                          STATE OF MICHIGAN

                            COURT OF APPEALS



WILLIAM PINCOMB,                                                     UNPUBLISHED
                                                                     February 16, 2016
               Plaintiff-Appellant,

v                                                                    No. 324989
                                                                     Oakland Circuit Court
DIVERSIFIED INVESTMENT VENTURES,                                     LC No. 2013-136785-NO
LLC,

               Defendant-Appellee.


Before: CAVANAGH, P.J., and RIORDAN and GADOLA, JJ.

PER CURIAM.

         Plaintiff, William Pincomb, appeals as of right the trial court order granting summary
disposition in favor of defendant, Diversified Investment Ventures, LLC, in this premises
liability action. We affirm.

               I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

        On January 3, 2011, at approximately 5:00 or 6:00 p.m., plaintiff was helping Anthony
Williams and Bruce Wendel move into their new rental home in Pontiac, Michigan. Defendant,
which is a partnership consisting of Robert Stocki and three other partners, owned the home. It
was dark and cold outside. The porch light was broken, and exposed wires remained where a
light fixture was previously affixed on the side of the house. According to Williams, the front
porch steps were illuminated presumably from the street lights, but the side of the house—
including where side stairs also leading to the porch were located—was not. The ground was
wet even though it was not raining or snowing. Plaintiff had not visited the rental house before
the night of the incident.

         When plaintiff pulled into the driveway upon his arrival, he parked his truck near the side
stairs leading to the front porch. At the time, Williams was moving a U-Haul truck on the front
lawn so that the truck’s ramp rested directly on the porch and, in effect, blocked the front stairs
leading to the porch. Williams and Wendel entered the house and began turning lights on while
plaintiff remained in his truck.

       Plaintiff initially was concerned about the lack of illumination on the side of the house,
but he ultimately concluded that the lighting was sufficient for him to unload his vehicle. He
exited his truck, retrieved a box from the back of the vehicle, ascended a set of stairs to the

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porch, and entered the front door of the home.1 He did not look at the areas where he was
stepping as he moved the first box into the house, but he was able to walk across the ground
without difficulty on his way inside. Likewise, he did not notice the uneven pavement as he
moved the first box.

        After leaving the box inside, plaintiff exited the house and descended down the side
steps. He chose this route because those steps were closest to his vehicle. As he was walking,
plaintiff did not look at the surface where he was stepping. When he stepped down onto the
sidewalk from the stairs, he encountered uneven pavement, which caused him to fall onto the
driveway. He did not see the uneven concrete before or after he fell on the night of the incident,
as he only realized that the pavement was uneven when he stepped onto it. Plaintiff testified at
his deposition that it was too dark at the time of the incident, and there was not enough light
coming from the inside of the house or any street lights, for him to properly see the sidewalk or
observe the uneven pavement. Due to the fall, plaintiff injured his left knee, left ankle, left leg,
and lower back.

        Defendant moved for summary disposition pursuant to MCR 2.116(C)(10), contending
that there was no genuine issue of material fact (1) that the condition on which plaintiff fell was
open and obvious and included no special aspects, and that (2) defendant had no notice of the
alleged hazard. In response, plaintiff argued that the sidewalk was atypical due to the limited
illumination, such that there were genuine issues of material fact regarding whether the uneven
pavement was open and obvious and whether the sidewalk posed an unreasonable risk of harm.
Plaintiff also argued, inter alia, that the condition in the sidewalk adjacent to the side steps was
effectively unavoidable due to the fact that (1) a moving truck blocked access to the front steps,
and (2) the side door of the house was inaccessible because neither the gate enclosing the side
door nor the door itself was working. The trial court granted summary disposition in favor of
defendant under the open and obvious doctrine, finding that “[t]he uneven sidewalk was not
unreasonably dangerous and was avoidable. There were no special aspects present and the
defect was discoverable upon casual inspection.”

                                  II. STANDARD OF REVIEW

        We review de novo a trial court’s grant or denial of summary disposition. Moraccini v
Sterling Hts, 296 Mich App 387, 391; 822 NW2d 799 (2012). When reviewing a motion for
summary disposition pursuant to MCR 2.116(C)(10), we may only consider, in the light most
favorable to the party opposing the motion, the evidence that was before the trial court, which
consists of “the ‘affidavits, together with the pleadings, depositions, admissions, and
documentary evidence then filed in the action or submitted by the parties.’ ” Calhoun Co v Blue
Cross Blue Shield Michigan, 297 Mich App 1, 11; 824 NW2d 202 (2012), quoting MCR
2.116(G)(5). Under MCR 2.116(C)(10), “[s]ummary disposition is appropriate if there is no
genuine issue regarding any material fact and the moving party is entitled to judgment as a


1
  Plaintiff testified that he used the side stairs to enter the home and expressly confirmed that he
never used the front stairs to enter or exit the rental house. However, Williams repeatedly stated
at his deposition that plaintiff initially used the front steps to enter the house, not the side steps.


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matter of law.” Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). “There
is a genuine issue of material fact when reasonable minds could differ on an issue after viewing
the record in the light most favorable to the nonmoving party.” Allison v AEW Capital Mgt,
LLP, 481 Mich 419, 425; 751 NW2d 8 (2008). “This Court is liberal in finding genuine issues of
material fact.” Jimkoski v Shupe, 282 Mich App 1, 5; 763 NW2d 1 (2008).

                                   III. OPEN AND OBVIOUS

       Plaintiff first argues that there was a genuine issue of material fact regarding whether the
uneven pavement was readily apparent upon casual inspection in light of the poor lighting
conditions. We disagree.

        “A plaintiff who brings a premises liability action must show (1) the defendant owed
[him] a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of
[his] injury, and (4) [he] suffered damages.” Bullard v Oakwood Annapolis Hosp, 308 Mich App
403, 408; 864 NW2d 591 (2014) (quotation marks and citation omitted; alterations in original).
“The duty owed to a visitor by a landowner depends on whether the visitor was a trespasser,
licensee, or invitee at the time of the injury.” Id. (quotation marks and citation omitted). The
parties do not appear to dispute that plaintiff was an invitee on defendant’s premises. Likewise,
the relevant caselaw establishes that plaintiff was an invitee at the time of the accident as a social
guest of defendant’s tenants, assuming that the stairs constituted a common area of the leased
premises controlled by defendant.2 See Petraszewsky v Keeth, 201 Mich App 535, 540-541; 506
NW2d 890 (1993).

       With regard to invitees, a landowner 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) (footnote omitted).]




2
 Neither party appears to dispute plaintiff’s status or defendant’s control over the area. Compare
Orel v Uni-Rak Sales Co, Inc, 454 Mich 564, 566-570; 563 NW2d 241(1997) (discussing when
an owner constitutes an invitor for purposes of a premises liability claim). See also Hampton v
Waste Mgt of Michigan, Inc, 236 Mich App 598, 603; 601 NW2d 172 (1999) (“A claim of
premises liability is conditioned on the presence of both possession and control over the
premises.”); Petraszewsky, 201 Mich App at 541(“As a matter of law, the plaintiff was an invitee
of the defendant landlord because she was injured in a common area of which he retained
control.”).




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However, “[t]he 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 measures to avoid.” Id. at 460-461.

        “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.
This is an objective standard, calling for an examination of the objective nature of the condition
of the premises at issue.” Id. at 461 (quotation marks, citation, and footnote omitted); see also
Riddle v McLouth Steel Products Corp, 440 Mich 85, 94; 485 NW2d 676 (1992) (“[A] possessor
of land does not owe a duty to protect his invitees . . . [from] dangers that are so obvious and
apparent that an invitee may be expected to discover them himself.”).

        Michigan courts generally have held that steps and differing ground levels are “everyday
occurrence[s] that people encounter” and constitute open and obvious conditions unless there is
something unusual about the steps or uneven floor. Bertrand v Alan Ford, Inc, 449 Mich 606,
616; 537 NW2d 185 (1995); see also Lugo v Ameritech Corp, Inc, 464 Mich 512, 520; 629
NW2d 384 (2001); Novotney v Burger King Corp, 198 Mich App 470, 474; 499 NW2d 379
(1993). As such, “steps and differing floor levels, such as . . . uneven pavement . . . , are not
ordinarily actionable unless unique circumstances surrounding the area in issue made the
situation unreasonably dangerous.” Weakley v City of Dearborn Hts, 240 Mich App 382, 385;
612 NW2d 428 (2000) (quotation marks and citation omitted), remanded for reconsideration on
other grounds 463 Mich 980 (2001).

         However, when there is something unusual about the condition due to its “character,
location, or surrounding conditions, then the duty of the possessor of land to exercise reasonable
care remains. If the proofs create a question of fact that the risk of harm was unreasonable, the
existence of duty as well as breach become questions for the jury to decide.” Bertrand, 449
Mich at 617 (quotation marks and footnotes omitted). Similarly, “[u]nder [the] limited [‘special
aspects’] exception, liability may be imposed only for an ‘unusual’ open and obvious condition
that is ‘unreasonably dangerous’ because it ‘present[s] an extremely high risk of severe harm to
an invitee’ in circumstances where there is ‘no sensible reason for such an inordinate risk of
severe harm to be presented.’ ” Hoffner, 492 Mich at 462.

        Unevenness arising from gaps or differing levels between pieces of pavement, or between
the pavement and the ground adjacent to it, is a common characteristic of sidewalks in general.
Plaintiff has failed to identify or offer any evidence that the uneven sidewalk itself was of a
character or included a unique aspect that rendered it unreasonably dangerous or presented an
unreasonable risk of harm. Likewise, the description of the sidewalk in the deposition testimony
and the photographs in the lower court record clearly show that there was nothing unusual about
the uneven pavement and that the uneven nature of the sidewalk was readily observable.

        But, plaintiff argues, the uneven pavement was not open and obvious due to the lack of
illumination at the time of plaintiff’s fall. As plaintiff contends, this Court previously concluded
that darkness may cause a hazard, which may be open and obvious in a well-lit space, not to be
open and obvious if an average person would be unable to discover it upon casual inspection
under the circumstances. See Abke v Vandenberg, 239 Mich App 359, 362-363; 608 NW2d 73
(2000); Knight v Gulf & Western Props, Inc, 196 Mich App 119, 126; 492 NW2d 761 (1992).

                                                -4-
However, the darkness or lack of illumination in this case is distinguishable from the facts in
Abke and Knight and does not constitute a unique circumstance that would render the sidewalk at
issue in this case not open and obvious or make the sidewalk unreasonably dangerous. Abke and
Knight both involved plaintiffs who fell due to unexpected drop-offs from indoor loading docks
in dark areas, which presented a hazard vastly more significant and dangerous than the routine
elevation difference in this case. Compare Abke, 239 Mich App at 360, 362, and Knight, 196
Mich App at 121, 127-128, with Lugo, 464 Mich at 520; Bertrand, 449 Mich at 616; Weakley,
240 Mich App at 385; Novotney, 198 Mich App at 474.

        Inadequate lighting may constitute an open and obvious condition, in and of itself, that an
invitee reasonably may be expected to discover. Singerman v Muni Serv Bureau, Inc, 455 Mich
135, 141; 565 NW2d 383 (1997). In Singerman, the plaintiff argued that his injuries resulted
from inadequate lighting in a hockey rink, which caused him to be unable to observe and avoid a
hockey puck. Id. at 141. It was undisputed that the inadequate lighting was an open and obvious
condition. Id. The Court explained that when poor lighting is an open and obvious condition,

       the question for the courts to decide is whether the risk of harm remains
       unreasonable, despite its obviousness or despite the invitee’s knowledge of the
       danger. If the court finds that the risk is still unreasonable, then the court will
       consider whether the circumstances are such that the invitor is required to
       undertake reasonable precautions. If so, then the issue becomes the standard of
       care and is for the jury to decide. [Id. at 142-143.]

Accordingly, the Court concluded:

       [H]ere there was nothing unusual about the inadequate lighting in the hockey rink
       to cause such a duty to remain. Plaintiff was an adult and an experienced hockey
       player. The lighting in the rink is alleged to have been consistently inadequate,
       not subject to unexpected fluctuations or other changes. There was nothing to
       prevent plaintiff from realizing that the rink was inadequately lighted. Nor was
       there any chance that he would forget the potentially hazardous condition,
       because the condition was constantly before him. Finally, plaintiff was not
       compelled to use the rink for work, or profit, or any other overriding or substantial
       motivation. He chose to participate in a dangerous sport under conditions that he
       knew to be dangerous. [Id. at 144.]

        Similarly, here, plaintiff expressly recognized that the area was dark and not well lit.
Nevertheless, he made a conscious choice to exit his vehicle and begin moving items into the
rental house despite the consistent lack of illumination, concluding that there was sufficient light
to move the boxes. There were no allegations or evidence indicating that the amount of light
changed between the time at which plaintiff entered the house with a box from his vehicle and
the time at which plaintiff descended the side stairs and stepped onto the uneven pavement. As
such, given this consistent lack of light, an average individual of ordinary intelligence would be
on notice that it was necessary to advance cautiously. Cf. Hoffner, 492 Mich at 460-461 (“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 measures to avoid.” [Quotation marks and citation omitted.]). Further,

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unlike “an unguarded thirty foot deep pit in the middle of a parking lot,” which has been
recognized as an unreasonably dangerous condition, Lugo, 464 Mich at 518, we have reasoned
that “[f]alling several feet to the ground is not the same as falling an extended distance such as
into a thirty-foot deep pit,” and “it cannot be expected that a typical person [falling a distance of
several feet] would suffer severe injury or a substantial risk of death,” Corey v Davenport
College of Business (On Remand), 251 Mich App 1, 7; 649 NW2d 392 (2002) (quotation marks
and citation omitted; second alteration in original).

        In addition, despite the darkness, it is undisputed that plaintiff was able to navigate the
steps adjacent to the uneven pavement without incident, which indicates that there was sufficient
light in the area for plaintiff to observe level changes near the stairs. Plaintiff also expressly
acknowledged that he did not look at the surface of the sidewalk when he ascended or descended
the side stairs.

       Thus, we reject plaintiff’s claim that the lack of illumination rendered the uneven
pavement not open and obvious, presented an unreasonable risk of harm, or constituted a special
aspect that removed the uneven pavement from the scope of the open and obvious doctrine.
Likewise, the trial court properly granted defendant’s motion for summary disposition because
there was no genuine issue of material fact that uneven pavement and lack of illumination were
open and obvious conditions that did not pose an unreasonable risk of harm. See Latham, 480
Mich at 111.

                             IV. EFFECTIVELY UNAVOIDABLE

       Next, plaintiff argues that the trial court erred in granting summary disposition under the
open and obvious doctrine because the uneven sidewalk on which he fell was effectively
unavoidable. We disagree.

        In Hoffner, 492 Mich at 468-469, the Michigan Supreme Court delineated the scope of
the effectively unavoidable exception to the open and obvious doctrine:

               The “special aspects” exception to the open and obvious doctrine for
       hazards that are effectively unavoidable is a limited exception designed to avoid
       application of the open and obvious doctrine only when a person is subjected to
       an unreasonable risk of harm. Unavoidability is characterized by an inability to
       be avoided, an inescapable result, or the inevitability of a given outcome. Our
       discussion of unavoidability in Lugo[, 646 Mich 512,] was tempered by the use of
       the word “effectively,” thus providing that a hazard must be unavoidable or
       inescapable in effect or for all practical purposes. Accordingly, the standard for
       “effective unavoidability” is that a person, for all practical purposes, must be
       required or compelled to confront a dangerous hazard. As a parallel conclusion,
       situations in which a person has a choice whether to confront a hazard cannot
       truly be unavoidable, or even effectively so. [Footnotes omitted.]

Similarly, this Court has stated, with regard to the effectively unavoidable exception that, “[p]ut
simply, the plaintiff must be “effectively trapped” by the hazard.” Bullard, 308 Mich App at 412
(emphasis added), citing Joyce v Rubin, 249 Mich App 231, 242; 642 NW2d 360 (2002).

                                                -6-
Likewise, a plaintiff who “ha[s] ample opportunity to avoid the [hazard],” who confronts hazard
after making several decisions, or who consciously decides to put himself in a position during
which he must confront the hazard cannot be “effectively trapped” by the condition. Id. at 412-
413.

        Here, the side steps were not the only route available to plaintiff. Most significantly,
plaintiff admitted during his deposition that he used the side stairs because they were “[c]losest
to [his] vehicle.” In essence, plaintiff used them because he found them to be more convenient
than other exits available to him. Likewise, Williams explained that he was following plaintiff
down the side steps where plaintiff fell and that they were taking that route solely for the reason
that those steps were closest to plaintiff’s vehicle. Plaintiff did not contend that he was forced to
confront or effectively trapped by the hazard. He also testified, and Williams confirmed, that the
men used the front stairs immediately before plaintiff fell and that Wendel was headed in the
direction of the front steps when plaintiff fell. Moreover, plaintiff and Williams both testified
that Williams moved the U-Haul truck to its position blocking the front stairs before plaintiff
began moving boxes from his vehicle into the house. As such, it is apparent that plaintiff could
have asked Williams or Wendel to move the truck, or moved the truck himself, so that he could
access the front steps. Further, plaintiff could have avoided the condition by waiting until a
different time to move the items into the house or by leaving the premises. See Bullard, 308
Mich App at 412-413.

       It is clear that plaintiff had a choice regarding whether to confront the sidewalk at the
bottom of the side stairs. See Hoffner, 492 Mich at 468-469. Thus, on this record, reasonable
minds could not differ in concluding that plaintiff was not “ ‘effectively trapped’ by the hazard.”
Bullard, 308 Mich App at 412.

     V. FAILURE TO DEMONSTRATE THAT THE CONDITION DID NOT POSE AN
                      UNREASONABLE RISK OF HARM

        Plaintiff also asserts that the trial court improperly granted summary disposition in
defendant’s favor because defendant failed to present any evidence establishing that the uneven
pavement and inadequate illumination at the time of plaintiff’s fall did not pose an unreasonable
risk of harm. We disagree.

        With regard to this issue, the basis for defendant’s motion for summary disposition under
MCR 2.116(C)(10) was that there was no genuine issue of material fact that the alleged hazard
was open and obvious, was not unreasonably dangerous, and was avoidable. “[T]he moving
party must support its motion with affidavits, depositions, admissions, or other documentary
evidence in support of the grounds asserted. MCR 2.116(G)(3).” See Barnard Mfg Co, Inc v
Gates Performance Engg, Inc, 285 Mich App 362, 369-370; 775 NW2d 618 (2009) (emphasis
added). Defendant attached to its motion for summary disposition pictures of the uneven
sidewalk at issue and plaintiff’s and Williams’s deposition testimony, which described the
circumstances of the incident, including the amount of light on the premises and the way in
which plaintiff fell. In light of this documentary evidence, plaintiff’s claim—including his
assertion that defendant failed to present any evidence regarding the amount of light on the
premises when the accident occurred and the level of risk posed by the hazard—has no merit.


                                                -7-
                                     VI. CONCLUSION

        The trial court properly concluded that there was no genuine issue of material fact that
the uneven pavement and dim lighting were open and obvious conditions that were not
unreasonably dangerous, were not effectively unavoidable, and did not pose an unreasonable risk
of harm. Thus, we need not consider the rest of plaintiff’s claims, as “the open and obvious
danger doctrine will cut off liability if the invitee should have discovered the condition and
realized its danger.” Grandberry-Lovette v Garascia, 303 Mich App 566, 576; 844 NW2d 178
(2014) (quotation marks and citation omitted).

       Affirmed.

                                                           /s/ Mark J. Cavanagh
                                                           /s/ Michael J. Riordan
                                                           /s/ Michael F. Gadola




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