                          STATE OF MICHIGAN

                             COURT OF APPEALS



PEGGY FREEMAN,                                                     UNPUBLISHED
                                                                   June 6, 2017
               Plaintiff-Appellant,

v                                                                  No. 331224
                                                                   Genesee Circuit Court
KMART CORPORATION,                                                 LC No. 15-104384-NO

               Defendant-Appellee,

and

KMART HOLDING CORPORATION and
SEARS HOLDINGS MANAGEMENT,

               Defendants.


Before: RIORDAN, P.J., and KRAUSE and SWARTZLE, JJ.

PER CURIAM.

        Plaintiff, Peggy Freeman, appeals as of right the trial court order granting summary
disposition in favor of defendant, Kmart Corporation, in this premises liability case.1 We affirm.

                                I. FACTUAL BACKGROUND

        On December 7, 2014, plaintiff was shopping with her daughter at the now-closed Kmart
store that was located on Miller Road in Flint, Michigan. Plaintiff had visited that store
numerous times in the past. The store was scheduled to shutter permanently the following day,
and staff had stopped restocking the aisles approximately one month before the incident, so
limited merchandise was on the shelves.


1
 Defendants Kmart Holding Corporation and Sears Holdings Management were initially named
as defendants in plaintiff’s complaint. The trial court entered a stipulated order of dismissal,
which dismissed Kmart Holding Corporation and Sears Holdings Management without
prejudice. Accordingly, we will refer to defendant Kmart Corporation as “defendant” in this
opinion.


                                               -1-
        When they arrived, plaintiff and her daughter shopped in the back of the store for
approximately 20 minutes. Plaintiff then separated from her daughter and walked by herself
toward the front of the store. She was not pushing a shopping cart. She walked down an aisle
without any merchandise on the shelves,2 turned to the left at the end of the aisle, and
immediately fell across an empty end cap3 base, so that she was lying on top of the end cap after
she fell. She then rolled off the end cap. Plaintiff’s daughter and store personnel came to her aid
soon after she fell, calling 911. Plaintiff sustained several injuries that required extensive
medical treatment and continued to affect her daily life.

         At her deposition, plaintiff explained that she was not sure of the exact cause of her fall,
as she only remembered walking down the aisle and suddenly falling. She testified that she was
“probably . . . looking straight ahead” when she fell, and she did not remember her foot catching
on anything before the incident. Later in her deposition, however, she said that she thought she
had fallen over the end cap and then rolled off of it. At least one store employee saw plaintiff
fall on top of the end cap and roll onto the ground. It is undisputed that defendant did not place a
barricade or warning near the empty end cap, and that nothing blocked it.

         In March 2015, plaintiff filed a two-count complaint against defendant, alleging premises
liability and ordinary negligence. Her claims were primarily based on Kmart’s failure to remove
the end cap when it was empty, failure to warn customers of the dangerous condition, failure to
ensure a contrast in color between the store floor and the base of the end cap, failure to inspect
the premises, and “fail[ure] to restock merchandise on the empty end cap and/or . . . fail[ure] to
place a tall object around the edges of the empty end cap base to warn customers of the tripping
hazard after the end cap became empty.” In its answer, defendant denied plaintiff’s allegations
of premises liability and negligence.

       In October 2015, defendant filed a motion for summary disposition pursuant to MCR
2.116(C)(10), arguing that it was entitled to judgment as a matter of law on several grounds,
including the open and obvious doctrine. In her response, plaintiff argued that there were
numerous issues of fact that precluded summary disposition. After holding a hearing on
defendant’s motion, the trial court granted defendant’s motion for summary disposition based on
the open and obvious doctrine and entered an order dismissing plaintiff’s complaint with
prejudice.

      On appeal, plaintiff argues that the trial court’s grant of summary disposition was
improper. We disagree.

                                  II. STANDARD OF REVIEW




2
 A paper sign with the phrase “Entire Store 90% OFF” was hanging off the top shelf at the end
of the aisle.
3
 An “end cap” is “part of the counter.” A “counter” is the shelving unit that holds merchandise
on either side of an aisle.


                                                -2-
        This Court reviews de novo a trial court’s grant or denial of summary disposition.
Moraccini v Sterling Hts, 296 Mich App 387, 391; 822 NW2d 799 (2012). “A motion under
MCR 2.116(C)(10) tests the factual sufficiency of the complaint.” Cannon Twp v Rockford Pub
Sch, 311 Mich App 403, 411; 875 NW2d 242 (2015). When reviewing such a motion, this Court
may only consider, in the light most favorable to the party opposing the motion, the evidence that
was before the trial court, which consists of “the ‘affidavits, together with the pleadings,
depositions, admissions, and documentary evidence then filed in the action or submitted by the
parties.’ ” Calhoun Co v Blue Cross Blue Shield Michigan, 297 Mich App 1, 11; 824 NW2d 202
(2012), quoting MCR 2.116(G)(5). “The trial court is not permitted to assess credibility, weigh
the evidence, or resolve factual disputes” when ruling on a motion for summary disposition
pursuant to MCR 2.116(C)(10). Wells Fargo Bank, NA v SBC IV REO, LLC, 318 Mich App 72,
91; ___ NW2d ___ (2016) (quotation marks and citation omitted). Under MCR 2.116(C)(10),
“[s]ummary disposition is appropriate if there is no genuine issue regarding any material fact and
the moving party is entitled to judgment as a matter of law.” Latham v Barton Malow Co, 480
Mich 105, 111; 746 NW2d 868 (2008). “There is a genuine issue of material fact when
reasonable minds could differ on an issue after viewing the record in the light most favorable to
the nonmoving party.” Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8
(2008).

                                        III. ANALYSIS

        “A plaintiff who brings a premises liability action must show (1) the defendant owed
[her] a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of
[her] injury, and (4) [she] suffered damages.” Bullard v Oakwood Annapolis Hosp, 308 Mich
App 403, 408; 864 NW2d 591 (2014) (quotation marks and citation omitted). The parties agree
that plaintiff was an invitee on defendant’s premises when she fell. “In Michigan, a premises
possessor owes a duty to use reasonable care to protect invitees from an unreasonable risk of
harm caused by dangerous conditions on the premises . . . . ” Hoffner v Lanctoe, 492 Mich 450,
455; 821 NW2d 88 (2012). See also id. at 460; Lugo v Ameritech Corp, Inc, 464 Mich 512, 516;
629 NW2d 384 (2001). “Michigan law provides liability for a breach of this duty of ordinary
care when 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, 492 Mich at 460. See also Lowrey v LMPS & LMPH,
Inc, 500 Mich 1, 8; 890 NW2d 344 (2016), quoting Hoffner, 492 Mich at 460.

        However, “[t]he possessor of land owes no duty to protect or warn of dangers that are
open and obvious because such dangers, by their nature, apprise an invitee of the potential
hazard, which the invitee may then take reasonable measures to avoid.” Hoffner, 492 Mich at
460-461 (quotation marks and citations omitted). See also Riddle v McLouth Steel Products
Corp, 440 Mich 85, 94; 485 NW2d 676 (1992) (“[A] possessor of land does not owe a duty to
protect his invitees . . . [from] dangers that are so obvious and apparent that an invitee may be
expected to discover them himself.”). “Whether a danger is open and obvious depends on
whether it is reasonable to expect that an average person with ordinary intelligence would have
discovered it upon casual inspection. This is an objective standard, calling for an examination of
the objective nature of the condition of the premises at issue.” Hoffner, 492 Mich at 461
(quotation marks and citations omitted).


                                               -3-
        “[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.” Lugo, 464 Mich at 517. See also Bertrand v Alan Ford, Inc,
449 Mich 606, 617; 537 NW2d 185 (1995) (stating that when there is something unusual about
an open and obvious condition due to its “character, location, or surrounding conditions, then the
duty of the possessor of land to exercise reasonable care remains. If the proofs create a question
of fact that the risk of harm was unreasonable, the existence of duty as well as breach become
questions for the jury to decide.”) (quotation marks and citations omitted). “Under [the] limited
[‘special aspects’] exception [to the open and obvious doctrine], liability may be imposed only
for an ‘unusual’ open and obvious condition that is ‘unreasonably dangerous’ because it
‘present[s] an extremely high risk of severe harm to an invitee’ in circumstances where there is
‘no sensible reason for such an inordinate risk of severe harm to be presented.’ ” Hoffner, 492
Mich at 462 (citation omitted). As the Michigan Supreme Court explained in Hoffner, 492 Mich
at 463:

       This Court has discussed two instances in which the special aspects of an open
       and obvious hazard could give rise to liability: when the danger is unreasonably
       dangerous or when the danger is effectively unavoidable. In either circumstance,
       such dangers are those that give rise to a uniquely high likelihood of harm or
       severity of harm if the risk is not avoided and thus must be differentiated from
       those risks posed by ordinary conditions or typical open and obvious hazards.
       Further, we have recognized that neither a common condition nor an avoidable
       condition is uniquely dangerous. Thus, when a plaintiff demonstrates that a
       special aspect exists or that there is a genuine issue of material fact regarding
       whether a special aspect exists, tort recovery may be permitted if the defendant
       breaches his duty of reasonable care. [Quotation marks and citations omitted.]

        As the trial court concluded, the record clearly demonstrates that there was no genuine
issue of material fact as to whether the end cap base was open and obvious. It is apparent that an
average person with ordinary intelligence would have discovered the end cap base upon casual
inspection. Hoffner, 492 Mich at 461. All of the witnesses, including plaintiff, agreed that the
end cap was a different color than the floor: the end cap base was brown, while the floor was a
sand, white, or off-white color. It also was rather large, standing nine inches high, 36 inches
wide, and 26 inches deep. Consistent with the witnesses’ descriptions, the black-and-white
photograph of the end cap base attached to defendant’s motion for summary disposition and
plaintiff’s response depicts a large, dark-colored base, raised from the floor by a dark-colored
foundation, both of which clearly contrast with the light-colored floor. The witnesses, including
plaintiff, unanimously testified that nothing obstructed the view of the end cap at the counter’s
end to which it was attached. It is clear from the photograph, and the undisputed fact that the
end cap extended out 26 inches from the end of the counter, that the end cap base would have
been visible to an average customer as she approached the end of the aisle, if she were to
casually inspect the area. Likewise, other witnesses consistently testified that an individual
would have no difficulty observing the end cap as he or she approached the area where plaintiff
fell. We are similarly convinced, especially in light of the clear contrast between the end cap
base and the floor in the photograph, that a shopper would notice the end cap base if she casually
inspected the premises.


                                               -4-
       Although plaintiff emphasizes on appeal that she never saw the end cap before she fell,
and suggested during her deposition that she may not have seen the end cap even if she had been
looking down at the ground as she turned the corner, the applicable inquiry is an objective
standard. Hoffner, 492 Mich at 461. According to plaintiff’s deposition testimony, she was
“probably . . . looking straight ahead” when she fell, which necessarily means that she was not
watching where she was walking at the time. The mere fact that plaintiff did not notice the end
cap base herself before she fell does not undermine the clear and undisputed evidence in the
record showing that the end cap was open and obvious. Relatedly, plaintiff’s contention that “an
ordinary user coming down that aisle that turns the corner will typically be looking straight
ahead as [she] was doing while shopping” is inapposite given the established principle
underlying the open and obvious doctrine that a reasonably prudent person will look where she is
going, observe an open and obvious condition in front of her, and take appropriate measures for
her own safety. Bertrand, 449 Mich at 616-617. Because the end cap base created a risk of
harm solely because plaintiff failed to notice it, and there is no evidence that she could not have
discovered it and realized its danger, defendant is not liable for her injuries. Id. at 611.

        Contrary to plaintiff’s claims, we detect no basis for concluding that the end cap base was
not open and obvious based on the fact that shelving or merchandise was not displayed closer to
the average shopper’s eye level, or based on testimony regarding steps that had been taken to
address empty counters or end caps in the past and steps that could have been taken before the
incident in this case. Given the evidence in the record, reasonable minds could not disagree on
the issue of whether an average individual would have noticed the end cap base upon casual
inspection. See Hoffner, 492 Mich at 461; Allison, 481 Mich at 425.

        The trial court also properly concluded that there was no genuine issue of material fact as
to whether the end cap included a special aspect that made it unreasonably dangerous. As
discussed, there are only “two instances in which the special aspects of an open and obvious
hazard could give rise to liability: when the danger is unreasonably dangerous or when the
danger is effectively unavoidable,” and “neither a common condition nor an avoidable condition
is uniquely dangerous.” Hoffner, 492 Mich at 463; Lugo, 464 Mich at 517-520. It is undisputed
that plaintiff only fell a short distance, landing on the end cap and then rolling onto the floor.
Falling a short distance to the ground does not involve an especially high likelihood of severe
injury or death sufficient to remove a condition from the scope of the open and obvious doctrine.
Lugo, 464 Mich at 519-520; Corey v Davenport College of Business, 251 Mich App 1, 7; 649
NW2d 392 (2002). Moreover, it is undisputed that plaintiff easily could have avoided the end
cap by simply walking around it. Thus, the condition was not effectively unavoidable.

         Further, plaintiff expressly acknowledged that she had seen end caps in this particular
Kmart store as well as other stores, although none of them had been empty. She also testified
that she had been to this particular Kmart store approximately 200 times and was very familiar
with it. Consistent with plaintiff’s testimony, there is no doubt that shoppers routinely encounter
end caps in retail stores, and an average shopper would be aware that end caps—whether filled
with merchandise or not—are routinely present in between shopping aisles. Therefore,
especially given the fact that the end cap was not an unusual condition, there was no genuine
issue of material fact that the end cap did not include any special aspects that precluded
application of the open and obvious doctrine. See Hoffner, 492 Mich at 463; Lugo, 464 Mich at
517-520.

                                                -5-
        Plaintiff, however, contends that Michigan caselaw involving shopkeepers and distracted
shoppers shows that the end cap base had special aspects in this case, such that defendant is
liable for her injuries. As plaintiff emphasizes, the Michigan Supreme Court restated the
following principles in Clark v Kmart Corp, 465 Mich 416, 419; 634 NW2d 347 (2001):

              The duties of a storekeeper to customers regarding dangerous conditions
       are well established and were set forth in Serinto v Borman Food Stores, 380
       Mich 637, 640-641; 158 NW2d 485 (1968):

              “It is the duty of a storekeeper to provide reasonably safe aisles for
              customers and he is liable for injury resulting from an unsafe
              condition either caused by the active negligence of himself and his
              employees or, if otherwise caused, where known to the storekeeper
              or is of such a character or has existed a sufficient length of time
              that he should have had knowledge of it.” [Quoting Carpenter v
              Herpolsheimer’s Co, 278 Mich 697; 271 NW 575 (1937)
              (syllabus) (emphasis added by the Serinto Court).]

However, plaintiff mischaracterizes this Court’s opinion in Kennedy v Great Atlantic & Pacific
Tea Co, 274 Mich App 710; 737 NW2d 179 (2007), and the brief Michigan Supreme Court order
in Compau v Pioneer Resource Co, LLC, 498 Mich 928 (2015). In Kennedy, 274 Mich App at
714-716, the plaintiff contended that the crushed grapes or grape residue on which he fell was
not readily apparent to him, and that he could not have been expected to notice or observe the
hazard, partially due to the fact that shopkeepers expect, and intend, that customers will direct
their attention to displayed merchandise. This Court distinguished Jaworski v Great Scott
Supermarkets, Inc, 403 Mich 689; 272 NW2d 518 (1978), a case decided under the now-
abrogated doctrine of contributory negligence, and reasoned:

               The issue in the case at bar is not whether plaintiff was comparatively
       negligent in failing to observe and avoid the crushed grapes or grape residue on
       defendants’ floor. Instead, the issue is whether defendants owed plaintiff a duty
       in the first instance. We readily concede that shoppers in modern grocery stores
       are often distracted by displays and merchandise. But mere distractions are not
       sufficient to prevent application of the open and obvious danger doctrine. Lugo,
       supra at 522. Instead, to prevent application of the open and obvious danger
       doctrine to a typical and obvious condition, the condition must be “effectively
       unavoidable” or “unreasonably dangerous because of special aspects that impose
       an unreasonably high risk of severe harm.” Id. at 518. “However, typical open
       and obvious dangers . . . do not give rise to these special aspects.” Id. at 520.

               Like plaintiff in the present case, who argues that he was distracted by the
       displays and merchandise in defendants’ supermarket, the plaintiff in Lugo argued
       that she did not notice or observe a potentially hazardous pothole because she was
       “distract[ed]” by moving vehicles in the parking lot. Id. at 522. The Lugo Court
       ruled that the relevant inquiry was not merely whether the plaintiff was
       distracted, but whether there was anything “unusual” about the plaintiff's


                                               -6-
       distraction that would preclude application of the open and obvious danger
       doctrine. Id. The Court concluded:

                       While plaintiff argues that moving vehicles in the parking
               lot were a distraction, there is certainly nothing “unusual” about
               vehicles being driven in a parking lot, and, accordingly, this is not
               a factor that removes this case from the open and obvious danger
               doctrine.

                                               * * *

                        [P]otholes in pavement are an “everyday occurrence” that
               ordinarily should be observed by a reasonably prudent person.
               Accordingly, in light of plaintiff's failure to show special aspects of
               the pothole at issue, it did not pose an unreasonable risk to her.
               [Id. at 522-523.]

               In light of Lugo, we conclude that there was nothing unusual about
       plaintiff's purported distraction; nor is there anything unusual about spilled grapes
       or grape residue on a supermarket floor. Therefore, even if the reasoning of
       Jaworski still applies under our system of comparative negligence, it does not
       obviate the fact that the crushed grapes on which plaintiff slipped were open and
       obvious as a matter of law. Reasonable minds could not disagree that the crushed
       grapes on which plaintiff slipped were not “unreasonably dangerous because of
       special aspects that impose an unreasonably high risk of severe harm.” Lugo,
       supra at 518. [Kennedy, 274 Mich App at 716-717 (emphasis added).]

        The relevant question before us is “whether there was anything ‘unusual’ about the
plaintiff’s distraction that would preclude application of the open and obvious danger doctrine.”
Id. at 717. The issue is not merely whether there was an issue of material fact as to whether
plaintiff was distracted from an open and obvious condition. See id. Plaintiff failed to establish
that there was anything unusual about the “90% OFF” advertisement in this case. The evidence
in the record clearly establishes that empty shelves and “90% OFF” signs were a common
occurrence on the day of the incident. Merchandise was selling very quickly in the store due to
the fact that it was the last day that it would be open to the public, and the public was aware of
the significant sale prices. Notably, plaintiff expressly confirmed that she noticed when she
arrived at the store that many of the aisles and shelves were empty, with only “a few aisles left in
the store with limited merchandise on them . . . .” Accordingly, contrary to plaintiff’s claims,
reasonable minds could not differ in concluding that there was nothing unusual about the aisle
down which plaintiff was walking immediately before she fell that would transform the sign into
a special aspect. As in Lago, plaintiff failed to establish that the sign constituted a special aspect
of the end cap base that rendered it unreasonably dangerous. See Kennedy, 274 Mich App at
716-717, citing Lago, 464 Mich at 522-523.

       Furthermore, plaintiff fails to acknowledge the context of this Court’s statements in the
next section of the Kennedy opinion, on which plaintiff heavily relies. The Court stated:


                                                 -7-
               Plaintiff next contends that even if the crushed grapes and grape residue
       were obvious and readily apparent, the open and obvious danger doctrine does not
       apply to bar recovery in this case because defendants should have known that he
       would be distracted by their displays and merchandise. Again, we disagree. It is
       true that in some cases, “ ‘the possessor of land can and should anticipate that the
       dangerous condition will cause physical harm to the invitee notwithstanding its
       known or obvious danger.’ ” Bertrand, supra at 611, quoting 2 Restatement
       Torts, 2d, § 343A, comment f, p 220. We fully recognize that “ ‘[s]uch reason to
       expect harm to the visitor from known or obvious dangers may arise, for example,
       where the possessor has reason to expect that the invitee’s attention may be
       distracted, so that he will not discover what is obvious,’ ” and that in such cases
       the open and obvious danger doctrine will not apply to bar the defendant’s duty to
       the invitee. Bertrand, supra at 611-612, quoting 2 Restatement Torts, 2d, § 343A,
       comment f, p 220.

               However, plaintiff in this case has simply failed to raise a genuine issue of
       fact with respect to whether defendants knew or should have known that his
       attention would be distracted in this manner. We do not dispute that the evidence
       in this case, including numerous past accident reports from several of defendants’
       supermarkets, established that defendants should have been aware of the potential
       slipping hazard posed by crushed grapes or grape residue. In contrast, however,
       there was no evidence introduced in this case to establish or even suggest that
       defendants knew or should have known that plaintiff would be sufficiently
       distracted by the displays and merchandise so as to divert his attention from this
       otherwise open and obvious slipping hazard. Again referring to Jaworski,
       plaintiff essentially asks us to conclude that all shoppers, as a matter of course, are
       distracted by supermarket displays and merchandise. However, we will not create
       such a broad rule, especially in light of the fact that public policy requires
       individuals to take some degree of reasonable care for their own safety. Bertrand,
       supra at 616-617. Moreover, as this Court has previously observed, “We see no
       valid reason to extend Jaworski and create a special standard of care for
       supermarket patrons.” Charleston, supra at 419. In short, it was plaintiff’s
       burden to establish a genuine issue of material fact with respect to whether
       defendants “ha[d] reason to expect that the invitee’s attention [might have been]
       distracted, so that he [would] not discover what [was] obvious . . . .” Bertrand,
       supra at 611-612, quoting 2 Restatement Torts, 2d, § 343A, p 220. However, he
       did not come forward with sufficient evidence to meet this burden. Plaintiff has
       failed to create a genuine factual dispute with respect to whether defendants knew
       or should have known that his attention would be distracted away from the open
       and obvious danger. [Kennedy, 274 Mich App at 718-719 (emphasis added).]

        Likewise, here, plaintiff failed to proffer any evidence creating a genuine issue of
material fact as to whether defendant knew or should have known that plaintiff’s attention would
be sufficiently drawn away from the open and obvious end cap base such that she would fail to
notice the end cap. Again, plaintiff, as well as defendant’s employees, testified that numerous
aisles had little or no merchandise. There simply is no basis in the record that defendant should
have expected an ordinary customer to be distracted by a sign in an empty aisle, just like many

                                                -8-
other aisles, and fail to notice the plainly open and obvious end cap base. See also Quinto v
Woodward Detroit CVS, LLC, 305 Mich App 73, 76; 850 NW2d 642 (2014) (reluctantly
applying Kennedy and upholding a trial court’s grant of summary disposition in favor of the
defendant under facts strikingly similar to this case).

        Therefore, there was no genuine issue of material fact that the end cap at issue did not
include any special aspects that would preclude the application of the open and obvious doctrine.
Because the end cap base created a risk of harm solely because plaintiff failed to notice it, and
there is no evidence that she could not have discovered it and realized its danger if she had
casually inspected the area as she was walking, defendant is not liable for her injuries. Bertrand,
449 Mich at 611. The trial court properly granted summary disposition in favor of defendant
pursuant to MCR 2.116(C)(10).4

       Affirmed.

                                                            /s/ Michael J. Riordan
                                                            /s/ Brock A. Swartzle




4
  We note that plaintiff’s two-count complaint alleged negligence and premises liability claims.
However, the allegations under each count are nearly identical, and the gravamen of both claims
is that plaintiff’s injuries occurred as a result of a condition on defendant’s premises.
Accordingly, plaintiff’s claim sounds in premises liability, and the trial court did not err in
dismissing plaintiff’s entire complaint, including her ordinary negligence claim. See Jahnke v
Allen, 308 Mich App 472, 474-476; 865 NW2d 49 (2014) (stating the applicable rules and
distinguishing between ordinary negligence and premises liability claims); see also Kachudas v
Invaders Self Auto Wash, Inc, 486 Mich 913, 914 (2010); James v Alberts, 464 Mich 12, 18-19;
626 NW2d 158 (2001).


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