                          STATE OF MICHIGAN

                           COURT OF APPEALS


KEITH SMITH,                                                      UNPUBLISHED
                                                                  July 24, 2018
               Plaintiff-Appellant,

v                                                                 No. 337708
                                                                  Wayne Circuit Court
CITY OF DETROIT,                                                  LC No. 15-001269-NO

               Defendant/Cross Plaintiff,
and

MERLO CONSTRUCTION COMPANY INC.,

               Defendant/Cross Defendant-
               Appellee,
and

RAUHORN ELECTRIC INC.,

               Defendant/Cross Defendant/Cross
               Plaintiff,
and

PARSONS BRINCKERHOFF MICHIGAN INC.,
and POCO INC.,

               Defendants/Cross Defendants.


Before: MURPHY, P.J., and JANSEN and RONAYNE KRAUSE, JJ.

JANSEN, J. (concurring in part and dissenting in part).

       Although I agree with the majority that this matter is a premises liability action rather
than an ordinary negligence action, I disagree that a question of fact remains regarding whether
the missing slab was an open and obvious danger. For that reason, I dissent.

       A possessor of land does not owe a duty to an invitee relative to dangers that are open
and obvious. Hoffner v Lanctoe, 492 Mich 450, 460; 821 NW2d 88 (2012). This is “because
such dangers, by their nature, apprise an invitee of the potential hazard, which the invitee may

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then take reasonable measures to avoid.” Id. at 461. “A condition of the land is open and
obvious when it is reasonable to expect that an average person with ordinary intelligence would
have discovered it upon casual inspection.” Finazzo v Fire Equipment Co, ___ Mich App ___,
___; ___ NW2d ___ (2018) (Docket No. 338421); slip op at 3 (quotation marks and citation
omitted).

       As articulated by our Supreme Court in Hoffner,

              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. [Hoffner, 492 Mich at 472-473 (citations
       omitted; emphasis in original).]

        In my view, a missing slab of concrete in the sidewalk, even in darkness and without
warnings or barriers, is observable to an average person with ordinary intelligence. Although
plaintiff may not have had the benefit of daylight, there is no dispute that at least minimal street
lighting was present; plaintiff was not traveling in total darkness. Furthermore, a missing
sidewalk slab is not impassable, especially on a bicycle. Had plaintiff been more observant, he
could easily have avoided the missing sidewalk slab. 1 To be clear, I cannot conclude that any
record facts indicate that the hazard plaintiff faced was so unreasonably dangerous that it
constitutes an exception to the open and obvious doctrine.

       Based on the foregoing, I would affirm the trial court’s grant of summary disposition in
favor of defendant, Merlo Construction Company, Inc.


                                                             /s/ Kathleen Jansen




1
  I would also note that it would be unreasonable to expect that a sidewalk will always be clear of
any obstructions, and that plaintiff has an ongoing duty to remain observant of his surroundings.
For example it would not be uncommon to encounter children’s toys, fallen tree branches, or
people when riding a bicycle on a sidewalk. This may be the reason why some municipalities
require bicycles to be ridden on residential streets or city roads, not sidewalks.


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