                          STATE OF MICHIGAN

                           COURT OF APPEALS



ALEKSANDER HUK and MALGORZATA HUK,                                 UNPUBLISHED
                                                                   July 16, 2015
               Plaintiffs-Appellants,

v                                                                  No. 319822
                                                                   Macomb Circuit Court
GOLFPOINTE VILLAGE CONDOMINIUM                                     LC No. 2012-004662-NO
ASSOCIATION,

               Defendant-Appellee.


Before: HOEKSTRA, P.J., and JANSEN and METER, JJ.

PER CURIAM.

       Plaintiffs, Aleksander Huk and Malgorzata Huk, appeal as of right an order granting
summary disposition of their premises liability and loss of consortium claims against defendant,
Golfpointe Village Condominium Association, where they owned a condominium and where
Aleksander allegedly was injured in a fall when riding his bicycle. We affirm.

        Plaintiffs argue that the trial court erred by granting defendant’s motion for summary
disposition of their common-law premises liability claim on the basis that the dangers alleged
were open and obvious. We disagree.

       The trial court granted summary disposition pursuant to MCR 2.116(C)(10), which tests
the factual sufficiency of the complaint. Urbain v Beierling, 301 Mich App 114, 122; 835
NW2d 455 (2013).

       In evaluating a motion for summary disposition brought under Subrule (C)(10), a
       reviewing court considers affidavits, pleadings, depositions, admissions, and other
       evidence submitted by the parties in the light most favorable to the party opposing
       the motion. Summary disposition is properly granted if the proffered evidence
       fails to establish a genuine issue regarding any material fact and the moving party
       is entitled to judgment as a matter of law. [Klein v HP Pelzer Auto Sys, Inc, 306
       Mich App 67, 75; 854 NW2d 521 (2014) (citations omitted).]

       In a premises liability case, the duty that an owner or possessor of land owes to a visitor
depends on the status of the visitor at the time of the injury. Stitt v Holland Abundant Life
Fellowship, 462 Mich 591, 596; 614 NW2d 88 (2000); Stanley v Town Square Coop, 203 Mich
App 143, 146-147; 512 NW2d 51 (1993). A visitor can be a trespasser, a licensee, or an invitee,

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Stitt, 462 Mich at 596, depending upon the purpose of the landowner or premises possessor in
inviting the visitor onto the premises, Sanders v Perfecting Church, 303 Mich App 1, 4-5; 840
NW2d 401 (2013). Although the parties dispute whether Aleksander was a licensee or an
invitee, it is unnecessary to decide that question because, regardless of his status, the open and
obvious danger doctrine applied to bar his claim.

        An open and obvious danger apprises the plaintiff of the full extent of the risk involved.
Bullard v Oakwood Annapolis Hosp, 308 Mich App 403; ___ NW2d ___; 2014 WL 6909610, p
3 (2014); Kosmalski v St John’s Lutheran Church, 261 Mich App 56, 67; 680 NW2d 50 (2004).
As this Court explained in Bullard, 2014 WL 6909610, p 3:

               “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.” [Hoffner v Lanctoe, 492 Mich 450, 472;
       821 NW2d 88 (2012).] This standard is an objective, not subjective, one, and
       requires “an examination of the objective nature of the premises at issue.” Id.
       (quotation marks and citation omitted). “The objective standard recognizes that a
       premises owner is not required to anticipate every harm that may arise as a result
       of the idiosyncratic characteristics of each person who may venture onto his
       land.” Id. at 461 n 15.

        Plaintiffs argue that the deteriorating condition of the road and the presence of gravel
made it unreasonably dangerous. There is no question of fact that an average person of ordinary
intelligence would have discovered these alleged dangers upon casual inspection. Defendant’s
president testified that the roads in the complex were repaired annually after the winter. Before
Aleksander’s fall, the deterioration that allegedly caused the fall had been observed during a
walk-through of the complex and was marked with paint to make it stand out for scheduled
repairs. Despite Aleksander’s testimony that he only saw the pothole that he swerved to avoid
just before his accident and he did not recall seeing the gravel upon which his tire allegedly
slipped, Aleksander admitted that he had previously observed the road’s deterioration, which he
described as potholes surrounded by gravel. Plaintiffs even complained to each other about the
condition of defendant’s roads.

        On appeal, plaintiffs attempt to create a question of fact regarding the open and obvious
nature of the alleged dangers by claiming that the gravel could have been mistaken for an asphalt
patch. Although the record demonstrates that asphalt patchwork had been done previously for
defendant, no facts demonstrate that patchwork and loose gravel were indistinguishable upon
casual inspection. Moreover, Aleksander did not testify that he was unable to make such a
distinction. Plaintiffs’ argument is unpersuasive.

        Similarly, plaintiffs note that, in the pictures of the area where Aleksander fell, there was
no obvious gravel. Again, plaintiffs’ argument is unpersuasive because the pictures do not
reflect what a casual inspection would have revealed at the time of the fall. Rather, they were
taken after repairs had already begun.

      Plaintiffs also argue that the presence of the pothole, which Aleksander allegedly turned
to avoid, made the gravel surrounding the pothole an unavoidable, unreasonable risk.

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“[L]iability does not arise for open and obvious dangers unless special aspects of a condition
make even an open and obvious risk unreasonably dangerous. This may include situations in
which it is ‘effectively unavoidable’ for an invitee to avoid the hazard posed by such an
inherently dangerous condition.” Bullard, 2014 WL 6909610, p 3 (italics, quotation marks, and
citation omitted).

       “Unavoidability is characterized by an inability to be avoided, an inescapable
       result, or the inevitability of a given outcome.” An effectively unavoidable
       hazard, therefore, “must truly be, for all practical purposes, one that a person is
       required to confront under the circumstances.” Put simply, the plaintiff must be
       “effectively trapped” unless he faces the hazard. [Id. at 4 (italics and citations
       omitted).]

“As an example . . . if an open and obvious hazard exists at the only exit of a commercial
building, leaving the building would require an invitee to encounter the risk of harm without any
alternative.” Joyce v Rubin, 249 Mich App 231, 241-242; 642 NW2d 360 (2002). In contrast,
here, Aleksander was not trapped and he admitted that the alleged danger was avoidable. He
could have used the sidewalk or gotten off the bicycle and walked around the alleged danger.

        In sum, there is no genuine issue of material fact that the alleged dangers were open and
obvious. Therefore, the trial court properly granted defendant’s motion for summary disposition
of the common-law premises liability claim in plaintiffs’ complaint.

        Plaintiffs also argue that the trial court erred by granting defendant’s motion for summary
disposition of their claim that defendant had statutory duties of care, which are not barred by the
open and obvious danger doctrine. See Benton v Dart Props, Inc, 270 Mich App 437, 441; 715
NW2d 335 (2006) (the open and obvious doctrine does not operate to deny liability when the
defendant has a statutory duty to maintain the premises in reasonable repair). We disagree.

        Plaintiffs first argue that defendant had a statutory duty under the landlord-tenant
relationship act, MCL 554.131 et seq. In particular, MCL 554.139 provides, in relevant part:

             (1) In every lease or license of residential premises, the lessor or licensor
       covenants:

               (a) That the premises and all common areas are fit for the use intended by
       the parties.

               (b) To keep the premises in reasonable repair during the term of the lease
       or license, and to comply with the applicable health and safety laws of the state
       and of the local unit of government where the premises are located, except when
       the disrepair or violation of the applicable health or safety laws has been caused
       by the tenants wilful or irresponsible conduct or lack of conduct.

“When a statute’s language is clear and unambiguous, we must apply the terms of the statute to
the circumstances of the particular case . . . and we will not read words into the plain language
of the statute.” PIC Maintenance, Inc v Dep’t of Treasury, 293 Mich App 403, 410-411; 809
NW2d 669 (2011). As the trial court found, the plain language of MCL 554.139 applies to leases

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and licenses of residential premises; it does not impose a duty upon a condominium association
when dealing with condominium owners. Contrary to plaintiffs’ argument, the mere fact that
common-law duties of a landlord have been imposed on condominium associations in some
nonbinding case law does not create a separate statutory duty under this act.

       In addition, plaintiffs cite the following provision from the Condominium Act:

               A person or association of co-owners adversely affected by a violation of
       or failure to comply with this act, rules promulgated under this act, or any
       provision of an agreement or a master deed may bring an action for relief in a
       court of competent jurisdiction. The court may award costs to the prevailing
       party. [MCL 559.215(1).]

The plain language of MCL 559.215(1) merely provides a right to bring an action in court. It
does not impose any statutory duty of care on defendant such that it applies to the claims brought
in plaintiffs’ complaint, which did not raise the Condominium Act as a basis for relief.

        In sum, because plaintiffs failed to establish any statutory duty of care, the trial court
properly granted defendant’s motion to dismiss that portion of plaintiffs’ complaint.1 Plaintiffs’
loss of consortium claim was also properly dismissed. See Long v Chelsea Community Hosp,
219 Mich App 578, 589; 557 NW2d 157 (1996), abrogated in part on other grounds by Feyz v
Mercy Memorial Hosp, 475 Mich 663; 719 NW2d 1 (2006) (a derivative claim for loss of
consortium can no longer stand when the primary claim fails).

       Affirmed.




                                                            /s/ Joel P. Hoekstra
                                                            /s/ Kathleen Jansen
                                                            /s/ Patrick M. Meter




1
 Absent proof of any duty of care, it is unnecessary to address plaintiffs’ arguments regarding
comparative negligence. See Riddle v McLouth Steel Prod Corp, 440 Mich 85, 99; 485 NW2d
676, 681 (1992) (only when a defendant’s legal duty is established can a plaintiff’s fault be
compared with that of the defendant).


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