                            STATE OF MICHIGAN

                            COURT OF APPEALS



CATHLEEN MARIE CRUCHON,                                              UNPUBLISHED
                                                                     May 24, 2016
               Plaintiff-Appellee/Cross-Appellant,

v                                                                    No. 326522
                                                                     Macomb Circuit Court
BARO MINI STORAGE,                                                   LC No. 2014-000998-NO

               Defendant-Appellant/Cross-
               Appellee,

and

NEW IMAGE LANDSCAPE LLC,

               Defendant.



Before: MURPHY, P.J., and CAVANAGH and RONAYNE KRAUSE, JJ.

PER CURIAM.

       Defendant, Baro Mini Storage, appeals by leave granted an order denying its motion for
summary disposition of plaintiff’s premises liability claim. We reverse. Plaintiff cross-appeals
the same order, which also dismissed her general negligence claim. We affirm.

        Plaintiff leased a storage unit at defendant’s facility. On February 21, 2014, defendant’s
owner, Donna Taylor, called plaintiff to advise her that part of the facility had flooded and asked
her to come and check her unit for damage. When plaintiff arrived, she noticed ice and snow in
the parking lot, but parked and exited her vehicle, walking toward the facility’s office. As she
was attempting to walk around a large sheet of ice, plaintiff slipped and fell. Thereafter, plaintiff
filed this action, alleging that she suffered injuries because defendant failed to properly maintain
its premises.

        Subsequently, defendant filed a motion for summary disposition pursuant to MCR
2.116(C)(10), arguing that this action should be dismissed because the icy condition was open
and obvious and no special aspects existed. In particular, defendant argued, plaintiff testified
that when she arrived at the facility she saw “sporadic ice, areas of ice, areas of clear pavement”
in the parking lot. She also testified that she was in the process of walking around a patch of ice

                                                -1-
when she slipped and fell. Because the icy condition of the parking lot was clearly visible, and
in fact seen by plaintiff, any danger posed by it was open and obvious. Further, defendant
argued, the icy condition was not “effectively unavoidable” and was merely a typical winter
condition in Michigan that did not pose an “unreasonably high risk of severe harm.” Plaintiff
could have chosen a non-icy path to the office, could have waited in her car while her unit was
checked by Taylor, or could have left the facility. Accordingly, defendant argued, the open and
obvious doctrine barred this action.

        Plaintiff responded to defendant’s motion for summary disposition, arguing that the open
and obvious doctrine did not apply because this was a general negligence claim. That is, this
case was based on the negligent conduct of defendant, not a defect in the premises, because
Taylor had demanded that plaintiff “drive to her hazardous lot, knowing full well the hazardous
conditions of it, and knowing the snow contractor did not come that day.” However, plaintiff
argued, even if considered a premises liability case, it was not barred by the open and obvious
doctrine because the dangerous icy condition was effectively unavoidable. First, Taylor had
threatened to break off the lock on plaintiff’s storage unit if she did not come to the facility.
And, second, the flood may have caused imminent damage to plaintiff’s valuable and priceless
property; thus, immediate attention to the matter was required. Accordingly, plaintiff argued,
defendant’s motion for summary disposition should be denied.

        Defendant replied to plaintiff’s response to its motion for summary disposition, arguing
that plaintiff’s complaint sounded solely in premises liability—not general negligence. In any
case, the law makes clear that general negligence does not apply where a plaintiff was injured
because of a condition on the land. Further, the open and obvious doctrine clearly barred this
case. Plaintiff admitted that the icy condition was obvious. And, contrary to plaintiff’s
argument, the ice was not effectively unavoidable. First, Taylor offered to check plaintiff’s unit
if she was unable to come to the facility and was even going to replace the lock—a lock for
which plaintiff did not even have a key. In any case, no heightened duty of care arises if one is
given a personal invitation to visit a business or if a plaintiff has a subjective need or desire to
use a defendant’s services. Second, as plaintiff admitted, the ice in the parking lot was
“sporadic,” meaning it did not cover the entire lot. Plaintiff could have chosen a path to the
office where there was no ice, she could have chosen not to exit her vehicle, or she could have
chosen not to come to the facility on that day. Under these circumstances, it is clear that the
patch of ice plaintiff fell on was not effectively unavoidable; thus, the open and obvious doctrine
barred this case.

        At the hearing on defendant’s motion, the trial court agreed that the icy condition was
open and obvious and that this was a premises liability case, not a general negligence case. The
court held, however, that special aspects existed because (1) there had been a flood on the
premises which jeopardized the contents of plaintiff’s storage unit so there was an urgency
associated with the circumstances, (2) it was evening, and (3) no one was directing her as to
where to park and walk. Accordingly, defendant’s motion for summary disposition of plaintiff’s
premises liability claim was denied, but plaintiff’s general negligence claim was dismissed. This
Court granted defendant’s application for leave to appeal and stayed further proceedings pending
this appeal.



                                                -2-
       Defendant argues that the open and obvious doctrine barred plaintiff’s premises liability
claim because no special aspects existed; thus, the trial court should have granted its motion for
summary disposition. We agree.

       This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Lakeview Commons v Empower Yourself, LLC, 290 Mich App 503, 506; 802 NW2d 712 (2010).
A motion brought under MCR 2.116(C)(10) tests the factual support of a plaintiff’s claim and
should be granted if, after consideration of the evidence submitted by the parties in the light most
favorable to the nonmoving party, no genuine issue regarding any material fact exists. Id.

        “In general, a premises possessor owes a duty to an invitee to exercise reasonable care to
protect the invitee 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). Generally,
however, a premises possessor is not required to protect an invitee from an open and obvious
danger on the land. Id. at 517. “[B]ut, 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.” Id. That is, liability will be imposed if special
aspects of the open and obvious condition “differentiate the risk from typical open and obvious
risks so as to create an unreasonable risk of harm.” Id. An open and obvious condition that is
effectively unavoidable or that imposes an unreasonably high risk of severe harm has such
“special aspects.” Id. at 517-518.

        Here, there is no dispute that the ice on which plaintiff fell was open and obvious.
However, the trial court concluded that special aspects existed which precluded the application
of the open and obvious doctrine. In reaching its conclusion, the court considered the following
circumstances: there was a flood on the premises; the contents of plaintiff’s storage unit could
have been damaged by the flood so there was an urgency associated with the circumstances; the
ice in the parking lot was sporadic, but it was evening which impacts visibility; and no one was
directing plaintiff to park or walk in any particular location. The court did not hold that the icy
condition imposed an unreasonably high risk of severe harm; rather, it appears the trial court
concluded that the icy condition was effectively unavoidable.

        In Hoffner v Lanctoe, 492 Mich 450; 821 NW2d 88 (2012), our Supreme Court
considered the circumstances in which an open and obvious condition is considered “effectively
unavoidable” so as to constitute a “special aspect” precluding the application of the open and
obvious doctrine. Id. at 465. The Court held: “[T]he 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.” Id. at 469. In reaching its decision,
the Hoffner Court rejected the notion that different invitees, such as those with a contractual
relationship, are owed a different or heightened duty of care by the premises owner. Id.

       Neither possessing a right to use services, nor an invitee’s subjective need or
       desire to use services, heightens a landowner’s duties to remove or warn of
       hazards or affects an invitee’s choice whether to confront an obvious hazard. To
       conclude otherwise would impermissibly shift the focus from an objective


                                                -3-
       examination of the premises to an examination of the subjective beliefs of the
       invitee. [Id. at 471.]

The Court reiterated that “exceptions to the open and obvious doctrine are narrow and designed
to permit liability for such dangers only in limited, extreme situations.” Id. at 472. Further: “An
‘effectively unavoidable’ hazard must truly be, for all practical purposes, one that a person is
required to confront under the circumstances.” Id.

         In this case, which is factually similar to the Hoffner case, plaintiff was injured as a result
of an avoidable open and obvious danger and there is no special aspect to the condition that
justifies the imposition of liability. Plaintiff testified that she observed the icy condition of the
parking lot and was attempting to walk around a large sheet of ice when she slipped and fell.
Contrary to plaintiff’s argument, as well as the trial court’s conclusion, plaintiff was not forced
to confront the risk; she was not trapped or “compelled by extenuating circumstances with no
choice but to traverse a previously unknown risk.” Id. at 473. And despite the fact that there
was possible flooding of plaintiff’s storage unit, Taylor had offered to check plaintiff’s storage
unit for damage and was willing to replace the lock on plaintiff’s unit if she did so. Further, once
plaintiff arrived at the facility and saw the icy condition of the parking lot, she could have
remained in her vehicle, given Taylor the key to her lock, and waited while Taylor checked her
storage unit for damage. Plaintiff also could have chosen to park in a different location and walk
a different, clear route to the entrance. And plaintiff could have simply decided to come back on
a different day. In any case, the icy parking lot was not “effectively unavoidable.” Plaintiff was
not required or compelled to confront the icy parking lot; she could have chosen not to. See id.
at 468-469. Plaintiff was simply confronted with typical icy conditions in a parking lot in
Michigan in the winter, which is a common occurrence. The circumstances presented here do
not demonstrate an extreme situation and clearly do not fall within the narrow exceptions to the
open and obvious doctrine. See id. at 472. Accordingly, the trial court’s decision denying
defendant’s motion for summary disposition of plaintiff’s premises liability claim is reversed.

        On cross-appeal, plaintiff argues that the trial court erred in dismissing her general
negligence claim. We disagree. We note, first, that it is questionable whether plaintiff even
pleaded a general negligence claim in her complaint. In any case, “[w]hen an injury develops
from a condition of the land, rather than emanating from an activity or conduct that created the
condition on the property, the action sounds in premises liability.” Woodman v Kera, LLC, 280
Mich App 125, 153; 760 NW2d 641 (2008), citing James v Alberts, 464 Mich 12, 18-19; 626
NW2d 158 (2001); see also Kachudas v Invaders Self Auto Wash, Inc, 486 Mich 913, 913-914;
781 NW2d 806 (2010). Here, plaintiff alleged that her injury arose from a condition on
defendant’s property—the icy parking lot—which led to her slip and fall. Accordingly, the law
applicable to premises liability claims governs this case. See Buhalis v Trinity Continuing Care
Servs, 296 Mich App 685, 691-692; 822 NW2d 254 (2012). The trial court’s order dismissing
plaintiff’s purported general negligence claim is affirmed.




                                                  -4-
        Reversed in part, affirmed in part, and remanded for entry of an order granting
defendant’s motion for summary disposition of plaintiff’s premises liability claim. We do not
retain jurisdiction.



                                                         /s/ William B. Murphy
                                                         /s/ Mark J. Cavanagh




                                             -5-
