                           STATE OF MICHIGAN

                            COURT OF APPEALS



GAIL A. ANDERSON,                                                  UNPUBLISHED
                                                                   January 27, 2015
                Plaintiff-Appellee,

v                                                                  No. 318532
                                                                   Genesee Circuit Court
SEARS ROEBUCK AND COMPANY,                                         LC No. 12-098914-NO

                Defendant-Appellant.


Before: MURRAY, P.J., and SAAD and K. F. KELLY, JJ.

PER CURIAM.

        Defendant appeals by leave granted on remand from the Michigan Supreme Court1 an
opinion and order denying its motion for summary disposition in this premises liability action.
We reverse and remand for entry of an order granting defendant’s motion for summary
disposition.

        This case arises from an incident in which plaintiff fell after stepping on a curb at the
edge of a large portion of deteriorated curb of a median in the parking lot of defendant’s store.
Defendant argues that the trial court erred in denying its motion for summary disposition because
the deteriorated curb was open and obvious, and there were no special aspects of the deteriorated
curb that rendered it unreasonably dangerous.

        Defendant moved for summary disposition under MCR 2.116(C)(10). This Court
reviews a trial court’s decision on a motion for summary disposition de novo. Fed Nat’l Mtg
Ass’n v Lagoons Forest Condo Ass’n, 305 Mich App 258, 263; 852 NW2d 217 (2014) (citation
omitted). Under MCR 2.116(C)(10), “[s]ummary disposition is appropriate if there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law.” Id.
(citation omitted). The trial court reviews the evidence, including pleadings and admissions, in a
light most favorable to the nonmoving party to determine whether there is a genuine issue of
material fact. Id. “A genuine issue of material fact exists when, after viewing the evidence in




1
    See Anderson v Sears Roebuck and Co, 496 Mich 854; 847 NW2d 244 (2014).

                                               -1-
the light most favorable to the nonmoving party, the record leaves open an issue upon which
reasonable minds may differ.” Id. at 263-264.2

        “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) (citation and quotation marks
omitted). The parties do not dispute the fact that plaintiff was an invitee on defendant’s
premises. “[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.” Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 477-478; 760 NW2d 287 (2008)
(citations and quotation marks omitted). A premises possessor breaches its duty if a dangerous
condition exists on the land and the premises possessor “knows or should know of a dangerous
condition on the premises of which the invitee is unaware and fails to fix the defect, guard
against the defect, or warn the invitee of the defect.” Hoffner v Lanctoe, 492 Mich 450, 460; 821
NW2d 88 (2012).

        The duty to protect an invitee from an unreasonable risk of a dangerous condition does
not exist if the dangerous condition is so obvious that the invitee should reasonably be expected
to discover the condition. Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384
(2001). “A condition is open and obvious if an average user with ordinary intelligence [would]
have been able to discover the danger and the risk presented upon casual inspection.” Bialick v
Megan Mary, Inc, 286 Mich App 359, 363; 780 NW2d 599 (2009) (citation and quotation marks
omitted, alteration in original). Thus, the test for whether a dangerous condition is open and
obvious is an objective one. See id.

        In Lugo, the plaintiff fell after tripping over a pothole on the defendant’s premises. Lugo,
464 Mich at 514. There was nothing that would have prevented the plaintiff from noticing the
pothole. Id. at 514-515. The Michigan Supreme Court held that the dangerous condition was
open and obvious because the dangerous condition was an ordinary pothole in a parking lot. Id.
at 520-521. Although the plaintiff argued that the moving cars in the parking lot were a
distraction, the Michigan Supreme Court held that there was nothing “usual” about cars
travelling in a parking lot that would preclude application of the open and obvious doctrine. Id.
at 522.

        The deteriorated curb on the median in defendant’s parking lot was open and obvious
because an average user of the parking lot with ordinary intelligence would have discovered,
upon casual inspection, the danger of walking on the edge of the deteriorated portion of the curb.
Plaintiff explained in her deposition that she stepped on the edge of the deteriorating portion of
the curb:


2
  Curiously, defendant cites to vintage cases—circa 1982 and before—to argue what the
appropriate summary disposition standards are under the 1985 court rules. The standard set forth
in cases like Durant v Stahlin, 375 Mich 628; 135 NW2d 407 (1965), that the court must be
satisfied that it would be impossible for the claim asserted to be supported at trial, is no longer
good law. Smith v Globe Life Ins Co, 460 Mich 446, 455 n 2; 597 NW2d 28 (1999).

                                                -2-
               Q. So actually your foot, your left foot did not immediately go into the
       hole that we see in Exhibit G or the photograph that is going to be Exhibit E?

              A. My foot was on -- the hole is there. My foot, my one foot was on one
       side. And my other foot was on the side of it. So if you want to say -- I’m not
       sure how to answer that.

              Q. Is your testimony -- just maybe I’m confused. Maybe I’m asking bad
       questions. But your right foot is on the curb? You’re [sic] left foot goes on top of
       the median? Is your testimony then --

              A. No. My right foot goes on top of it. You step up on the curb. And
       then when I put my left foot down that broken area was there.

               Q. Okay.

               A. And then I went into the street.

               Q. The broken area, is that where your foot landed though?

               A. It didn’t land, it landed -- well, I don’t know. The broken area is here.
       It landed right next to it or near it.

               Q. Okay.

               A. And, you know, not in the center of it. On the edge of it.

               Q. Is there a particular reason why you didn’t notice the broken area prior
       to the incident?

               A. Where I was coming from you can’t see it.

               Q. How tall are you?

               A. 5’2.

              Q. Is your testimony when you stepped up on that curb you couldn’t see
       the broken area?

               A. I didn’t notice the, I didn’t notice like the whole area. No, I didn’t
       notice the whole area. My foot wasn’t near that. My foot was on the edge of it.
       [Emphasis added.]

It is not clear whether plaintiff’s fall caused additional deterioration in the curb. However, a
photograph plaintiff marked during her deposition shows that plaintiff placed her left foot
directly on the edge of the hole in the curb. The photograph also depicts a hole in the curb of the
median in the parking lot, which is clearly visible. The curb surrounding the median was painted
yellow, which plaintiff admitted indicates caution. A reasonable person would have observed
the yellow curb and the deteriorating condition of the curb, and would have known that stepping
on the edge of deteriorating concrete in a curb could lead to further weakening of the curb. See
                                                -3-
Lugo, 464 Mich at 520-521. Even if plaintiff believed that the portion of the curb on the edge of
the hole was harmless, a reasonable person would have been on notice that the area was weak
and could crumble. See id. And, even if plaintiff stepped solely on the edge of the curb and not
onto the edge of the curb immediately adjacent to the hole in the concrete, the dangerous
condition of the edge of the hole in the curb was open and obvious.

         Plaintiff argues that the deteriorating condition of the edge of the hole in the curb was
latent because underground water flow weakened the concrete near the hole in the curb, as
testified to by James Standen, a professional engineer and plaintiff’s expert witness. According
to Standen, the water underneath the curb continuously freezes over and thaws, which causes the
concrete to weaken. However, the deteriorating condition of the curb—reflected by the hole in
the concrete of the curb—was clearly visible, and a reasonable person would have realized that
stepping on the edge of the deteriorated portion of the curb could lead to further weakening and
crumbling. See Lugo, 464 Mich at 520-521.3

     For the reasons stated above, the trial court erred in denying defendant’s motion for
summary disposition.

        Reversed and remanded for entry of an order granting defendant’s motion for summary
disposition.

        Defendant may tax costs, having prevailed in full. MCR 7.219(A). We do not retain
jurisdiction.

                                                               /s/ Christopher M. Murray
                                                               /s/ Henry William Saad
                                                               /s/ Kirsten Frank Kelly




3
  Plaintiff does not argue on appeal, and did not argue at the trial court level, that there was a
special aspect of the condition that would preclude application of the open and obvious doctrine.
See Millikin v Walton Manor Mobile Home Park, Inc, 234 Mich App 490, 499; 595 NW2d 152
(1999). Regardless, there were no special aspects of the open and obvious hazardous condition
that rendered the risk unreasonable. First, the condition was not effectively unavoidable. Lugo,
464 Mich at 518. There is no indication that the deteriorated portion of the concrete was
inescapable. Although plaintiff testified that she stepped on the curb to move out of the way of
traffic in the parking lot, plaintiff did not testify that she had no choice but to step on the edge of
the deteriorated portion of the curb to get out of the way of traffic. Furthermore, plaintiff
testified that she did not walk over the deteriorated median curb on her initial walk to
defendant’s store or on her way back to her car. Thus, plaintiff fails to establish that the curb
was effectively unavoidable. See id. Second, the deteriorating curb of the median in the parking
lot over which plaintiff tripped is more akin to an “ordinary pothole” than a 30-foot-deep pit.
See id. The curb on the median was only a few inches off the ground, which indicates that it
would not create an unreasonably high risk of severe harm. Id. at 518-519.

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