJ.

PER CURIAM.

     In this premises liability action, plaintiff appeals as of right the trial court’s order granting
summary disposition in favor of defendant under MCR 2.116(C)(10). We affirm.

               I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

        Plaintiff had been shopping at defendant’s store for dog food and cigarettes, and chose to
check out at a self-checkout station. Plaintiff asked defendant’s employee, Dwuan Moore, who
had been standing at his station at the front of the self-checkout area, to get her the cigarettes.
Moore walked around the register to retrieve the cigarettes. He returned with the cigarettes and
scanned them for plaintiff. As she was leaving the store, plaintiff stepped around Moore’s
station and proceeded to slip on cherries that were on the floor.

        When plaintiff stepped on the cherries, her right ankle turned out and she heard a pop, but
she did not fall. In her deposition, plaintiff testified that she did not see the cherries on the floor
until immediately before she stepped on them. Plaintiff alerted Moore to the cherries, then
walked out of the store, and drove herself and her husband home. After arriving home,
plaintiff’s ankle became swollen and painful to walk on, and she went to a hospital, where it was
determined that the ankle was sprained. Plaintiff was placed in an air cast and discharged home.
Later that night she returned to the store to report the incident.




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        Plaintiff filed a one-count complaint alleging that defendant was negligent in keeping its
premises in a reasonable state of repair and free from hazardous conditions, and in failing to
warn plaintiff of the hazardous conditions.1 After engaging in discovery, defendant moved for
summary disposition under MCR 2.116(C)(10), arguing that the cherries were open and obvious
and that there was no evidence to indicate that defendant had actual or constructive notice of the
condition. The trial court agreed that the cherries were open and obvious, and granted summary
disposition in favor of defendant solely on that basis. This appeal followed.

                                  II. STANDARD OF REVIEW

        We review the trial court’s decision on a motion for summary disposition de novo.
Sabbagh v Hamilton Psychological Services, PLC, ___ Mich App ___, ___; ___ NW2d ___
(2019) (Docket No. 343204); slip op at 4. Summary disposition under MCR 2.116(C)(10) is
appropriate where “there is no genuine issue as to any material fact, and the moving party is
entitled to judgment or partial judgment as a matter of law. A genuine issue of material fact
exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open
an issue upon which reasonable minds might differ.” George v Allstate Ins Co, ___ Mich App
___, ___; ___ NW2d ___ (2019) (Docket No. 341876); slip op at 5 (quotation marks and
citations omitted). When reviewing a summary disposition motion brought under MCR
2.116(C)(10), the “trial court must consider the pleadings, affidavits, depositions, admissions and
other documentary evidence submitted in the light most favorable to the nonmoving party.” Id.;
slip op at 5. Reasonable inferences are drawn in favor of the nonmoving party. Id.; slip op at 5.

                             III. OPEN AND OBVIOUS DOCTRINE

        Plaintiff argues on appeal that the trial court erroneously granted summary disposition in
favor of defendant where a material question of fact remained regarding whether the cherries
upon which plaintiff slipped were an open and obvious danger. Specifically, plaintiff maintains
that there is a remaining question of fact regarding whether the cherries were obstructed from
view by a cash register.

        “In a premises liability action, a plaintiff must prove (1) that the defendant owed a duty to
the plaintiff, (2) that the defendant breached the duty, (3) that the defendant’s breach of the duty



1
   We note that although plaintiff labeled Count I of her complaint as a complaint for
“Negligence,” it is actually a premises liability claim. “If the plaintiff’s injury arose from an
allegedly dangerous condition on the land, the action sounds in premises liability rather than
ordinary negligence[.]” Wilson v BRK, Inc, ___ Mich App ___, ___; ___ NW2d ___ (2019)
(Docket No. 342449); slip op at 3 (citation omitted). However, because we look to the gravamen
of plaintiff’s complaint, we treat this matter, as the trial court did, as a premises liability claim.
See Adams v Adams (On Reconsideration), 276 Mich App 704, 710-711; 742 NW2d 399 (2007),
where this Court explained, “[i]t is well settled that the gravamen of an action is determined by
reading the complaint as a whole, and by looking beyond mere procedural labels to determine the
exact nature of the claim.”


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caused plaintiff’s injuries, and (4) that the plaintiff suffered damages.” Kennedy v Great Atlantic
& Pacific Tea Company, 274 Mich App 710, 712; 737 NW2d 179 (2007) (citation omitted). In
this case, it is undisputed that plaintiff was an invitee, and as such, defendant, as a premises
possessor,

       owes a duty to use reasonable care to protect invitees from unreasonable risks of
       harm posed by dangerous conditions on the owner’s land. Michigan law provides
       liability for a breach of this duty of ordinary care when the premises possessor
       knows or should know of a dangerous condition on the premises of which the
       invitee is unaware and fails to fix the defect, guard against the defect, or warn the
       invitee of the defect. [Hoffner v Lanctoe, 492 Mich 450, 460; 821 NW2d 88
       (2012) (citations omitted).]

However, the possessor of a premises does not owe a plaintiff a duty to exercise reasonable care
to protect them from an unreasonable risk of harm when a dangerous condition is open and
obvious. Lugo v Ameritech Corp Inc, 464 Mich 512, 516; 629 NW2d 384 (2001).

       [W]here the dangers are known to the invitee or are so obvious that the invitee
       might reasonably be expected to discover them, an invitor owes no duty to protect
       or warn the invitee unless he should anticipate the harm despite knowledge of it
       on behalf of the invitee. [Id. (alteration in original), citing Riddle v McLouth Steel
       Products Corp, 440 Mich 85, 96; 485 NW2d 676 (1992).]

         A potential danger is open and obvious when “an average user with ordinary intelligence
[would] have been able to discover the danger and the risk presented upon casual inspection.”
Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 478; 760 NW2d 287 (2008) (quotation
marks and citation omitted; alteration in original). This is an objective standard, and the
subjective knowledge or level of care taken by the invitee should not be the focus when
determining if the danger was open and obvious. Lugo, 464 Mich at 523-524. Instead of asking
if the invitee saw the danger, a court should instead ask if the danger was observable upon casual
inspection to the average observer. Price v Kroger Co of Mich, Inc, 284 Mich App 496, 501;
773 NW2d 739 (2009). In fact,

       [o]ur Supreme Court has explicitly cautioned that when applying this test, it is
       important for courts . . . to focus on the objective nature of the condition of the
       premises at issue, not the subjective degree of care used by the plaintiff. The
       proper question is not whether this plaintiff could or should have discovered [the
       condition], but whether the [condition] was observable to the average, casual
       observer. [Price, 284 Mich App at 501 (quotation marks and citation omitted)
       (italics in original).]

       Turning to the instant case, plaintiff argues that her view of the cherries on the floor was
obstructed by a cash register, and therefore the condition was not open and obvious. At
minimum, plaintiff argues, a question of fact remains as to the whether an average, casual
observer would have seen the cherries. We cannot agree. Plaintiff testified that the cherries
were “Bing cherries,” red in color, and lying on a gray floor. Plaintiff further testified that she
saw the cherries on the floor as she was stepping on them. Plaintiff never fell, and had no

                                                -3-
trouble seeing the cherries on the floor after stepping on them. Accordingly, in light of
plaintiff’s own testimony, we conclude that an average person of ordinary intelligence would
have discovered the cherries on the floor upon a casual inspection, and a reasonable person in
plaintiff’s position would have perceived the danger. Therefore, we conclude that the cherries
were open and obvious as a matter of law.

         Plaintiff also argues that a material question of fact remains as to whether defendant had,
or should have had, notice of the cherries on the floor, which created a dangerous condition.
Although this issue was raised in the trial court, it was not decided by the trial court in light of
the trial court’s finding that the condition was open and obvious. Because this issue was not
decided in the trial court, this Court is not required to address the issue, and we decline to do so
here in light of our conclusion that the condition was open and obvious.

       Affirmed.

                                                             /s/ James Robert Redford
                                                             /s/ Kathleen Jansen
                                                             /s/ Anica Letica




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