            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS



VASILIOS GRIAS,                                                      UNPUBLISHED
                                                                     December 17, 2019
               Plaintiff-Appellant,

v                                                                    No. 344699
                                                                     Wayne Circuit Court
EQ DETROIT, INC.,                                                    LC No. 16-012944-NO

               Defendant-Appellee.


Before: BECKERING, P.J., and BORRELLO and M. J. KELLY, JJ.

PER CURIAM.

        In this premises liability action, plaintiff appeals by delayed leave granted1 the trial
court’s order granting defendant’s2 motion for summary disposition under MCR 2.116(C)(10)
and dismissing plaintiff’s claims with prejudice. For the reasons set forth in this opinion, we
reverse.

                                       I. BACKGROUND

        This appeal arises out of the trial court’s order granting defendant summary judgment
from an incident at defendant’s facility when a descending door that resembled a garage door
struck plaintiff in the head. At the time alleged incident, plaintiff was a driver for a trucking
company, H&P Transportation. Defendant treats nonhazardous and hazardous industrial waste
to stabilize and neutralize it before it is deposited in a landfill.



1
 Grias v EQ Detroit, Inc, unpublished order of the Court of Appeals, entered December 21,
2018 (Docket No. 344699).
2
  Defendant is also referred to as “US Ecology” in some of the lower court proceedings.
However, “EQ Detroit, Inc.,” and “US Ecology” are both references to the same entity for
purposes of this litigation: there is only one defendant in this case. Additionally, plaintiff refers
to defendant at times in his deposition as “EQ.”



                                                -1-
         Plaintiff’s job responsibilities at H&P included picking up loads from defendant’s facility
and delivering those loads to the landfill. After arriving at defendant’s facility to pick up a load,
plaintiff would check his equipment, get the manifest, and then get his truck loaded. Plaintiff
testified in his deposition that he would pick up loads at defendant’s facility from one of two
doors at the “chemical fixation building.” These doors were commonly referred to as the “front
door” and the “rail door.” The building was approximately an acre in size. The rail door only
opened when a pull cord was pulled, while the front door opened automatically when a truck
arrived at the door. The rail door pull cord could be reached from inside the cab of a truck by
reaching through the window, but it was too high to be reached from the ground. Plaintiff
indicated that he never needed to use the pull cord to close the rail door.

        Inside the building were six different vats:3 three were accessible by the front door and
three were accessible by the rail door. According to plaintiff, the truck drivers who were ahead
of him in line to pick up their loads would direct him to a specific vat at which to load his truck.
Based on this information, plaintiff could determine whether to enter the building through the
front door or the rail door. Plaintiff would get the manifest inside the chemical fixation building
from the person operating the excavator that was to load his truck. The chemical fixation
building also had a door called the “back door,” which was the door through which the trucks
exited after being loaded inside the building.

        Plaintiff testified that on the day of the incident, he drove his truck to the rail door,
performed his safety checks outside the door, pulled the pull cord to open the rail door, and
walked into the building to get the manifest. The excavator was five feet from the doorway,
inside the building. Plaintiff was wearing his respirator but was not wearing his hard hat, which
was still inside his truck. After obtaining the manifest, plaintiff walked back outside through the
rail door, and the door came down and hit him in the back of the head. He did not see or hear the
door coming down before he walked back through it. Plaintiff testified, “It hit me in the back of
my head and it put me down to my knees.” Plaintiff never lost consciousness, but he felt dizzy
and disoriented. After the door hit him, plaintiff was able to get up on his own. He walked to his
truck, drove it into the chemical fixation building, picked up his load, drove out the back door,
and then filed an incident report before leaving defendant’s facility. Plaintiff alleged he received
injuries to his head, neck, and right arm.

        Plaintiff testified that when he would pick up his manifest when loading through the rail
door, he would typically walk inside the building rather than drive his truck inside. According to
plaintiff, it usually took him less than a minute to get the manifest and the rail door remained up
until he walked back outside. After getting the manifest and walking back outside to his truck,
he would then drive it into the building for loading. He did not need to pull the pull cord a
second time before driving his truck inside. Plaintiff explained that he left his truck outside
when getting the manifest because “they load really contaminated stuff” in the chemical fixation
building and that when he opened the rail door that day, “it was really smoky.” Plaintiff
specifically indicated that he made a choice on the day of the incident to walk inside to get the


3
    These are also referred to in the record as “vaults” or “pits.”


                                                    -2-
manifest based on the smoky conditions. He testified, “I couldn’t see nothing. I didn’t want to
hurt nobody or run nobody over. So that’s why I walked.” He also stated, “It was so smoky that
I didn’t want to proceed with my truck. I didn’t want to run nobody over. So the next best thing
was walk in.” Plaintiff acknowledged that this was his own decision and that nobody had
instructed him to walk through the rail door rather than drive his truck inside. Plaintiff further
testified that the rail door was the only door available for entry in that area of the building4 but
that there was a “walk-in door” by the front door through which he could enter on foot to pick up
his manifest when he loaded at a vat accessible through the front door.

        When asked whether he ever drove his truck into the building before getting his manifest,
plaintiff responded as follows:

               It depends on the quality of the air that’s in the building. If I could see,
       yes, sure. We’d sometimes do that. It depends. Like I say, because if you load in
       [vat] 706, [which is near the rail door,] your door still remains open because you
       have a whole big equipment, you know you have 50 foot [of trailers] sticking out
       the door. So that door is going to stay open so air does leak out of there. They’re
       not too kindly with that. You know, they don’t want that air getting out.

        Paul Haratyk, defendant’s operations manager, testified that it was uncommon for a
driver to get out of the driver’s truck and walk through the rail door to get the manifest. Haratyk
stated that the drivers “usually just pull right in.” David Yurcak, defendant’s receiving
supervisor, also stated that he did not think people were supposed to walk through the rail door
and that pedestrians were supposed to use “man doors.” Haratyk acknowledged that it could be
“steamy” inside of the chemical fixation building, but drivers “usually beep their horn as they’re
pulling in [and] the operator [in the excavator] will beep their horn when he likes where he’s
parked so we can load him.” Defendant’s maintenance coordinator, Daniel Berry, testified that
when the steam was significantly interfering with visibility, the operators would contact the truck
drivers outside the building and tell them to wait until the steam cleared before driving it. Berry
also indicated that there were “door spotters” to assist with such situations. According to
Haratyk, drivers were supposed to pull their trucks entirely into the building and there was
sufficient room to do so. A driver could get the manifest from the operator before, during, or
after loading.

       Haratyk testified that there was a “photo eye” installed on the rail door. The door was a
high-speed door that had been installed in approximately June 2015 to replace a “steel roll-up
door” that was push-button operated and did not close automatically unless the button was
pushed. At some point shortly after the door was installed, the photo eyes had been raised to
prevent the door from closing on the trucks. A timer was also installed on the rail door so it
would close automatically after a truck drove through. According to Berry, this timer did not


4
  It appears that there may also be a pedestrian door near the rail door but that it is always locked,
inaccessible to the drivers, and only leads off of defendant’s property. There was no evidence
that this is currently a functional or usable door.


                                                 -3-
override the photo-eye. Haratyk and another one of defendant’s employees tested the operation
of the rail door’s safety features after plaintiff’s incident. Haratyk “broke the photo eye” while
the rail door was descending, and the door reversed direction and went back up. The door
automatically went up when he walked through it. He performed this test “three or four” times.
Haratyk also testified that the door went back up during his tests when it sensed pressure on the
bottom of the door.

        With respect to the condition of the air quality inside the building, Haratyk testified that
the steam in the building was a normal part of the treatment process that truck drivers would
encounter on each arrival and that the amount of steam generated varied from day to day. He
also acknowledged that the steam might make it hard for drivers to see. Haratyk stated,
however, that in his opinion, the amount of steam in the building on the day of the incident was
“[b]etter than normal” and that the air was clear when he checked the operation of the rail door
after the incident.

        Thomas Green, Jr., a former coworker of plaintiff’s, testified that he was a driver for
H&P at the time of the incident and that he also picked up loads at defendant’s facility during
that time. Green explained that when he was directed to the rail door, he would “pull the cord
and wait for the smoke to clear and pull in towards the left-hand side” because the excavator
would be on the right side near the pits. According to Green, it would take between one and ten
minutes for the smoke to clear and there were times where “you cannot see the hood of your
truck.” Green testified that like plaintiff, he had also left his truck and walked inside to see the
operator because of the smoky conditions. Green further stated that “there is occasional
whiteouts in there, where you can’t see nothing” and he would “[c]ross [his] fingers and hope for
the best.” Green testified that “you have got hi-lo’s zipping around in there” in addition to the
excavator.

        Randall Sheridan, another driver who had worked at H&P with plaintiff, also testified
that there were times when the air was so smoky and foggy inside the building that it was
difficult to see while he was driving. He explained that in those situations, “[y]ou just crawl,
because you don’t want to hit nothing, because there’s times when there’s hi-los in there, and
you just crawl.” The smoke and fog in the building was an expected condition that occurred
regularly. Sheridan had also walked through the overhead door instead of driving through it, and
he had not seen any signs outside the rail door prohibiting pedestrian use. He testified that there
had been occasions where he was afraid to drive into the building because of the dense fog:

       [Y]ou don’t know what’s in front of you. You know, you drive in there and if
       you can’t see the excavator—you can see how wide the place is. There’s an
       excavator sitting in there, and if you can’t see that, you know, you can’t go in
       there very fast.

       According to Sheridan, the pedestrian entrance by the front door was approximately
2,000 feet around the building from the rail door. Sheridan further explained that it was not
possible to walk from the rail door around to this pedestrian door because doing so required
going through “a bunch of tanks and stuff there.” He stated, “You can’t walk through all them
tanks and pipes and all kinds of stuff.”


                                                -4-
       In opposing defendant’s summary disposition motion in the trial court, plaintiff also
attached a report prepared engineer Bradley T. Cook, P.E. Cook visited defendant’s facility to
perform a site inspection of the rail door, and he described the rail door in pertinent part as
follows:

       In addition, there are two photo-electric (‘light beam’) sensors that project across
       the opening of the overhead door opening. These sensors are activated when
       anything physically crosses or obstructs the ‘light beam’. The overhead door will
       either not initiate closing or reverse the overhead door if it is already closing.

              There are no sensors to detect and reverse the overhead door closing for an
       approaching pedestrian.

               The subject ‘rail’ overhead door while closing travels 2.8 feet per second
       (33.8 inches per second). Using the top of the overhead door opening, the
       overhead door takes 6.9 seconds to open or close. Once open, the overhead door
       stayed open for 9.4 seconds before beginning to close. The complete opening and
       closing cycle was 24.l seconds.

              I also note that the overhead door closing or activation cannot be heard
       above the ambient noise level present in the area outside the facility.

        Cook also noted that the technical manual for the door indicated that a “motion/presence
sensor is an optional safeguard for the subject ‘rail’ overhead door” and that a “motion/presence
sensor can be configured to open after detecting an approaching object including personnel
and/or reverse a closing overhead door when detecting an approaching object.”

       Finally, Cook reached five “Preliminary Conclusions”:

              l. [Plaintiff] did not have an alternative entry to the [defendant’s] facility
       adjacent to the subject ‘rail’ overhead door.

               2. [Plaintiff] would not have been alerted to the closing of the subject
       ‘rail’ door by sound or sight unless he was directly looking up toward the rolled-
       up/open position of the door.

              3. This closing speed is too fast for an approaching pedestrian to trigger
       the photo-electric eyes as a safeguard to avoid an impact.

              4. The subject ‘rail’ door as installed is not designed, intended, or
       provided with the necessary safeguards to be used as a personnel access door.

              5. The installation of the subject ‘rail’ overhead door did not have
       safeguards nor administrative controls to protect personnel against caught under
       or pinch hazards, therefore is in violation of known safety regulations and
       recommended practices for overhead doors.



                                                -5-
       As previously stated, the trial court granted defendant’s motion for summary disposition
under MCR 2.116(C)(10) finding there was no evidence of a defect in the door or that defendant
had any notice of a defect in the door. Plaintiff now appeals.

                                  II. STANDARD OF REVIEW

        A trial court’s summary disposition ruling is reviewed “de novo to determine if the
moving party is entitled to judgment as a matter of law.” Maiden v Rozwood, 461 Mich 109,
118; 597 NW2d 817 (1999). When evaluating a motion for summary disposition under MCR
2.116(C)(10), “a trial court considers affidavits, pleadings, depositions, admissions, and other
evidence submitted by the parties in the light most favorable to the party opposing the motion.”
Id. at 120 (citation omitted). “Summary disposition is appropriate under MCR 2.116(C)(10) if
there is no genuine issue regarding any material fact and the moving party is entitled to judgment
as a matter of law.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). “A
genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to
the opposing party, leaves open an issue upon which reasonable minds might differ.” Id.

                                          III. ANALYSIS

       As an initial matter, we clarify that despite plaintiff’s argument to the contrary, plaintiff’s
claim clearly sounds in premises liability. As this Court has explained:

               Courts are not bound by the labels that parties attach to their claims.
       Indeed, [i]t is well settled that the gravamen of an action is determined by reading
       the complaint as a whole, and by looking beyond mere procedural labels to
       determine the exact nature of the claim. Michigan law distinguishes between
       claims arising from ordinary negligence and claims premised on a condition of the
       land. In the latter case, liability arises solely from the defendant’s duty as an
       owner, possessor, or occupier of land. If the plaintiff’s injury arose from an
       allegedly dangerous condition on the land, the action sounds in premises liability
       rather than ordinary negligence; this is true even when the plaintiff alleges that the
       premises possessor created the condition giving rise to the plaintiff’s injury.
       [Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 691-692; 822
       NW2d 254 (2012) (quotation marks and citations omitted; alteration in original).]

        In this case, plaintiff claimed that he was injured by the rail door at one of the entrances
to the chemical fixation building at defendant’s facility after walking through the rail door to
obtain his manifest due to the presence of smoke that severely reduced his visibility and made
him afraid that he would hit somebody if he drove his truck through the door. Plaintiff thus
alleged that a dangerous condition on defendant’s property caused his injury, and his claim is
therefore one of premises liability rather than ordinary negligence. Id.

        A plaintiff asserting a premises liability action “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.”
Mouzon v Achievable Visions, 308 Mich App 415, 418; 864 NW2d 606 (2014) (quotation marks
and citation omitted). The duty owed by a possessor of land to a visitor depends on whether the

                                                 -6-
visitor is classified as a trespasser, licensee, or invitee. Stitt v Holland Abundant Life Fellowship,
462 Mich 591, 596; 614 NW2d 88 (2000). Plaintiff was on defendant’s property in his capacity
as a truck driver for H&P to pick up a load of waste for transportation to the landfill. Defendant
is a treatment facility that treats nonhazardous and hazardous waste before it is deposited in a
landfill. The parties do not appear to dispute that plaintiff was an invitee because he was on
defendant’s property for a business purpose. “[I]nvitee status is commonly afforded to persons
entering upon the property of another for business purposes.” Id. at 597. “[A]n invitee is
entitled to the highest level of protection under premises liability law.”

        “In general, 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.” Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001), citing Bertrand
v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185 (1995). This duty generally does not,
however, include the removal of dangers that are open and obvious. Lugo, 464 Mich at 516. As
our Supreme Court explained in Lugo, “the open and obvious doctrine should not be viewed as
some type of ‘exception’ to the duty generally owed invitees, but rather as an integral part of the
definition of that duty.” Id. at 516. Nevertheless, “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.” Id. at 517.

       In Bertrand, our Supreme Court thoroughly explained how to define the scope of the duty
owed by a premises possessor when there are “special aspects” of an otherwise ordinary, open
and obvious condition:

       The invitor’s legal duty is “to exercise reasonable care to protect invitees from an
       unreasonable risk of harm caused by a dangerous condition of the land” that the
       landowner knows or should know the invitees will not discover, realize, or protect
       themselves against. [Williams v Cunningham Drug Stores, Inc, 429 Mich 495,
       499; 418 NW2d 381 (1988)], citing 2 Restatement Torts, 2d, § 343, pp 215–216.
       Section 343 provided:

                      A possessor of land is subject to liability for physical harm
               caused to his invitees by a condition on the land if, but only if, he

                      (a) knows or by the exercise of reasonable care would
               discover the condition, and should realize that it involves an
               unreasonable risk of harm to such invitees, and

                      (b) should expect that they will not discover or realize the
               danger, or will fail to protect themselves against it, and

                      (c) fails to exercise reasonable care to protect them against
               the danger. [Emphasis added.]

       A claim that the invitor has breached the duty to exercise reasonable care to
       protect invitees from unreasonable risks of harm has traditionally been premised
       on three theories: failure to warn, negligent maintenance, or defective physical

                                                 -7-
structure. Consequently, invitors may be held liable for an invitee’s injuries that
result from a failure to warn of a hazardous condition or from the “negligent
maintenance of the premises or defects in the physical structure of the building.”
Williams, [429 Mich] at 499–500.

       The Restatement provided:

              A possessor of land is not liable to his invitees for physical
       harm caused to them by any activity or condition on the land
       whose danger is known or obvious to them, unless the possessor
       should anticipate the harm despite such knowledge or obviousness.
       [2 Restatement Torts, 2d, § 343A(1), p 218. Emphasis added.]

The accompanying comments provided that §§ 343 and 343A are to be read
together. Where a condition is open and obvious, the scope of the possessor’s
duty may be limited. While there may be no obligation to warn of a fully obvious
condition, the possessor still may have a duty to protect an invitee against
foreseeably dangerous conditions. Thus, the open and obvious doctrine does not
relieve the invitor of his general duty of reasonable care.

        When §§ 343 and 343A are read together, the rule generated is that if the
particular activity or condition creates a risk of harm only because the invitee does
not discover the condition or realize its danger, then the open and obvious
doctrine will cut off liability if the invitee should have discovered the condition
and realized its danger. On the other hand, if the risk of harm remains
unreasonable, despite its obviousness or despite knowledge of it by the invitee,
then the circumstances may be such that the invitor is required to undertake
reasonable precautions. The issue then becomes the standard of care and is for
the jury to decide.

       A comment accompanying the Restatement explained:

               There are, however, cases in which 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. In such cases the possessor is not relieved of the duty of
       reasonable care which he owes to the invitee for his protection.
       This duty may require him to warn the invitee, or to take other
       reasonable steps to protect him, against the known or obvious
       condition or activity, if the possessor has reason to expect that the
       invitee will nevertheless suffer physical harm.

               Such 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, or will forget what he has
       discovered, or fail to protect himself against it. Such reason may

                                        -8-
      also arise where the possessor has reason to expect that the invitee
      will proceed to encounter the known or obvious danger because to
      a reasonable man in his position the advantages of doing so would
      outweigh the apparent risk. In such cases the fact that the danger is
      known, or is obvious, is important in determining whether the
      invitee is to be charged with contributory negligence, or
      assumption of risk. . . . It is not, however, conclusive in
      determining the duty of the possessor, or whether he has acted
      reasonably under the circumstances. [2 Restatement Torts, 2d, §
      343A, comment f, p 220. Emphasis added.]

      We recently considered the open and obvious danger doctrine in Riddle v
McLouth Steel Products, 440 Mich 85; 485 NW2d 676 (1992). . . .

      The majority in Riddle stated:

              [T]he “no duty to warn of open and obvious danger” rule is
      a defensive doctrine that attacks the duty element that a plaintiff
      must establish in a prima facie negligence case. A negligence
      action may only be maintained if a legal duty exists which requires
      the defendant to conform to a particular standard of conduct in
      order to protect others against unreasonable risks of harm. If the
      plaintiff is a business invitee, the premises owner has a duty to
      exercise due care to protect the invitee from dangerous
      conditions. . . . However, where the dangers are known to the
      invitee or are so obvious that the invitee might reasonably be
      expected to discover them, an invitor owes no duty to protect or
      warn the invitee unless he should anticipate the harm despite
      knowledge of it on behalf of the invitee. . . .

              Once a defendant’s legal duty is established, the
      reasonableness of the defendant’s conduct under that standard is
      generally a question for the jury. . . . The jury must decide whether
      the defendant breached the legal duty owed to the plaintiff, that the
      defendant’s breach was the proximate cause of the plaintiff’s
      injuries, and thus, that the defendant is negligent.

              If, for example, the dangerous conditions on the premises
      are hidden or latent, the premises owner is obliged to warn the
      invitee of the dangers. Defendant’s failure to warn under these
      circumstances may indicate a breach of the legal duty owed
      plaintiff. If the conditions are known or obvious to the invitee, the
      premises owner may nonetheless be required to exercise
      reasonable care to protect the invitee from the danger. . . . What
      constitutes reasonable care under the circumstances must be
      determined from the facts of the case. While the jury may
      conclude that the duty to exercise due care requires the premises

                                       -9-
              owner to warn of a dangerous condition, there is no absolute duty
              to warn invitees of known or obvious dangers. . . .

                Thus, even though there may not be an absolute obligation to provide a
       warning, this rule does not relieve the invitor from his duty to exercise reasonable
       care to protect his invitees against known or discoverable dangerous conditions.
       Williams, [429 Mich] at 499, citing 2 Restatement Torts, 2d, § 343, pp 215–216.
       Duty exists because the relationship between the parties gives rise to a legal
       obligation. . . . However, overriding public policy may limit the scope of that
       duty. . . .

               With the axiom being that the duty is to protect invitees from
       unreasonable risks of harm, the underlying principle is that even though invitors
       have a duty to exercise reasonable care in protecting their invitees, they are not
       absolute insurers of the safety of their invitees. . . . Consequently, because the
       danger of tripping and falling on a step is generally open and obvious, the failure
       to warn theory cannot establish liability. However, there may be special aspects
       of these particular steps that make the risk of harm unreasonable, and,
       accordingly, a failure to remedy the dangerous condition may be found to have
       breached the duty to keep the premises reasonably safe. [Bertrand, 449 Mich at
       609-614 (second, fourth, fifth, and sixth alterations in original; first and fifth
       ellipses in original; final emphasis added).]

         The Bertrand Court considered the above legal principles in the context of premises
liability cases involving steps and further derived the following legal principles:

                In summary, because steps are the type of everyday occurrence that people
       encounter, under most circumstances, a reasonably prudent person will look
       where he is going, will observe the steps, and will take appropriate care for his
       own safety. Under ordinary circumstances, the overriding public policy of
       encouraging people to take reasonable care for their own safety precludes
       imposing a duty on the possessor of land to make ordinary steps “foolproof.”
       Therefore, the risk of harm is not unreasonable. However, where there is
       something unusual about the steps, because of their “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. If the jury determines that the risk of harm was
       unreasonable, then the scope of the defendant’s duty to exercise reasonable care
       extended to this particular risk. At any rate, the trial court may appropriately
       consider the specific allegations of the breach of the duty of reasonable care, such
       as failure to warn, negligent maintenance, or dangerous construction. If the
       plaintiff alleges that the defendant failed to warn of the danger, yet no reasonable
       juror would find that the danger was not open and obvious, then the trial court
       properly may preclude a failure to warn theory from reaching the jury by granting
       partial summary judgment. [Id. at 616-617 (citation omitted; emphasis added).]


                                              -10-
      In Bertrand, the plaintiff fell backwards off a step near a door located at the defendant’s
automobile service garage. Id. at 621-622. The Court described the scene as follows:

       As [the plaintiff] was exiting the door [from the lounge area], other people were
       entering. The plaintiff walked through the door and was facing backward as she
       held the door open for the others to enter. The door opened out onto a sidewalk
       that was the width of the door. The sidewalk was an elevated walkway that ran
       along the side of the service area. On the left were vending machines. The
       cashier’s window was on the right. The door was hinged on the right and opened
       out. Pictures of the area reveal that a person leaving the lounge area would have
       to walk through the narrow passage between the open door and the vending
       machines, step down off the sidewalk, walk around the door, and then step back
       up onto the sidewalk to reach the cashier’s window. The entire length of the top
       edge of the sidewalk was painted bright yellow, as well as the vertical part when
       viewed from the service area. [Id. at 622.]

The plaintiff testified at her deposition that after holding the door open for the other people to
enter the lounge area, she stepped back to let the door close because she could not step to the side
due to the presence of the vending machine, and she fell down the step as she stepped back. Id.
at 622-623.

        The Bertrand Court determined that although the plaintiff could not rely on a failure to
warn theory because “no reasonable juror would disagree that the danger of falling was open and
obvious,” the condition could still be considered “unreasonably dangerous[] but not for want of a
warning.” Id. at 623. The Court concluded, “when we view the plaintiff’s allegations in the
light most favorable to her, we find a genuine issue regarding whether the construction of the
step, when considered with the placement of the vending machines and the cashier’s window,
along with the hinging of the door, created an unreasonable risk of harm, despite the obviousness
or the invitee’s knowledge of the danger of falling off the step.” Id. at 624. The Court reasoned
as follows:

              Here, the plaintiff fell backward off a step after holding the door open for
       other customers to pass through in an area of the defendant’s building where
       customers were expected to traverse. In the light most favorable to the plaintiff,
       one can reasonably argue that the defendant should have reasonably anticipated a
       congested pedestrian traffic pattern causing an invitee to fall off the step.

              We cannot find as a matter of law that the risk of harm was reasonable.
       Because a genuine issue existed regarding whether the defendant breached its
       duty to protect the plaintiff against an unreasonable risk of harm, in spite of the
       obviousness or of the plaintiff’s knowledge of the danger, summary disposition
       was inappropriate. Whether this risk of harm was unreasonable and whether the
       defendant breached a duty to exercise reasonable care by failing to remedy the
       danger are issues for the jury to consider. [Id. at 624-625.]

       Subsequently, in Lugo, 464 Mich at 517-518, our Supreme Court emphasized that in this
context, “[c]onsistent with Bertrand, . . . the critical question is whether there is evidence that

                                               -11-
creates a genuine issue of material fact regarding whether there are truly ‘special aspects’ of the
open and obvious condition that differentiate the risk from typical open and obvious risks so as
to create an unreasonable risk of harm, i.e., whether the ‘special aspect’ of the condition should
prevail in imposing liability upon the defendant or the openness and obviousness of the condition
should prevail in barring liability.”

        Finally, the following statements by the Lugo Court are specifically pertinent to the
factual circumstances at issue in this case:

       [I]n resolving an issue regarding the open and obvious doctrine, the question is
       whether the condition of the premises at issue was open and obvious and, if so,
       whether there were special aspects of the situation that nevertheless made it
       unreasonably dangerous. In a situation where a plaintiff was injured as a result of
       a risk that was truly outside the open and obvious doctrine and that posed an
       unreasonable risk of harm, the fact that the plaintiff was also negligent would not
       bar a cause of action. This is because Michigan follows the rule of comparative
       negligence. Under comparative negligence, where both the plaintiff and the
       defendant are culpable of negligence with regard to the plaintiff’s injury, this
       reduces the amount of damages the plaintiff may recover but does not preclude
       recovery altogether. [Id. at 523.]

“Accordingly, it is important for courts in deciding summary disposition motions by premises
possessors in ‘open and obvious’ cases to focus on the objective nature of the condition of the
premises at issue, not on the subjective degree of care used by the plaintiff.” Id. at 523-524.

         In this case, it was undisputed that the rail door was the only entry point in that area of
the building. It was opened from the outside by pulling a pull cord, and the door was on a timer
that caused it to close automatically. There was testimony from plaintiff and two other truck
drivers that the conditions inside the chemical fixation building were sometimes smoky to the
point that visibility was affected. At times, there could be “whiteouts” that severely reduced
visibility to the point that it was even difficult for the driver to see the hood of his truck. Inside
the building, there were excavators that loaded waste into the trucks to be hauled away and hi-los
“zipping around.” All three drivers testified that there were times when they walked through the
rail door (rather than driving through it) to avoid these hazards inside the building when there
was severely reduced visibility due to the smoky conditions. Plaintiff specifically testified that
the conditions were particularly smoky on the day of the incident and that he chose to walk
through the rail door that day because he could not see anything and did not want to hit anyone
with his truck. Sheridan testified that the pedestrian door, which was located by the front door,
was over 2,000 feet away from the rail door and that it was not accessible by walking from the
rail door area because doing so would require walking through an area of tanks and pipes that
could not be traversed on foot. Plaintiff’s expert opined that the rail door’s current safety
features, combined with the speed at which the door descended, would not protect an
approaching pedestrian from impact. Plaintiff’s expert also opined that the descending door
could not be heard above the noise level of defendant’s facility.

       There was also testimony from individuals employed by defendant acknowledging that
the conditions inside the building could be steamy or smoky to the point of affecting visibility.

                                                -12-
There was further testimony indicating that it was “uncommon” for a driver to walk through the
rail door to obtain the manifest. However, Haratyk testified that the conditions were less steamy
than normal on the day of the incident and that the air was “clear.” There was also testimony
that people were not supposed to walk through the rail door, although there were no signs
prohibiting pedestrian use. Defendant’s employees also testified that there was communication
between the truck drivers and the excavator operators when conditions were steamy inside the
building. According to Haratyk, drivers would beep their horns as they drove in and the
operators would respond by beeping their horns when the truck was properly parked. Berry
testified that operators would contact truck drivers to tell them to wait for steam to clear before
entering and that there were “door spotters” when conditions were especially steamy. Haratyk
testified that the rail door’s safety features, including its photo-eye that sensed the presence of an
obstacle under the door and the door’s pressure sensor that would reverse the door if the bottom
of the door hit an obstacle, were operating properly when tested shortly after plaintiff reported
the incident. Haratyk also testified that the door automatically went back up when he walked
through it.

        We concur with defendant that as presented, we cannot ascertain a question as to whether
plaintiff was aware of the conditions presented by the rail door and the hazards inside the
building, and these conditions were therefore open and obvious. See Hoffner v Lanctoe, 492
Mich 450, 461; 821 NW2d 88 (2012) (“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.”). But that does not end our analysis. Rather, the record
reveals the existence of conflicting evidence. This conflicting evidence regarding the nature of
the steamy conditions and degree of visibility on the day of the incident, as well as whether the
combination of all of the hazards presented at the rail door entrance—a single entrance through a
high-speed door that closed automatically pursuant to a timer and had certain safety features that
may not have provided adequate protection for approaching pedestrians specifically, the potential
for extreme smoke or steam severely reducing visibility while driving large trucks, and the
presence of an excavator and hi-los driving around in the vicinity—constituted special aspects
from which the trier of fact could conclude made the risk of harm when entering the building
through the rail door unreasonable despite the open and obvious nature of the hazards. Hence,
viewing the evidence in a light most favorable to plaintiff as the nonmoving party, Maiden v
Rozwood, 461 Mich at 120, the combination of hazards at the rail door on a day when the
treatment process generated extreme smoke or steam would essentially force a truck driver such
as plaintiff to choose between the risk of a collision with an excavator or hi-lo while driving
through the rail door and the risk of being injured while walking through a door not sufficiently
safe for pedestrian traffic. The pedestrian door by the front door did not actually provide a
legitimate alternate means of entering the building on foot when a driver was to pick up a load at
a vat serviced by the rail door because doing so would have forced the driver to confront a whole
new set of conditions that were potentially dangerous for pedestrians. Thus, regardless of the
proper operation of the rail door, there were genuine issues of material fact with respect to
whether entry through the rail door, because of its “character, location, or surrounding
conditions,” presented a risk of harm that remained unreasonable despite these conditions being
open and obvious. Bertrand, 449 Mich at 617 (quotation marks and citation omitted).




                                                -13-
         Further, the record evidence makes clear that it was well known among defendant’s
employees that the rail door was the only available entry point in that area and that the treatment
process frequently generated a great deal of steam. Accordingly, viewing the evidence in a light
most favorable to plaintiff, there was a genuine issue of material fact regarding whether
defendant should have anticipated that an unreasonable risk of harm remained in navigating the
rail door entrance—including that truck drivers might determine that walking through the rail
door was the safest possible alternative5—and thus taken appropriate additional steps to protect
its invitees as a result; we cannot conclude that these conditions were reasonable as a matter of
law. Id. at 624-625. “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.”
Id. at 617.

        In a related vein, a premises liability claim requires a plaintiff “to establish that
defendant, as a premises owner, possessed actual or constructive notice of the dangerous
condition.” Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 10; 890 NW2d 344 (2016). The Lowrey
Court further explained the legal principles regarding a premises owner’s liability based on
notice of a dangerous condition:

                “The proprietor is liable for injury resulting from an unsafe condition
         caused by the active negligence of himself and his employees; and he is liable
         when the unsafe condition, otherwise caused, is known to the storekeeper or is of
         such a character or has existed a sufficient length of time that he should have
         knowledge of it.” [Id. (citation omitted).]

“The plaintiff, however, bears the burden of proof of establishing that the defendant breached
this duty of care, i.e., the defendant knew or should have known ‘of a dangerous condition on the
premises of which the invitee [was] unaware and fail[ed] to fix the defect, guard against the
defect, or warn the invitee of the defect.’ ” Id. at 10 n 2 (citation omitted; alterations in original).

        In this case, the evidence discussed above also demonstrates, when viewed in plaintiff’s
favor, that it could be reasonably inferred that defendant knew about the nature of the conditions
surrounding the rail door entry or at least should have discovered the risk of harm presented by
these conditions. Defendant’s employees were working in that area daily as well, and they knew
about how the rail door operated, the degree of steam produced as a normal part of the treatment
process, the nature of the operations occurring inside the building as excavators loaded trucks
with waste to be hauled away to the landfill, and that the new rail door had been in place for a
period of months. Thus, based on the evidence showing the character of the conditions
surrounding entry through the rail door that had been regularly encountered by truck drivers,
plaintiff presented sufficient evidence to create a genuine question of fact regarding whether
defendant had actual or constructive notice of the dangerous condition. Id. at 10.




5
    See Bertrand, 449 Mich at 611-612.


                                                 -14-
        As previously stated, the trial court granted summary disposition in defendant’s favor
based on the trial court’s conclusions (1) that the evidence showed that the rail door and its
safety mechanisms were functioning properly on the day of the incident; (2) that there was no
evidence of a defect in the door; (3) that there was no evidence showing that defendant was
actively negligent in maintaining the rail door; and (4) that even if there had been a defect in the
door, plaintiff failed to show that defendant had actual or constructive knowledge of that defect.

        Reviewing the trial court’s decision, we hold that in the proceedings before the trial court,
both the trial court and defendant erroneously focused solely on whether there was a defect in the
operation of the rail door itself, rather than considering all of the surrounding circumstances.
Such a singular focus was contrary to our Supreme Court’s instructions in Bertrand, 449 Mich at
617, 622-625. Rather the trial court should have made more general determinations as to
whether the entry to the chemical fixation building through the rail door presented a dangerous
condition subjecting invitees to an unreasonable risk of harm despite the proper operational
functionality of the rail door. Id. Such a directive is found in Bertrand, 429 Mich at 624, where
there was an issue of fact regarding whether “the construction of the step, when considered with
the placement of the vending machines and the cashier’s window, along with the hinging of the
door, created an unreasonable risk of harm, despite the obviousness or the invitee’s knowledge of
the danger of falling off the step.” Similarly, there exist within this record, genuine disputes of
fact regarding whether there were special aspects presented by the nature of the rail door
entrance and its attendant hazards at defendant’s facility that constituted an unreasonable risk of
harm despite that defendant’s injury was allegedly caused by an impact from the rail door—an
otherwise ordinary, open and obvious hazard. Stated differently, focusing solely on the rail door
in isolation in this case is analogous to focusing solely on the fact that the plaintiff in Bertrand
fell on a step, thereby ignoring the surrounding circumstances of the vending machine, the
congestion of pedestrians, the direction in which the door opened, the size and location of the
step, and the confined space created when the door was open. Accordingly, the analytical focus
must encompass all of the surrounding circumstances and here, not merely whether the rail door
was operating properly. See Bertrand, 449 Mich at 617, 622-625.

        We believe it necessary to further note that it is not the proper focus of our inquiry at this
stage of the proceedings to determine what extent, if any, plaintiff may have been negligent and
contributed to causing his injuries. Lugo, 464 Mich at 523-524. “The level of care used by a
particular plaintiff is irrelevant to whether the condition created or allowed to continue by a
premises possessor is unreasonably dangerous.” Id. at 522 n 5.6



6
  We also reject defendant’s argument that plaintiff’s expert could not provide any relevant
evidence in this matter. Contrary to defendant’s argument, plaintiff’s expert did not opine on the
law, the existence of a legal duty owed by defendant to plaintiff, or otherwise opine on whether
defendant was negligent. The expert did not attempt to create new legal definitions or standards,
nor did he make legal conclusions. “[T]he function of an expert witness is to supply expert
testimony. This testimony includes opinion evidence, when a proper foundation is laid, and
opinion evidence may embrace ultimate issues of fact.” Carson Fischer Potts & Hyman v
Hyman, 220 Mich App 116, 122; 559 NW2d 54 (1996). Plaintiff’s expert offered opinions about


                                                -15-
        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.




                                                          /s/ Jane M. Beckering
                                                          /s/ Stephen L. Borrello
                                                          /s/ Michael J. Kelly




whether the safety mechanisms currently installed on the rail door would prevent an impact with
an approaching pedestrian. Such opinions were not improper. Id.; see also MRE 704
(“Testimony in the form of an opinion or inference otherwise admissible is not objectionable
because it embraces an ultimate issue to be decided by the trier of fact.”).


                                             -16-
