            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



DANIEL ARVIDSON,                                                   UNPUBLISHED
                                                                   December 3, 2019
               Plaintiff-Appellant,

v                                                                  No. 346938
                                                                   Jackson Circuit Court
POLLY’S FOOD SERVICES, INC., and HOME                              LC No. 17-002801-NO
CITY ICE COMPANY,

               Defendants-Appellees.


Before: O’BRIEN, P.J., and GADOLA and REDFORD, JJ.

PER CURIAM.

        Plaintiff Daniel Arvidson appeals as of right the trial court’s grant of summary
disposition to defendants under MCR 2.116(C)(10). We affirm.

                                  I. STATEMENT OF FACTS

        On August 25, 2016, plaintiff visited defendant Polly’s Food Service, Inc.’s (Polly’s)
grocery store in Brooklyn, Michigan. Just shortly after entering the store, while walking toward
the dairy department to pick up some yogurt, he slipped and fell in a puddle of water in the aisle
by a freezer that contained bags of ice stocked by persons hired by defendant Home City Ice
Company (HCI). Plaintiff described the puddle as six to eight feet in size, and he described the
lighting in the area as adequate. Plaintiff sued defendants alleging that they breached duties
causing him to suffer a serious injury to his knee. The trial court ruled that the puddle of water
was open and obvious and no special aspects existed. The trial court granted both defendants
summary disposition.

                                 II. STANDARD OF REVIEW

      We review de novo a trial court’s summary disposition decision to determine if the
moving party was entitled to judgment as a matter of law. Lowrey v LMPS & LMPJ, Inc, 500
Mich 1, 5; 890 NW2d 344 (2016). We also review de novo a trial court’s decision regarding
whether a party owed a duty to another. Fultz v Union-Commerce Assoc, 470 Mich 460, 463;
683 NW2d 587 (2004). A motion brought under MCR 2.116(C)(10) tests the factual support of a


                                               -1-
plaintiff’s claim, and is reviewed by considering the pleadings, admissions, and other evidence
submitted by the parties in a light most favorable to the nonmoving party. Latham v Barton
Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). Summary disposition is proper if there is
“no genuine issue regarding any material fact and the moving party is entitled to judgment as a
matter of law.” Id. A genuine issue of material fact exists 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). We consider the evidence
that was properly presented to the trial court in deciding the motion. Peña v Ingham Co Rd
Comm, 255 Mich App 299, 310; 660 NW2d 351 (2003). As explained in Peña,

        The moving party has the initial burden of supporting its position with
        documentary evidence, but once the moving party meets its burden, the burden
        shifts to the nonmoving party to establish that a genuine issue of disputed fact
        exists. Where the burden of proof at trial on a dispositive issue rests on a
        nonmoving party, the nonmoving party may not rely on mere allegations or
        denials in pleadings, but must go beyond the pleadings to set forth specific facts
        showing that a genuine issue of material facts exists. The moving party is entitled
        to a judgment as a matter of law when the proffered evidence fails to establish a
        genuine issue regarding any material fact. [Id. (quotation marks and citations
        omitted).]

                                           III. ANALYSIS

       Plaintiff first argues that the trial court erred because the condition on Polly’s premises
was not open and obvious since he and others did not see it before he fell. We disagree.

        The threshold issue in a premises liability action is whether the defendant owed the
plaintiff a duty. Fultz, 470 Mich at 463. “Duty is essentially a question of whether the
relationship between the actor and the injured person gives rise to any legal obligation on the
actor’s part for the benefit of the injured person.” Moning v Alfono, 400 Mich 425, 438-439; 254
NW2d 759 (1977). “In a premises liability action, a plaintiff must prove the elements of
negligence: (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3)
the breach was the proximate cause of the plaintiff’s injury, and (4) the plaintiff suffered
damages.” Benton v Dart Props, Inc, 270 Mich App 437, 440; 715 NW2d 335 (2006) (citation
omitted). “The duty owed to a visitor by a landowner depends on whether the visitor was a
trespasser, licensee, or invitee at the time of the injury.” Sanders v Perfecting Church, 303 Mich
App 1, 4; 840 NW2d 401 (2013).

       In this case, the parties and the trial court agreed that plaintiff had invitee status. In Stitt v
Holland Abundant Life Fellowship, 462 Mich 591, 596-597; 614 NW2d 88 (2000), our Supreme
Court explained the requisite standard of care owed by a landowner to an invitee as follows:

        An “invitee” is a person who enters upon the land of another upon an invitation
        which carries with it an implied representation, assurance, or understanding that
        reasonable care has been used to prepare the premises, and make it safe for the
        invitee’s reception. The landowner has a duty of care, not only to warn the
        invitee of any known dangers, but the additional obligation to also make the

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       premises safe, which requires the landowner to inspect the premises and,
       depending upon the circumstances, make any necessary repairs or warn of any
       discovered hazards. Thus, an invitee is entitled to the highest level of protection
       under premises liability law.

               A possessor of land is subject to liability for physical harm caused to his
       invitees by a condition on the land if the owner: (a) knows of, or by the exercise
       of reasonable care would discover, the condition and should realize that the
       condition involves an unreasonable risk of harm to such invitees; (b) should
       expect that invitees will not discover or realize the danger, or will fail to protect
       themselves against it; and (c) fails to exercise reasonable care to protect invitees
       against the danger. [Quotation marks and citations omitted.]

        Michigan law, however, does not charge landowners “with guaranteeing the safety of
every person who comes onto their land.” Hoffner v Lanctoe, 492 Mich 450, 459; 821 NW2d 88
(2012) (citation omitted). Both landowners and visitors must “exercise common sense and
prudent judgment when confronting hazards on the land.” Id. Michigan law does not require
perfection from landowners and requires that visitors take personal responsibility to take
reasonable care for their own safety. Id. at 460.

        A landowner has no duty to warn or protect a visitor from open and obvious dangers
“because such dangers, by their nature, apprise an invitee of the potential hazard, which the
invitee may then take reasonable measures to avoid.” Id. at 460-461 (citations omitted). In Lugo
v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001), our Supreme Court clarified
that “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.”

         Whether a particular hazard is open and obvious involves an objective standard; a hazard
is open and obvious if “an average person with ordinary intelligence would have discovered it
upon casual inspection.” Hoffner, 492 Mich at 461 (citations omitted). A landowner will remain
liable if “special aspects of a condition make even an open and obvious risk unreasonable.” Id.
When an open and obvious danger has special aspects that make it unreasonably dangerous
notwithstanding its open and obvious character, the landowner must still take reasonable steps to
protect the invitee. Id. In Hoffner, our Supreme Court specified two instances where an
otherwise open and obvious hazard may have special aspects that 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. [Id. at 463
       (quotation marks and citations omitted, emphasis in the original).]


                                                -3-
        Our Supreme Court reiterated the principle previously articulated in Lugo, that the open
and obvious doctrine cuts off liability if the condition creates a risk of harm only because the
invitee fails to discover the condition or realize its danger, and only if the risk of harm remains
unreasonable despite its obviousness must a landowner take reasonable precautions. Id. at 463.
Our Supreme Court explained that, for a hazard to be “effectively unavoidable” and excepted
from the application of the open and obvious doctrine, the plaintiff must have no choice but to
encounter the hazard. Id. at 468. Our Supreme Court clarified:

       Accordingly, the standard for “effective unavoidability” is that a person, for all
       practical purposes, must be required or compelled to confront a dangerous hazard.
       As a parallel conclusion, situations in which a person has a choice whether to
       confront a hazard cannot truly be unavoidable, or even effectively so. [Id. at 468-
       469.]

                                               * * *

       [W]hen confronted with an issue concerning an open and obvious hazard,
       Michigan courts should hew closely to the principles previously discussed. It
       bears repeating that exceptions to the open and obvious doctrine are narrow and
       designed to permit liability for such dangers only in limited, extreme situations.
       Thus, an “unreasonably dangerous” hazard must be just that—not just a
       dangerous hazard, but one that is unreasonably so. And it must be more than
       theoretically or retrospectively dangerous, because even the most unassuming
       situation can often be dangerous under the wrong set of circumstances. An
       “effectively unavoidable” hazard must truly be, for all practical purposes, one that
       a person is required to confront under the circumstances. A general interest in
       using, or even a contractual right to use, a business’s services simply does not
       equate with a compulsion to confront a hazard and does not rise to the level of a
       “special aspect” characterized by its unreasonable risk of harm. [Id. at 472-473
       (citations omitted, emphasis in the original).]

         In this case, plaintiff’s testimony established that, before he fell, he gazed in the direction
of the dairy department and proceeded toward it. He did not watch where he walked. He
testified that, when he slipped and landed on the floor, he saw a six to eight foot puddle of water
and had no difficulty seeing it. He admitted that adequate lighting illuminated the area and
nothing obscured his vision. Polly’s assistant store director, Joseph McCarty, who attended the
scene of the accident after being requested to come to the front of the store, testified that he
initially did not look at the area of the fall because he did not know why he had been summoned.
He approached the cash register and saw plaintiff speaking with a cashier. He testified that when
he learned of the incident he looked over at the location where plaintiff fell and saw water on the
floor from four to five feet away without any difficulty. The record reflects that no evidence
established that the water on the floor could not be seen upon casual inspection. On the contrary,
the evidence submitted to the trial court unequivocally established that a person of ordinary
intelligence, upon causal inspection, could see the water on the ground in the location where
plaintiff fell.



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        Our Supreme Court has directed that trial courts must not focus “on the subjective degree
of care used by the plaintiff.” Lugo, 464 Mich at 523-524. Rather, the test requires application
of an objective standard based on an average person of ordinary intelligence. Hoffner, 492 Mich
at 461. In this case, the trial court applied the appropriate objective analysis and concluded
correctly that the water hazard was open and obvious.

        Further, plaintiff failed to establish that any special aspects existed that made the hazard
unreasonably dangerous or effectively unavoidable. “The ‘special aspects’ exception to the open
and obvious doctrine for hazards that are effectively unavoidable is a limited exception.” Id. at
468 (emphasis added). For “effective unavoidability,” a person, “for all practical purposes, must
be required or compelled to confront a dangerous hazard.” Id. at 468-469. The record in this
case reflects that, from the time that HCI’s personnel filled the freezer until plaintiff’s fall
approximately eight minutes elapsed and numerous people traversed the area without incident.
The record does not establish that the hazard posed by the water constituted an unreasonably
dangerous condition. The record also provides no indication that the condition was effectively
unavoidable. The surveillance video footage presented to the trial court for its consideration
indicated that over 30 people walked through the area by the freezer without incident before and
after plaintiff fell. The record reflects that everyone but plaintiff successfully avoided the
hazard. No evidence established that special aspects existed to remove this case from the
application of the open and obvious doctrine. Therefore, the trial court did not err by applying
the open and obvious doctrine in this premises liability case.

        Plaintiff also argues that Polly’s and HCI should have had actual and constructive notice
of the existence of a puddle. We disagree.

        To establish notice, “plaintiff had to demonstrate that defendant knew about the alleged
water . . . or should have known of it because of its character or the duration of its presence.”
Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 11; 890 NW2d 344 (2016) (citing Serinto v Borman
Food Stores, 380 Mich 637, 640-641; 158 NW2d 485 (1968)). In this case, the evidence
established that neither Polly’s employees nor HCI’s personnel knew or had reason to know of
the water on the floor at the location where plaintiff fell. Plaintiff presented no direct evidence
that established when or how the water accumulated on the floor by the freezer. He speculated
that the water resulted from melting ice after HCI’s personnel restocked the freezer eight minutes
before he fell. McCarty assumed that the water originated from melted ice, but he admitted that
he did not know of its origin or even whether the liquid was water. No witness testified of seeing
ice or of noticing ice melting in the location of plaintiff’s fall. The surveillance video footage
does not indicate spilled ice by HCI’s personnel or any conduct by them that caused water to
accumulate in the area. It showed that numerous customers traversed the area between the time
that HCI’s personnel restocked the freezer and plaintiff’s fall. Some customers helped
themselves to bags of ice. No one testified that any bag of ice broke or any ice or water lay in
the area of the freezer immediately after HCI’s personnel restocked it. Neither plaintiff nor
McCarty testified to actually seeing any ice melting in the area. Plaintiff testified that he saw a
six to eight foot puddle of water. McCarty testified that he saw some small puddles of water.
Neither could testify as to the cause and origin of the water or the duration of its presence on the
premises.



                                                -5-
        The surveillance video footage established that a mere eight minutes elapsed from their
completion of the restocking to plaintiff’s fall. The record reflects that no one alerted either
Polly’s employees or HCI’s personnel of any ice or water in the vicinity of the freezer. The
record reflects that the condition did not exist a sufficient length of time that Polly’s was or
should have been alerted to it. Only approximately eight minutes elapsed from the restocking of
the freezer and plaintiff’s fall, and during that time, over 30 people walked through the area
where plaintiff fell. Not one stopped to alert a Polly’s employee. The record indicates that
plaintiff failed to establish the existence of a genuine issue of material fact respecting whether
defendants knew or should have known that a hazardous condition existed on the premises.

        Plaintiff contends that HCI’s personnel had a duty to inspect and clean up the area. The
record, however, reflects that HCI did not have a contractual obligation to Polly’s to do so, nor
did HCI have a policy that required its personnel to do so. HCI’s personnel testified that they
voluntarily cleaned up if they noticed any problem after restocking the freezer but no company
policy required them to do so. They simply applied common sense and if they noticed water or
ice they cleaned it up as a courtesy. McCarty testified that Polly’s employees were tasked with
taking steps to keep the premises clean if they noticed anything amiss. In this case, because of
the short period from the restocking of the freezer to plaintiff’s slip and fall, and because no one
alerted Polly’s employees of any ice or water, no one noticed the condition. Further, because of
the heavy customer traffic through the area without incident, defendants had no reason to know
that water lay on the floor.

        Plaintiff also argues that HCI had possession and control of the premises or had joint
control over the area around the freezer even though it did not own the premises. We disagree.

        “Under the principles of premises liability, the right to recover for a condition or defect of
land requires that the defendant have legal possession and control of the premises.” Morrow v
Boldt, 203 Mich App 324, 328; 512 NW2d 83 (1994), lv den 447 Mich 995 (1994). Possession
and control are required because the one with possession and control is usually in the best
position to prevent harm to others. Kubczak v Chemical Bank & Trust Co, 456 Mich 653, 662;
575 NW2d 745 (1998). Where a defendant does not have possession and control over the
premises, it does not owe an invitee a duty. Orel v Uni-Rak Sales Co, Inc, 454 Mich 564, 565;
563 NW2d 241 (1997). “[T]he existence of a legal duty is a question of law for the court to
decide.” Anderson v Wiegand, 223 Mich App 549, 554; 567 NW2d 452 (1997) (citation
omitted). If there is no duty, summary disposition is proper. Beaudrie v Henderson, 465 Mich
124, 130; 631 NW2d 308 (2001).

        The record indicates that HCI did not have possession or control of the area or share joint
control of it. Polly’s management employees’ uncontroverted testimonies established that
Polly’s owned the premises, owned the freezer, and maintained possession and control over the
entire area. HCI merely supplied the ice and its personnel filled Polly’s freezer when its supply
needed restocking. HCI did not possess or control the premises, and therefore, did not owe
plaintiff any duty. Further, if HCI possessed and controlled the premises as plaintiff contends,
the operation of the open and obvious doctrine in this case would still apply. HCI would have
had no duty to protect plaintiff from the open and obvious nature of the condition on the
premises. Accordingly, the trial court did not err.


                                                 -6-
        Lastly, plaintiff argues that HCI breached its duty of care and that it may be held liable
for ordinary negligence. We disagree.

        Claims premised on conditions of land and those sounding in ordinary negligence are
distinct. James v Alberts, 464 Mich 12, 18-19; 626 NW2d 158 (2001). This Court determines
whether a claim sounds in ordinary negligence or premises liability by examining “the complaint
as a whole” and looking “beyond mere procedural labels to determine the exact nature of the
claim.” Adams v Adams (On Reconsideration), 276 Mich App 704, 711; 742 NW2d 399 (2007).
This Court explained in Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 692; 822
NW2d 254 (2012), that an action sounds exclusively in premises liability rather than ordinary
negligence if a plaintiff’s injuries arose from an allegedly dangerous condition of the land.
“[T]his is true even when the plaintiff alleges that the premises possessor created the condition
giving rise to the plaintiff’s injury.” Id. “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). However, this duty does not extend to open and obvious dangers. Joyce
v Rubin, 249 Mich App 231, 238; 642 NW2d 360 (2002). The open and obvious doctrine
protects against liability regardless of the alleged theories of liability and despite creative
pleading to avoid the application of the doctrine. Millikin v Walton Manor Mobile Home Park,
Inc, 234 Mich App 490, 497; 595 NW2d 152 (1999).

        In this case, plaintiff’s complaint alleged that he suffered injury from a condition on the
premises. Analysis of his complaint as a whole and looking beyond mere procedural labels in
his pleading establish that his claims sounded in premises liability. Accordingly, his claim
against HCI, despite being couched as an ordinary negligence theory of liability, sounded in
premises liability subject to the application of the open and obvious doctrine. Because the open
and obvious doctrine applies in this case, HCI did not owe plaintiff any duty. Further, because
plaintiff’s case sounds in premises liability, plaintiff could not proceed under an ordinary
negligence theory of liability against HCI.

       We conclude that the trial court correctly ruled that, after viewing the evidence in a light
favoring plaintiff, no genuine issue of material fact existed regarding the open and obvious
nature of the puddle of water on which plaintiff slipped, and therefore, defendants were entitled
to summary disposition as a matter of law in this premises liability case.

       Affirmed.

                                                            /s/ Colleen A. O’Brien
                                                            /s/ Michael F. Gadola
                                                            /s/ James Robert Redford




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