                          STATE OF MICHIGAN

                             COURT OF APPEALS



PETER T. MACASKILL, Personal Representative                         UNPUBLISHED
of the ESTATE OF KAREN A. MACASKILL,                                March 5, 2015

               Plaintiff-Appellant,

V                                                                   No. 319297
                                                                    Macomb Circuit Court
THE KROGER COMPANY and KROGER                                       LC No. 2013-001126-NO
LIMITED PARTNERSHIP,

               Defendants,

and

THE KROGER COMPANY OF MICHIGAN,

               Defendant-Appellee.



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

PER CURIAM.

       Plaintiff Peter MacAskill, as personal representative of the estate of his deceased wife
Karen MacAskill, appeals by right from the trial court order that granted summary disposition in
favor of defendant Kroger Company of Michigan (Kroger) on his claims of negligence and
premises liability. We affirm the trial court’s grant as to the negligence claim, but reverse and
remand as to the premises liability claim.1

         Defendant is a large supermarket chain that operates many stores in Michigan. On
August 15, 2012, Peter drove Karen to their local Kroger to go grocery shopping. It is
undisputed that Karen was a business invitee. The incident occurred at the main, but not only
entrance to the store, which was served by a double-width automatic sliding door. The parking
lot is gray asphalt. An area of the asphalt is marked with yellow stripes. This area is directly in


1
 We review de novo a trial court’s grant of summary disposition. See Ernsting v Ave Maria
College, 274 Mich App 506, 509; 736 NW2d 574 (2007).



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front of the doorway, covers the full width of the double doors, and extends out about 15 feet
into the parking lot. It is marked with yellow stripes to indicate its designation as an area where
cars may drop off passengers, but not park, and as the walkway into the store. Defendant agrees
that this area is often used to drop off and pick up passengers, particularly customers who are
older or have difficulty walking.

        Peter pulled his car into the yellow-striped area to drop off Karen before he went to
search for a parking space.2 As Karen, age 69, closed the car door and turned from the car to
walk toward the store entrance, she tripped on a hose that an employee had dragged across the
entire width of the entryway and then partially covered with a mat.3 She fell, suffering serious
injuries that resulted in her death. Her estate brought a wrongful death suit pursuant to MCL
600.2922.

         In granting defendant’s motion for summary disposition, the trial court found that the
partially obscured hose was an open and obvious hazard and, therefore, defendant’s duty to keep
the premises reasonably safe for its customers did not apply to the hose. Accordingly, the court
dismissed plaintiff’s premises liability claim. The trial court also rejected plaintiff’s negligence
claim, finding that it properly sounded in premises liability, a conclusion we must affirm in light
of this Court’s recent decision in Jahnke v Allen, ___ Mich App ___; ___ NW2d ___ (December
16, 2014; Docket No. 317625), lv pending, slip op at 2-3 (“A plaintiff cannot avoid the open and
obvious doctrine by claiming ordinary negligence, when the facts only support a premises
liability claim”).4

        On the date in question, Kroger kept flowers for sale all along the front wall outside the
store. Just minutes before the MacAskills arrived, a manager asked a 16-year-old grocery bagger
to water these flowers. The bagger had never performed that task before. He connected a hose
from a spigot in the area where bottles are returned and ran it outside through a door used by



2
  Kroger employees testified that cars routinely pull up into that entry area so that the driver may
drop off a passenger before locating an available parking spot. Defendant does not argue, at least
for purposes of its summary disposition motion, that this practice is improper or unforeseeable.
3
  The events giving rise to this case were videotaped by a store security camera and have been
viewed by this Court. The factual recitation herein is derived from that video and the depositions
of Kroger employees.

4
  In the instant case, plaintiff’s complaint contained the assertion that “employees and/or agents
of Kroger . . . negligently created a hidden trip hazard by placing a hose under a mat very close
to the entrance of the store . . . . [This] created an unreasonably dangerous trip hazard that Mrs.
MacAskill encountered as she was simply attempting to enter the store.” The complaint
contained two causes of action, the first captioned “Premises Liability” and the second
“Negligence.” The complaint also demanded a trial by jury as guaranteed by the Article 1, §14
of the Michigan Constitution.




                                                -2-
employees only and onto the asphalt. The hose was approximately ¾ of an inch in diameter.
The bagger extended the hose to the flowers by laying it across a substantial part of the front of
the store including the entire yellow-striped entryway.

        After extending the hose, the bagger went inside the store and returned with a gray floor
mat which he placed over a portion of the hose within the yellow-striped entryway. However,
rather than covering the entire length of hose that ran across the marked entryway, he placed the
mat in such a fashion as to cover approximately 80% of the hose crossing the entryway, leaving a
short section of hose exposed within the entryway on either side of the mat. The bagger agreed
that partially covering the hose “obviously ma[d]e it harder to see a hose running across the
entrance to the store.”

         A few minutes later, the MacAskills pulled into the marked entryway in their minivan
and Peter dropped Karen off. According to the testimony of the Kroger employee who viewed
the video and photos, Karen was “close” to the hose when she got out of the front passenger seat
of the minivan and took only one or two steps before tripping on the hose. This employee also
testified that Karen was facing the front door when she fell and appeared to be looking where she
was going. This is consistent with our viewing of the videotape.

        A Kroger employee who viewed the videotape testified testified that Karen “stepped out
of the vehicle, put one foot down, went to take the second step and that’s when she fell.” Karen
suffered multiple injuries and shortly thereafter died from complications.

       While we agree with the trial court that this case sounds in premises liability, we
conclude that under the unusual circumstances presented here, there is a question of fact whether
the hazard was open and obvious, i.e., “whether a reasonable person in plaintiff’s position”
would have seen and avoided the hose.5 Watts v Michigan Multi-King, Inc, 291 Mich App 98,
102-103; 804 NW2d 569 (2010); Slaughter v Blarney Castle, 281 Mich App 474, 479; 760
NW2d 287 (2008).

       It cannot be seriously disputed that it would be unexpected to encounter a garden hose on
the walkway into a supermarket. We find no cases involving similar circumstances and this case
bears no resemblance to the many cases in which a plaintiff failed to keep watch for routinely


5
  The test is what a reasonable person would have observed and done upon exiting a vehicle in
the location from which the MacAskill vehicle was located. Accordingly, we have not
considered whether she had any personal limitations on her ability to observe, but only the limits
faced by anyone exiting a car at that particular position. The dissent observes that other store
patrons did not trip on the hose, though conceding that this is not dispositive. Critically, all of
those individuals approached the entryway from a far greater distance thereby allowing
observation over a much wider space and for a far longer time than anyone actually situated in
this plaintiff’s position, which defendant concedes was a proper point of exit from a vehicle.
Notably, the trial court never concluded that the hose would be readily apparent to someone in
plaintiff’s position, stating rather that “[t]he hose is clearly visible from a substantial distance
away” a position that plaintiff was never in.



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present conditions such as potholes or ice on cold days. See, e.g., Hoffner v Lanctoe, 492 Mich
450; 821 NW2d 88 (2012). Such conditions present daily hazards in Michigan. Id. at 454. And,
even if a hose, fully exposed in such an inappropriate location, would be considered open and
obvious, such a conclusion cannot be reached as a matter of law where the portion of the hose in
the entryway was largely camouflaged by the mat that covered most, but not all of it.

        We affirm the dismissal of plaintiff’s negligence claim, but reverse and remand for trial
on the premises liability claim. We do not retain jurisdiction.



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




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