                           STATE OF MICHIGAN

                            COURT OF APPEALS



SUSAN BLACKWELL,                                                      FOR PUBLICATION
                                                                      January 31, 2017
               Plaintiff-Appellant,                                   9:00 a.m.

v                                                                     No. 328929
                                                                      Oakland Circuit Court
DEAN FRANCHI and DEBRA FRANCHI,                                       LC No. 14-141562-NI

               Defendants-Appellees.


Before: K. F. KELLY, P.J., and GLEICHER and SHAPIRO, JJ.

SHAPIRO, J.


        Plaintiff appeals as of right the order of the trial court granting defendants’ motion for
summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact) in this
premises liability case. On the evening of December 14, 2013, plaintiff attended a dinner party
at defendants’ home. Defendants’ home includes a hallway that leads from the front door to the
living room and dining room area. There are two rooms on each side of the hallway, a bathroom
and a mud room. There is an approximately eight inch drop-off as one steps into the mud room
from the hallway. Plaintiff went to put her purse in the mud room, after arriving at defendants’
home, and fell upon entry as a result of the drop-off. Plaintiff was injured and filed suit.
Defendants moved for summary disposition arguing that the drop-off was open and obvious, and,
therefore, they had no duty to warn plaintiff of its existence. The trial court granted defendants’
motion. We reverse.1

        The open and obvious doctrine provides that “if the particular activity or condition
creates a risk of harm only because the invitee [or licensee] does not discover the condition or
realize its danger” then liability is cut off “if the invitee [or licensee] should have discovered the
condition and realized its danger.” Bertrand v Alan Ford, Inc, 449 Mich 606, 611; 537 NW2d


1
  In addition to premises liability, plaintiff’s complaint contained allegations sounding in
ordinary negligence and nuisance. The trial court granted summary disposition to defendants on
these claims as well. The parties do not present any substantial argument on ordinary negligence
or nuisance on appeal, and we affirm the trial court’s grant of summary disposition on these
claims.



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185 (1995).2 As a general rule a drop-off, like a step, does not in and of itself create a risk of
harm since if seen a reasonable person can readily transverse it without incident.3 In this case,
however, plaintiff argues that the danger from the drop-off arose “because [plaintiff] d[id] not
discover the condition or realize its danger.” Id. Thus, the question is whether “[plaintiff]
should have discovered the condition and realized its danger.” Id. (emphasis added).

         Whether plaintiff should have discovered the drop-off, turns on whether “an average user
with ordinary intelligence acting under the same conditions would have been able to discover the
danger and the risk presented by the condition upon casual inspection.” Grandberry-Lovette v
Garascia, 303 Mich App 566, 578-577; 844 NW2d 178 (2014) (quotations and citation omitted).
If so, the condition is open and obvious, and no duty to warn arises. A defendant is entitled to
summary disposition on the basis of the open and obvious doctrine “[i]f the plaintiff alleges that
the defendant failed to warn of the danger, yet no reasonable juror would find that the danger
was not open and obvious.” Bertrand, 449 Mich at 617. In order for a plaintiff’s claim to
survive a defendant’s motion for summary disposition on open and obvious grounds, the plaintiff
must “come forth with sufficient evidence to create a genuine issue of material fact that an
ordinary user upon casual inspection could not have discovered the existence of [the condition.]”
Novotney v Burger King Corp, 198 Mich App 470, 475; 499 NW2d 379 (1993).

       Therefore, we must determine whether, based on the evidence presented, there is a
genuine factual dispute regarding whether an average user of ordinary intelligence acting under




2
  Plaintiff argues that she should properly be considered an invitee because the dinner party at
defendants’ house was a work-related party. However, the evidence does not support this
conclusion. Plaintiff did work at the University of Michigan with defendant Debra Franchi, but
both testified at their depositions that only two other University of Michigan employees attended
the party, and defendant Dean Franchi testified at his deposition that 50-60 people had been
invited to the party and that about 20-25 people attended. Additionally, during plaintiff’s
deposition, she distinguished defendants’ party from her employer’s holiday party. This
evidence shows that plaintiff is properly classified as a licensee at the time of her injury. A
premises possessor does not owe a duty to a licensee to make the premises safe, but does owe a
duty “to warn the licensee of hidden dangers the owner knows or has reason to know of, if the
licensee does not know or have reason to know of the dangers involved.” Stitt v Holland
Abundant Life Fellowship, 462 Mich 591, 596; 614 NW2d 88 (2000).
3
  While “the danger of tripping and falling on a step is generally open and obvious[,] . . . where
there is something unusual about the steps because of their character, location, or surrounding
conditions, then the duty of the possessor of land to exercise reasonable care remains.” Perkoviq
v Delcor Homes-Lake Shore Pointe, Ltd, 466 Mich 11, 17-18; 643 NW2d 212 (2002) (quotations
omitted). See also, Bertrand at 624 (though no duty to warn because step was open and obvious,
a question of fact existed whether the step itself, given its location and traffic, created an
unreasonable risk of harm).




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the conditions as they existed at the time plaintiff encountered the drop-off would have been able
to discover it on casual inspection. See id.

        Plaintiff presented evidence in the form of deposition testimony from several other party
guests establishing that the drop-off into the mud room was not discoverable upon casual
inspection at the time she encountered it. Guest Endia Simmons testified that she was walking
with plaintiff when plaintiff fell. Simmons testified, “[W]e didn’t realize that there was a step
down because there [were] no lights in that particular room.” Simmons further testified that
“you could not see that there was a level down” and stated that “[i]t just looked like it was
straight across.” Simmons also stated that had she been walking ahead of plaintiff she likely
would have fallen. Guest Ebony Whisenant, while acknowledging that she did not specifically
see plaintiff fall, corroborated Simmons’s description of the mud room entrance testifying at her
deposition that the hallway into the mud room looked level and that the height differential could
not be seen. Whisenant described the mud room as “very dark.” Additionally, while the
deposition testimony of the guests was not unanimous as to the lighting condition of the hallway
adjacent to the mud room, everyone, including defendant Dean Franchi, was in agreement that
the light inside the mud room was turned off at the time of plaintiff’s fall. The photographs
submitted by the parties also demonstrate that the drop-off is not easily seen, even with sufficient
lighting. The testimony and photographs clearly demonstrate a question of fact of whether an
average user acting under the conditions existing when plaintiff approached the mudroom would
have been able to discover the drop-off upon casual inspection.4

        This case is distinguishable from Novotney, where we determined that summary
disposition was appropriate. In that case, plaintiff did not assert that the handicap ramp could not
be seen by an average person; she alleged only that she didn’t notice it even though it was
daytime. In the case now before us, plaintiff asserts that given the absence of lighting, the drop-
off could not be seen by an average person and presents evidence through the testimony of third
parties and photographs to support that assertion.

        Defendants also argue that the drop off or height differential was open and obvious
because plaintiff could have turned on a light switch that was located at the entry to the
mudroom that would have illuminated the mud room. However, this is not a duty question but is
instead a question of comparative negligence. See Lamp v Reynolds, 249 Mich App 591, 599-
600; 645 NW2d 311 (2002). The open and obvious doctrine focuses on the condition of the
premises and the hazard as they existed at the time the plaintiff encountered them. See
Novotney, 198 Mich App 475. There is no additional requirement that the plaintiff take
reasonable steps to improve the visibility of the alleged hazard. Defendants’ argument that
plaintiff should have discovered and turned on the light switch is not merely a statement that
plaintiff should have looked where she was going but is a statement that she should have altered
the premises’ condition by turning on the lights.




4
 Susan Blackwell and plaintiff testified that they were directed by Debra Franchi to put their
purses in the mud room. Debra Franchi testified that they went in on their own initiative.



                                                -3-
        Because the determination of whether defendants’ owed plaintiff a duty to warn of the
drop-off will depend on how the conflicting testimony regarding whether the drop-off was open
and obvious is resolved, the conflicting testimony must be submitted to the jury, and the trial
court’s grant of summary disposition to defendant was erroneous. See Bertrand, at 449 Mich at
617.

       Reversed and remanded. We do not retain jurisdiction.



                                                          /s/ Douglas B. Shapiro
                                                          /s/ Elizabeth L. Gleicher




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