                           STATE OF MICHIGAN

                            COURT OF APPEALS



CHERYL DORSEY,                                                        UNPUBLISHED
                                                                      April 13, 2017
               Plaintiff-Appellant,

v                                                                     No. 330690
                                                                      Oakland Circuit Court
TAUBMAN AUBURN HILLS ASSOCIATES, a                                    LC No. 2014-142098-NO
Limited Partnership,

               Defendant-Appellee.


Before: O’CONNELL, P.J., and GLEICHER and BOONSTRA, JJ.

PER CURIAM.

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

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

       This case arises out of a trip and fall outside of the entrance to the Great Lakes Crossing
Mall (“the Mall”) owned by defendant. On August 6, 2013, plaintiff and her friend Vanessa
Clark went to the Mall to pick up carryout food, arriving at approximately 1:45 p.m. While
walking to the entrance to the Mall, plaintiff’s left shoe got caught in a strip of sealant that had
been placed in a seam of the concrete sidewalk. She fell and was injured.

         Plaintiff filed suit, alleging that defendants improperly repaired the sidewalk joint with a
pliable sealant or caulk that compressed when she stepped on it and caused her fall. Plaintiff
testified in her deposition that she thought, before she stepped on the repaired area, that the filler
material was solid. Defendant moved for summary disposition pursuant to MCR 2.116(C)(10),
arguing that plaintiff’s claim was barred because the condition was open and obvious and there
were no special aspects about the condition to prevent application of the open and obvious
doctrine. In her answer, plaintiff included a report from a proposed expert witness, Steven J.
Ziemba of Comprehensive Risk Analysis, Inc., who examined the scene after the accident. The
report indicated that “[t]he excessive width and depth of the intersecting concrete joints created a
hole or unevenness in the pavement” and that “[t]he amount of soft caulking compound used
failed to fill the gap or provide sufficient support for normally imposed pedestrian traffic.”
Ziemba further stated in his report that there was “an intersection of joints creating a wide gaping
discontinuity up to two inches in width” at the accident site and that “[t]he defendant chose to

                                                 -1-
use a caulking compound suitable for repairing small sidewalk cracks” to address the issue.
Ziemba opined that “[b]ecause cured caulk remains soft, spongy and easily punctured, caulk
should not be used to fill wide joints or cracks” and that “[c]racks or wide sidewalk joints that
exceed ¾ inches must be filled with a cement product, such as a concrete patch or mortar.”
Ziemba also opined that “[f]ailure to properly maintain this section of pavement created an
unreasonable risk of harm for business invitees such as [plaintiff].” Defendant filed a motion in
limine to preclude Ziemba from testifying as an expert witness under MRE 702, arguing that
expert testimony was not necessary to resolve the issue of openness and obviousness.

        After a hearing, the trial court granted defendant’s motion for summary disposition in a
written opinion, concluding that the condition was open and obvious and that the condition
created a risk of harm only because plaintiff failed to realize its danger. The trial court did not
explicitly rule on defendant’s motion in limine. Plaintiff filed a motion for reconsideration,
which the trial court denied. This appeal followed.

                                 II. STANDARD OF REVIEW

        “This Court reviews the grant or denial of summary disposition de novo to determine if
the moving party is entitled to judgment as a matter of law. In making this determination, the
Court reviews the entire record to determine whether defendant was entitled to summary
disposition.” Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). “Summary
disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any
material fact and the moving party is entitled to judgment as a matter of law.” West v Gen
Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). A motion pursuant to
MCR 2.116(C)(10) is reviewed “by considering the pleadings, admissions, and other evidence
submitted by the parties in the light most favorable to the nonmoving party.” Latham v Barton
Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). “The moving party must specifically
identify the matters that have no disputed factual issues, and it has the initial burden of
supporting its position by affidavits, depositions, admissions, or other documentary evidence.
The party opposing the motion then has the burden of showing by evidentiary materials that a
genuine issue of disputed material fact exists.” Bronson Methodist Hosp v Auto-Owners Ins Co,
295 Mich App 431, 440-441; 814 NW2d 670 (2012) (citations omitted). “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.” West, 469 Mich at 183.

        “The threshold issue of the duty of care in negligence actions must be decided by the trial
court as a matter of law.” Riddle v McLouth Steel Prod Corp, 440 Mich 85, 95; 485 NW2d 676
(1992). “Because the issue of the openness and obviousness of a hazard is an ‘integral part’ of
the question of duty, establishing whether a duty exists in light of the open and obvious nature of
a hazard is an issue within the province of the court.” Hoffner v Lanctoe, 492 Mich 450, 476;
821 NW2d 88 (2012) (footnotes omitted). “[I]t is only when an open and obvious hazard is in
some manner unreasonable that there is a question of fact for the jury.” Id. (footnote omitted).
We review matters of law de novo. Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 477;
760 NW2d 287 (2008).




                                                -2-
                                          III. ANALYSIS

       On appeal, plaintiff argues that the trial court erred by granting summary disposition
based on the open and obvious doctrine. We disagree.

        “In general, a premises possessor owes a duty to an invitee to exercise reasonable care to
protect the invitee[1] from an unreasonable risk of harm caused by a dangerous condition on the
land.” Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). However, a
premises possessor generally does not have a duty to protect an invitee from open and obvious
dangers. Id. at 516, 517. “When a potentially dangerous condition is wholly revealed by casual
observation, the premises owner owes its invitees no duty to warn of the danger’s existence.”
Price v Kroger Co of Mich, 284 Mich App 496, 500; 773 NW2d 739 (2009) (quotation marks
and citation omitted). In determining whether a danger is open and obvious, the question is
whether “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, 198 Mich
App 470, 475; 499 NW2d 379 (1993). This is an objective standard, calling for an examination
of the objective nature of the condition of the premises at issue.” Hoffner v Lanctoe, 492 Mich
450, 461; 821 NW2d 88 (2012) (quotation marks and citation omitted). “Because the test is
objective, this Court look[s] not to whether plaintiff should have known that the [condition] was
hazardous, but to whether a reasonable person in his position would foresee the danger.” Joyce v
Rubin, 249 Mich App 231, 238-239; 642 NW2d 360 (2002) (quotation marks and citation
omitted; alterations in the original).

        Notwithstanding that a hazard may be discernable by a reasonable person in plaintiff’s
position, “if special aspects of a condition make even an open and obvious risk unreasonably
dangerous, the premises possessor has a duty to undertake reasonable precautions to protect
invitees from that risk.” Lugo, 464 Mich at 517. “The special aspects that cause even open and
obvious conditions to be actionable are those that make the conditions ‘effectively unavoidable,’
or those that ‘impose an unreasonably high risk of severe harm.’ ” Slaughter, 281 Mich App at
478. “[T]he standard for ‘effective unavoidability’ is that a person, for all practical purposes,
must be required or compelled to confront a dangerous hazard,” and “situations in which a
person has a choice whether to confront a hazard cannot truly be unavoidable, or even effectively
so.” Hoffner, 492 Mich at 469. “[N]either a common condition nor an avoidable condition is
uniquely dangerous.” Id. at 463.

       Plaintiff tripped on a joint between adjacent slabs of a concrete walkway that had been
repaired with some type of pliable caulk or sealant material. These sorts of joints and cracks in
concrete sidewalks and walkways, repaired with a variety of materials, are an “everyday
occurrence,” much like potholes in a parking lot. Lugo, 464 Mich at 523. It is common to notice


1
  That plaintiff was a business invitee of the Mall is not in dispute; plaintiff went to the Mall with
Clark for the purpose of purchasing carry-out food and was therefore on the premises for a
business purpose. Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 597; 614 NW2d 88
(2000).


                                                 -3-
unevenness and other imperfections in the walking surface, caused by various features or
conditions of the land, at the joints between slabs of a concrete sidewalk or walkway. A
reasonably prudent person would be aware that joints, cracks, or other uneven areas of a
sidewalk can present a tripping hazard. See, e.g., Weakley v City of Dearborn Hts, 240 Mich
App 382, 383-384, 385; 612 NW2d 428 (2000). Based on the photographs submitted into
evidence by both parties, the repaired joint in the sidewalk at issue in this case was clearly
visible, and the material used to fill and repair the gap was of a noticeably different color than
the surrounding concrete. The pictures also show the unevenness of the slabs and joint area, as
well as a vertical height difference between the top of the concrete slabs and the surface of the
material used to fill the joint. Indeed, plaintiff admitted that she saw the repaired area as she was
walking, yet proceeded to step on it. In sum, like ordinary steps and potholes, deteriorating
sidewalk joints and various imperfections in a concrete walking surface are ordinary features that
people frequently encounter during the course of their everyday lives and that can be easily
observed by a reasonably prudent person. See Lugo, 464 Mich at 523; Bertrand v Alan Ford,
Inc, 449 Mich 606, 616-617; 537 NW2d 185 (1995). The trial court did not err by holding that
the condition was open and obvious, because an average user with ordinary intelligence could
have discovered, after a casual inspection, the presence of the repaired area and the
accompanying risk of tripping. Novotney, 198 Mich App at 475.

        Additionally, there were no special aspects of the type that would remove the condition
from the open and obvious doctrine. The photographs submitted into evidence show that the
repaired joint was in the middle of a wide-open area and could have been avoided with minimal
effort. Thus, although plaintiff thought that the joint was filled with a solid non-pliable material,
plaintiff was not “compelled” to step on the joint, and the repaired joint was clearly not
“effectively unavoidable.” Hoffner, 492 Mich at 469; see also Joyce, 249 Mich App at 242-243.
There was nothing about the surrounding circumstances that would have made it difficult for
plaintiff to successfully navigate the small repaired area. See Bertrand, 449 Mich at 623-624.
Furthermore, unlike the risk of harm presented by “an unguarded thirty foot deep pit,” the risk of
harm presented by tripping on an ordinary sidewalk joint repair like the one at issue here is not a
“substantial risk of death or severe injury.” Lugo, 464 Mich at 518. Common, avoidable
conditions are not uniquely dangerous. Hoffner, 492 Mich at 463.

        Although plaintiff argues that she thought that the filler material was solid rather than
pliable and did not realize that her foot would sink in, there was nothing hiding the nature of the
filler material or preventing her from discovering its pliable nature. Cf. Hughes v PMG Bldg,
Inc, 227 Mich App 1, 11-12; 574 NW2d 691 (1997) (where the stability of the support for an
overhang was obscured from sight). There also were bumps, imperfections, and signs of
unevenness in the surface that were visibly present. As previously stated, the test for whether a
condition is open and obvious is an objective one, Hoffner, 492 Mich at 461, and a reasonably
prudent person could have seen that there was some risk of tripping at this joint and avoided it.
Moreover, it is not “unusual” to repair the joints of a sidewalk with materials like pliable caulk or
sealant or for repaired sidewalk joints to be somewhat uneven, and this factor therefore does not
negate the applicability of the open and obvious doctrine. See Lugo, 464 Mich at 522.

        Even after giving plaintiff the benefit of reasonable doubt, reasonable minds could not
differ in concluding that an ordinary person’s casual inspection would have revealed the
condition of the sidewalk area and that the repair was therefore open and obvious. West, 469
                                                -4-
Mich at 183. An unreasonably dangerous hazard “must be more than theoretically or
retrospectively dangerous, because even the most unassuming situation can often be dangerous
under the wrong set of circumstances.” Hoffner, 492 Mich at 472. Moreover, even accepting the
evidence in Ziemba’s report as true, that the repair should have been made with a cement product
rather than caulk because of the size of the crack, the report does not alter our conclusion.
Plaintiff concedes that Ziemba’s legal conclusion that the sealant upon which plaintiff tripped
was unreasonably dangerous was improper and objectionable. See Keywell and Rosenfeld v
Bithell, 254 Mich App 300, 338; 657 NW2d 759 (2002). Similarly, Ziemba’s conclusions that
the hazard was not “cognizable, detectable, or observable upon casual inspection by ordinary
citizens” also was improper because Ziemba had no “specialized knowledge” of the hazard that
would place him in a superior position to the trial court to determine whether the legal criteria for
openness and obviousness had been satisfied. Id. And nothing in Ziemba’s report, even viewed
in the light most favorable to the plaintiff, created a genuine issue of material fact regarding the
open and obvious nature of the hazard, so as to prevent the trial court from deciding the issue as
a matter of law. Hoffner, 492 Mich at 476. Our conclusion to uphold the trial court’s
determination is therefore not altered by Ziemba’s report.

       Finally, the fact and severity of plaintiff’s injury is “immaterial to whether an open and
obvious danger [was] . . . unreasonably dangerous.” Lugo, 464 Mich at 518 n 2. Defendant
simply did not have a duty to protect plaintiff from this open and obvious condition. Id.
Accordingly, summary disposition was proper under MCR 2.116(C)(10) because there is no
genuine issue of material fact regarding whether the condition at issue was open and obvious,
and defendant is entitled to judgment as a matter of law. Latham, 480 Mich at 111; West, 469
Mich at 183.

       Affirmed.



                                                              /s/ Peter D. O’Connell
                                                              /s/ Mark T. Boonstra




                                                -5-
