            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



CRISTAL ANDERSON,                                                  UNPUBLISHED
                                                                   October 1, 2019
               Plaintiff-Appellant,

v                                                                  No. 344401
                                                                   Macomb Circuit Court
DONALD P. MORRISSETT,                                              LC No. 2017-000845-NO

               Defendant-Appellee.


Before: K. F. KELLY, P.J., and TUKEL and REDFORD, JJ.

PER CURIAM.

       Plaintiff appeals as of right the trial court’s order granting defendant’s motion for
summary disposition under MCR 2.116(C)(10) and dismissal of plaintiff’s premises liability
case. We affirm.

                                      I. BACKGROUND

        Plaintiff, a United States Postal Service mail carrier, slipped and fell in a puddle on
defendant’s driveway after delivering mail to defendant’s house. Plaintiff alleged that the puddle
had an oily or slippery condition that caused her fall. During her deposition, she testified that
she delivered mail to the house and previously noticed a puddle in the area on defendant’s
driveway. Plaintiff testified that when it rained, a puddle always formed on the driveway
because of a gutter downspout that discharged water onto it. On the day of her accident it rained
early in the morning and when she arrived at defendant’s house, a two- to three-foot puddle
existed on the driveway. She walked to the mailbox attached to the top of a post beside the steps
that led to a door on the front porch of the house, deposited the mail, turned around and took a
few steps in the puddle and fell down. The puddle felt wet with a substance mixed with the
water. She testified that she noticed a brown stained color on the concrete but she could not
identify any foreign substance mixed with the water.

       Defendant testified that he grew up in the house and recently purchased it from his
brother. He recalled that the house’s downspout discharged water onto the driveway and had
done so “forever.” Defendant acknowledged that the area had dark staining on the driveway
which he speculated came from vegetation in the landscaping. He testified that he walked


                                               -1-
through the area and never noticed anything unusual about it and never had any problem. He did
not recall it being slippery. He said that he tried to clean the stain at one time by scrubbing it
with soap and water, which temporarily diminished the stain but because the water kept running
from the downspout it did not permanently eliminate the stain.

        Defendant moved for summary disposition under MCR 2.116(C)(10) on the ground that
plaintiff failed to establish that he owed her a duty and particularly that the condition on his land
was an open and obvious condition which meant that he owed plaintiff no duties. Plaintiff
opposed defendant’s motion, but the trial court agreed with defendant that the puddle was open
and obvious entitling him to summary disposition as a matter of law.

                                  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
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), reh den 481 Mich 882 (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).

                                         III. ANALYSIS

       Plaintiff argues that the trial court erred because the condition on defendant’s premises
was not open and obvious, and even if it was, special aspects existed that made the open and
obvious doctrine inapplicable, particularly the fact that plaintiff’s job required that she confront
the hazard and defendant did nothing to correct the defective condition. 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
classified as a trespasser, licensee, or invitee at the time of the injury.” Sanders v Perfecting
Church, 303 Mich App 1, 4; 840 NW2d 401 (2013).

                                                -2-
       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
        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. [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.

        Further, 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).
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.” Id. at 461 (citations omitted). However, 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 v Ameritech
Corp, Inc, 464 Mich 512, 516-517; 629 NW2d 384 (2001), 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. Hoffner, 492 Mich 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.]

                                              * * *

       Relevant here, it cannot be said that compulsion to confront a hazard by the
       requirement of employment is any less “avoidable” than the need to confront a
       hazard in order to enjoy the privileges provided by a contractual relationship, such
       as membership in a fitness club.

                                              * * *

       [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 argues that the danger posed by the puddle was not open and
obvious because the slipperiness she encountered was not noticeable to her until she slipped and
fell and that special aspects of the puddle posed a particularly severe risk of harm. We disagree.

        The record reflects that plaintiff observed a puddle on other occasions when she delivered
mail to the premises. She also saw a puddle on the day of her accident, noticed the stained area,
and knew that the puddle originated from a gutter downspout. Plaintiff described the dimensions
of the puddle, and the photos she presented to the trial court were consistent with her physical

                                                -4-
description of the puddle. Plaintiff’s testimony, defendant’s testimony, and the photos presented
to the trial court, all establish that an average person of ordinary intelligence would recognize the
presence of the plainly visible puddle and that the staining on the concrete could indicate
slipperiness on the underlying concrete. Our Supreme Court has directed that 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. Therefore, the fact that plaintiff may have
believed that the puddle was safe and chose to encounter the risk by walking through it is not
dispositive. The evidence in this case, when viewed in a light most favorable to plaintiff,
establishes that reasonable minds could not differ on the issue that the puddle was open and
obvious upon casual inspection by an average person of ordinary intelligence. The trial court,
therefore, did not err by concluding that the puddle was open and obvious.

       Plaintiff argues that special aspects justify imposing liability on defendant because the
condition of the puddle posed a severe risk of danger made effectively unavoidable by her job
which she asserts compelled her to encounter the hazard. We disagree.

        The fact that a person’s employment might involve facing an open and obvious hazard
generally does not make that hazard “effectively unavoidable.” See Bullard v Oakwood
Annapolis Hosp, 308 Mich App 403, 412; 864 NW2d 591 (2014). As explained in Hoffner, for
“effective unavoidability,” a person, “for all practical purposes, must be required or compelled to
confront a dangerous hazard.” Hoffner, 492 Mich at 468-469. The evidence in this case does not
support plaintiff’s contention.

         The record reflects that the puddle lacked any special aspects that could conceivably
render the open and obvious doctrine inapplicable. The photos about which defendant testified
and were presented to the trial court by plaintiff established that the puddle constituted an area of
water on the concrete driveway approximately two to three feet wide. Plaintiff’s testimony
described the condition consistent with the photos. Close examination of the photos reveals that
one could access the mailbox without actually having to step into the puddle. A clear path up the
driveway to the mailbox existed and alternatively one could walk around on the opposite side of
the puddle to access the mailbox. Similarly, once plaintiff delivered the mail she could have
avoided the puddle. The puddle presented a common, avoidable condition that did not constitute
a uniquely dangerous hazard. The puddle could have been avoided and did not pose an
unreasonable risk of harm because it was not “effectively unavoidable.” Based on the evidence,
the trial court correctly concluded that the puddle did not constitute an “effectively unavoidable”
condition on defendant’s premises. Evidence established that plaintiff had several optional paths
to and from the mailbox. De novo review of the record evidence in a light most favorable to
plaintiff does not support plaintiff’s claim that an “unreasonably dangerous” hazard existed that
she could not avoid.

        Plaintiff argues that Lymon v Freedland, 314 Mich App 746; 887 NW2d 456 (2016),
supports her contention that her job compelled her to encounter the puddle and walk through it to
deliver the mail. We disagree. In Lymon, this Court ruled that the plaintiff, a home healthcare
aide who provided care for an elderly patient who could not care for herself and required
constant care and could not be left alone, established that a question of fact existed whether the
condition was “effectively unavoidable.” Id. at 749-750, 761-762. The plaintiff established that

                                                -5-
a question remained whether she could not abandon her patient and was compelled to traverse
the hazardous condition, a snow covered sidewalk, to get to the patient. The Lymon Court
reasoned:

       [P]laintiff in this case was compelled to enter the premises because she was a
       home healthcare aide who could not abandon her patient. As an essential home
       healthcare aide, plaintiff did not have the option of failing to appear for work.
       Gloria was an elderly patient with dementia and Parkinson’s disease, and plaintiff
       was scheduled to care for her throughout the night. Hence, abandoning Gloria
       was not an option, leaving plaintiff compelled to traverse two equally hazardous
       pathways. On the one hand, plaintiff could traverse the steep, snowy, and icy
       driveway. On the other hand, plaintiff could have traversed the steep yard next to
       the driveway, but this route also contained slippery, hazardous conditions.
       Evidence showed that some individuals were able to successfully navigate this
       route to the home, supporting the argument that the hazards on the driveway may
       have been avoidable. However, other evidence left open a question of fact as to
       whether the yard provided a viable alternative route. [Id. at 761-762.]

        This case is significantly distinguishable from Lymon because plaintiff did not have to
encounter the risk to get her job done. The record reflects that plaintiff could have avoided the
puddle altogether to get to the mailbox to deliver the mail and to exit the premises. Plaintiff had
alternative routes available to access the mailbox and exit the area of the mailbox without
walking through the puddle. Plaintiff did not testify that the only available route to the mailbox
required traversing through the puddle nor could she. The evidence presented to the trial court
established that, despite alternative safe routes, plaintiff simply chose to encounter the hazard.

         Plaintiff failed to establish the existence of special aspects that warranted finding an
exception to the open and obvious doctrine. The puddle was neither an unreasonably dangerous
condition nor “effectively unavoidable.” The record reflects that the trial court properly
evaluated whether a reasonable invitee in plaintiff’s position would have been compelled by
extenuating circumstances to encounter the open and obvious puddle in the driveway and
traverse the hazardous condition. The trial court correctly concluded, based upon the evidence
presented to it, that no exception to the open and obvious doctrine required the imposition of
liability on defendant. Accordingly, the trial court properly granted defendant summary
disposition.

         Plaintiff’s final argument that defendant’s notice or knowledge of the puddle’s existence
gave rise to duties to warn invitees or to make the premises safe lacks merit. The open and
obvious doctrine cuts off liability because a premises owner 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.” Hoffner,
492 Mich at 460-461 (citations omitted). Because the open and obvious doctrine applied in this
case and no special aspects created exceptions to the applicability of the doctrine, defendant did




                                                -6-
not have a duty to warn or protect plaintiff from the open and obvious puddle hazard.
Therefore, the trial court properly granted defendant summary disposition.

      Affirmed.

                                                    /s/ Kirsten Frank Kelly
                                                    /s/ James Robert Redford




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