                            STATE OF MICHIGAN

                            COURT OF APPEALS



DAWN REIMER,                                                       UNPUBLISHED
                                                                   July 24, 2018
               Plaintiff-Appellant,

v                                                                  No. 338117
                                                                   Oakland Circuit Court
REDCOAT TAVERN, INC.,                                              LC No. 2016-153324-NO

               Defendant-Appellee.


Before: SWARTZLE, P.J., and SHAPIRO and BOONSTRA, JJ.

SHAPIRO, J. (dissenting).

       I respectfully dissent.

        Defendant’s employee power washed the area behind the restaurant’s rear door with a
solution of water and a “penetrating solvent” marketed under the name, Sunburst Heavy Duty
Kitchen Degreaser. According to the manufacturer, the product is a “versatile all-purpose heavy
duty degreaser that removes even burned-on grease from grills, fryers, hoods, ovens, walls and
floors.” The instructions for use of the degreaser stated that one cup of the degreaser should be
mixed with five gallons of water when cleaning floors. The employee testified that he mixed a
half gallon of the solvent in a five-gallon bucket of water, eight times the proper amount of
solvent.

       The open and obvious hazard in this case was a puddle of water. A thin puddle of only
water outside on flat concrete is not a hazard.1



1
  Defendant’s employee agreed in his deposition that “water by itself is not slippery on the
concrete.” A Westlaw search for slip and fall cases involving puddles revealed a great number
of cases in which a puddle of water on the interior finished floor of a building was considered a
hazard, but only one where it was even claimed that water on a hard outdoor surface was
hazardous. Further, the example in Lugo v Ameritech Corp, Inc, 464 Mich 512, 518-519; 629
NW2d 384 (2001), of a water puddle presenting a danger concerned an interior surface. There is
an obvious difference between a puddle of water on tiled, linoleum or other interior finished
flooring and a puddle of water outside on a flat concrete surface.



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         What made this puddle a danger was that it was not what it appeared to be. Plaintiff saw
the water and reasonably did not think it was hazardous. She could not have seen that there was
something mixed into the water, for the simple reason that no one could have seen it. The
employee in question agreed in his testimony that “when you put it [on] the ground, the chemical
and the water mixed together, it looks just like water.” Perhaps more to the point, plaintiff could
not have observed that the slippery material was present in an amount eight times greater than
what the directions called for; and defendant has not directed us to any evidence that she could
have. To suggest that it is unreasonable to walk across a puddle of water on a flat concrete
surface is, in my view, ridiculous. The majority concludes that because plaintiff saw a puddle of
what she observed to be water, she should have reached the conclusion that the puddle might
contain some other liquid that rendered the puddle hazardous. However, the open and obvious
rule is based on what is observable on casual observation or at least objectively demonstrated by
weather conditions. It does not require that a reasonable person engage in pure speculation about
hazards that are not observable at all. The majority avoids this fact by relying on the employee’s
testimony that he was still power washing when plaintiff arrived. But this ignores plaintiff’s
testimony that there was no power washing taking place when she arrived and when she walked
through the puddle. Thus, in reaching its conclusion, the majority misapplies the fundamental
rule that in considering a motion filed under MCR 2.116 (C)(10), all the evidence must be
viewed in the light most favorable to the non-movant.

        It is undisputed that what was observable to plaintiff was a puddle of water on outdoor
concrete. There was no reason for plaintiff to avoid that puddle. She had no way of knowing
that the puddle also contained a degreaser—in an amount eight times greater than proper. I
would reverse and remand for trial.



                                                            /s/ Douglas B. Shapiro




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