                          STATE OF MICHIGAN

                           COURT OF APPEALS



JIM MCAULLIFE,                                                      UNPUBLISHED
                                                                    August 11, 2016
               Plaintiff-Appellee,

v                                                                   No. 323407
                                                                    Genesee Circuit Court
LAVILLA RESTAURANT, INC., doing business                            LC No. 13-099725-NO
as LA VILLA RESTAURANT & PIZZERIA,

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and SAWYER and STEPHENS, JJ.

RONAYNE KRAUSE, P.J. (dissenting)

         I respectfully dissent because I believe the majority’s analysis does not account for the
realities of the way in which people interact. Furthermore, I am at a loss to explain the
majority’s implication that I have invented facts. However, I agree with the majority’s analysis
regarding plaintiff’s nuisance claims.

        As an initial matter, openness and obviousness applies solely to premises liability claims;
whether or not the physical conditions of the driveway were open and obvious is irrelevant to
plaintiff’s negligence claim. See Wheeler v Central Michigan Inns, Inc, 292 Mich App 300, 304;
807 NW2d 909 (2011). As the majority states, a negligence claim is founded on “the overt acts
of a premises owner on his or her premises” rather than an “injury by a condition of the land.”
Kachudas v Invaders Self Auto Wash Inc, 486 Mich 913, 914; 781 NW2d 806 (2010). The
majority concludes, appropriately, that merely ordering deliveries to be made via a back door is
not by itself a violation of any particular duty of care. The majority’s further conclusion that
such an order cannot violate a duty of care when viewed in context because that context involves
a condition of the land which I will discuss in this opinion, however, makes no sense to me.
Pushing someone over might not necessarily violate any particular duty of care, either, but
pushing them into a pit surely would. Ignoring the facts and circumstances of an act amounts to
nothing but a pronouncement of a legal rule by judicial fiat, and the condition of the land
surrounding an act can readily and radically alter the character of that act.

       As no less renowned a jurist than Justice VOELKER warned us that “a rule, when divorced
from the facts to which it might properly apply, can be made to fit all occasions.” Steger v
Blanchard, 353 Mich 140, 144; 90 NW2d 891 (1958). Further,



                                                -1-
       Rules of law are necessary; properly applied they can succinctly gather in the
       loose ends of a case and help rationalize the decision. Our courts could scarcely
       operate without them. But when a rule of law or its application becomes so
       divorced from the context of reality, from the living human situations to which it
       is sought to be applied, it becomes meaningless incantation and downright
       harmful. It isn’t always what the rule says that is so bad; it is how it is applied.
       [Id.]

In Steger, the legal doctrine under discussion was contributory negligence.            However, the
principle articulated is simply how the law is supposed to operate in reality.

         Directing a delivery person to use a back entrance is, I expect, quite ordinary in reality.
However, if that entrance cannot be accessed safely, the character of the direction may be very
different, especially because the delivery person might be trespassing to use any other entrance.
It is, of course, the very height of ivory-tower disdain for real people in the real world to suggest
that someone who depends on working for a living to survive should, in the alternative, simply
not do their job. Furthermore, it is at least arguable that if a business directs a delivery person to
use a specific entryway, that direction constitutes a strongly implied assurance that doing so will
be safe, and I do not believe it is unreasonable to expect the business to be aware of the situation.
It has long been the case, as stated by Justice COOLEY, that

       Where one assumes to have knowledge upon a subject of which another may well
       be ignorant, and knowingly makes false statements regarding it upon which the
       other relies, to his injury, we do not think it lies with him to say that the party who
       took his word and relied upon it as that of an honest and truthful man, was guilty
       of negligence in so doing, as to be precluded from recovering compensation for
       the injury which was inflicted upon him under cover of the falsehood. If a party’s
       own wrongful act has brought another into peril, he is not at liberty to impute the
       consequences of his acts to a want of vigilance in the injured party, when his own
       conduct and untruthful assertions have deprived the other of that quality and
       produced a false sense of security. [Eaton v Winnie, 20 Mich 156, 165-166
       (1870).]

I therefore disagree with the majority’s abrupt dismissal of plaintiff’s negligence claims on the
basis of a disconnected per-se rule that directing a delivery person to use a back entrance is not
negligence, no matter the circumstances.1

        As the majority states, we nevertheless have in Michigan another such disconnected per-
se rule that snow-covered surfaces and the attendant possibility that they may be slippery is an
open and obvious hazard. Ververis v Hartfield Lanes, 271 Mich App 61, 67; 718 NW2d 382
(2006). Consequently, plaintiff’s premises liability action may not be based solely on the


1
  The majority distinguishes Eaton on its age, which I believe is a novel basis for per se
disregarding precedent, and the majority’s disinclination to place defendant’s directive in any
kind of context, a philosophy with which I disagree.


                                                 -2-
presence of snow and ice on the ground. However, it is not, and, consistent with the above
discussion about the importance of context, our Supreme Court has clarified that the hazards of
snow and ice are not necessarily incompatible with premises liability, depending on the totality
of the circumstances present. Hoffner v Lanctoe, 492 Mich 450, 463-464; 821 NW2d 88 (2012).
Furthermore, openness and obviousness is tested from an objective standpoint, so it is irrelevant
what plaintiff in this case actually and personally knew about the property. Novotney v Burger
King Corp, 198 Mich App 470, 474-475; 499 NW2d 379 (1993).

        I would have thought it basic common sense and a matter of common knowledge that a
layer of snow could effectively cloak rough terrain, as well as the basic fact that an unpredictable
surface is intrinsically more dangerous than a flat one simply due to its unpredictability. The
sum can be both greater than and indivisible from the total of its parts; I am therefore not
persuaded that the particular hazard here, only part of which was made up of snow and ice, was
in fact open and obvious. For reasons already discussed above, I am equally dubious that the
hazard was effectively unavoidable.

       I would affirm.

                                                             /s/ Amy Ronayne Krause




                                                -3-
