            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



THOMAS BELMONT,                                                     UNPUBLISHED
                                                                    January 7, 2020
               Plaintiff-Appellant,

v                                                                   No. 344578
                                                                    Macomb Circuit Court
ST. JOHN MACOMB-OAKLAND HOSPITAL,                                   LC No. 2016-003827-NO

               Defendant-Appellee.


Before: FORT HOOD, P.J., and SAWYER and SHAPIRO, JJ.

PER CURIAM.

        In this premises liability action, plaintiff appeals as of right an order granting summary
disposition in favor of defendant. We reverse and remand.

                                 I. FACTUAL BACKGROUND

         This action arises out of injuries sustained by plaintiff when he slipped and fell on the
floor of defendant’s hospital while visiting his wife, who was a patient. Before plaintiff arrived
at his wife’s hospital room, his wife had bled onto the floor around the hospital bed. Plaintiff
testified that, as he walked into his wife’s hospital room, a housekeeper was leaving the room
with a mop in her hand. Plaintiff further testified that he noticed wetness around the bed, but he
did not approach the wet area. As plaintiff was walking into the room, his stepson, Michael
Sanders, who was already in the room, told plaintiff to be careful because the housekeeper had
just mopped the floor around the bed. After approximately 5 to 10 minutes, plaintiff and Sanders
started to walk out of the hospital room together. Plaintiff testified that Sanders walked out of
the room 4 feet ahead of him and used the same doorway. As plaintiff was leaving, he slipped
and fell near the threshold of the door, approximately 14 to 16 feet away from the bed.

        While plaintiff was on the ground, he noticed that the floor and the whole side of his arm
were wet. Plaintiff testified that there was not a puddle and he could not describe how big the
wetness on the floor was, but he noticed that the floor shined as though it were wet. Plaintiff was
certain that the threshold area of the door was dry when he first walked in. Eventually, plaintiff
concluded that the wetness that caused him to fall was from the housekeeper’s mop, either by
direct contact with the floor or from droplets of water that dripped onto the floor as the


                                                -1-
housekeeper was exiting the room. Plaintiff testified, however, that he did not actually see what
caused the wetness on the floor. Although there was a warning sign leaning against the wall in
the hallway outside the room, approximately 7 feet to the right of the door, plaintiff only
observed it after his fall and there was no indication as to when the sign was placed there. As a
result of the fall, plaintiff sustained a torn rotator cuff in his right shoulder.

         Plaintiff filed a complaint against defendant alleging negligence on the basis of premises
liability. Shortly thereafter, defendant filed a motion for summary disposition pursuant to MCR
2.116(C)(10), contending that the water that caused plaintiff to slip and fall was an open and
obvious condition of which plaintiff should have been aware. The trial court agreed, finding that
the wetness that caused plaintiff to fall was open and obvious, and that, upon casual inspection of
the area, an ordinary person would have foreseen the possibility of danger. Specifically, the trial
court found that the dangerous condition was open and obvious because plaintiff watched the
housekeeper leave the room with a mop, was warned by Sanders to be careful because the area
around the bed had just been mopped, and noticed that the area was wet after he fell. The court
also noted the wet floor sign outside the room. Defendant now appeals the trial court’s
determination, and we reverse.

                                         II. ANALYSIS

        A trial court’s decision to grant a motion for summary disposition is reviewed de novo.
Petersen Fin LLC v Kentwood, 326 Mich App 433, 441; 928 NW2d 245 (2018). A motion under
MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Corley v Detroit Bd of Ed, 470
Mich 274, 278; 681 NW2d 342 (2004) (quotation marks and citation omitted). In reviewing a
motion under MCR 2.116(C)(10), “a court considers the entire record in the light most favorable
to the party opposing the motion, including affidavits, pleadings, depositions, admissions, and
other evidence submitted by the parties.” Id. Summary disposition is appropriate only when
“there is no genuine issue of material fact and the nonmoving party is entitled to judgment as a
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 the record leaves open an issue on which reasonable
minds might differ.” Yoches v Dearborn, 320 Mich App 461, 479; 904 NW2d 887 (2017)
(quotation marks and citation omitted).

        “In a premises liability action, 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) (quotation marks and citations
omitted). In this case, it is not disputed that plaintiff was a business invitee. “[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.” Hoffner v Lanctoe, 492 Mich 450, 460; 821 NW2d
88 (2012). As explained by this Court in Arias v Talon Dev Group, Inc, 239 Mich App 265,
266-267; 608 NW2d 484 (2000), a landowner is subject to liability for injuries caused to an
invitee by a condition on the land when the landowner:

       (a) knows, or by the exercise of reasonable care would discover, the condition,
       and should realize that it involves an unreasonable risk of harm to such invitees,
       (b) should expect that they will not discover or realize the danger, or will fail to


                                                -2-
       protect themselves against it, and (c) fails to exercise reasonable care to protect
       them against the danger. [Quotation marks and citation omitted.]

        A possessor of land, however, does not owe a duty to protect invitee’s from dangerous
conditions that are open and obvious because invitees are expected to take reasonable measures
to avoid potential hazards. Hoffner, 492 Mich at 460-461. A dangerous condition 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.” Novotney v Burger King Corp (On
Remand), 198 Mich App 470, 475; 499 NW2d 379 (1993). Thus, determining whether a danger
is open and obvious depends on the objective nature of the dangerous condition itself, instead of
an invitee’s subjective awareness of the potential hazard at the time that the injury occurred. See
id. at 474-475.

        In this case, at the very least, there were genuine issues of material fact with respect to
whether the moisture on the ground that caused plaintiff to slip was open and obvious. We are
not convinced that, simply because plaintiff saw a housekeeper exit the hospital room with a mop
as he entered, any wetness in the room was open and obvious approximately 5 to 10 minutes
later when he left. Plaintiff testified that he was certain the floor at the entrance to the hospital
room was dry when he entered, and that he did not see any wetness on the floor as he was
leaving. Plaintiff and his son only noticed wetness upon examination of the floor after plaintiff
fell, and we certainly decline to hold that the wetness of the floor was open and obvious simply
because plaintiff got wet. Moreover, although Sanders warned plaintiff that the housekeeper had
mopped around the hospital bed, plaintiff ultimately fell 14 to 16 feet away from that bed.1
Finally, that a caution sign was present outside the room in which plaintiff fell may go toward
the question of whether defendant exercised reasonable care to avoid liability, but we decline to
conclude that the sign alone rendered the moisture that caused plaintiff to fall open and obvious,
particularly given plaintiff’s testimony that the sign was not even fully set up, but instead was
leaning against a wall.

       We note defendant’s reliance on Lugo v Ameritech Corp, Inc, 464 Mich 512, 514-515,
521; 629 NW2d 384 (2001), wherein the Michigan Supreme Court found a “common pothole in
a parking lot” to be open and obvious after the plaintiff testified that she did not see the pothole
because she was distracted, and her testimony that “nothing would have prevented her from
seeing the pothole” belied her assertion on appeal that the pothole was obscured. The facts are
quite different in this case, where plaintiff’s testimony suggests that the wetness of the floor
might not have been visible until after his fall warranted a closer inspection. Moreover, unlike
Lugo, there was no testimony in this case that plaintiff was distracted or otherwise not paying a
reasonable amount of attention to his surroundings. Id. at 514-515.

        Many of the unpublished cases relied upon by defendant are distinguishable for the same
reason, as most of them involve direct testimony that a condition could be or actually was readily
observable. In this case, that plaintiff observed a small amount of wetness after falling does not


1
  Notably, plaintiff did initially see the wetness around the hospital bed, and noted at his
deposition that the wetness extended only 1½ feet around the bed.



                                                -3-
itself preclude the possibility that the wetness would not have been apparent to an average person
upon casual inspection. Defendant essentially suggests that all plaintiffs that experience or view
wetness after slipping on a wet floor are summarily precluded from bringing negligence actions
because, solely by virtue of viewing the wetness after the fact, the condition is rendered open and
obvious. We decline to adopt that standard, as it is inconsistent with settled law: the danger must
be visible to the average person of ordinary intelligence upon casual inspection. Novotney, 198
Mich App at 475.2

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.



                                                            /s/ Karen M. Fort Hood
                                                            /s/ Douglas B. Shapiro




2
  The dissent argues that plaintiff should have deduced that the any part of the floor in the
hospital room could be wet since the area around the bed had been mopped. However, the
dissent does not point to any evidence that the water was actually visible to someone walking
which is the sine qua non of a hazard being open and obvious. Even assuming that plaintiff
could be held to a standard of deducing that walking 15 feet away from the mopped area
presented a hazard, the fact remains that if the water was not visible to someone walking, he
would not know to avoid that particular spot. No one testified that the water was visible on
casual inspection. And the water was in the only exit from the room; plaintiff had no choice but
to exit there.



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