                           STATE OF MICHIGAN

                            COURT OF APPEALS



GORDON JOSEPH BREDOW and SUZANNE                                     FOR PUBLICATION
BREDOW,                                                              October 30, 2014

               Plaintiff-Appellant,

v                                                                    No. 315219
                                                                     Kent Circuit Court
LAND & CO., PRD CONSTRUCTION INC d/b/a                               LC No. 11-011291-NO
LAND SERVICE AND SUPPLY, WYOMING
INDUSTRIAL CENTER LLC, AND WYOMING
INDUSTRIAL CENTER II LLC,

               Defendants-Appellees.


Before: RONAYNE KRAUSE, P.J., and HOEKSTRA and WHITBECK, JJ.

RONAYNE KRAUSE, P.J. (dissenting)

        I respectfully dissent because I cannot agree with the majority’s conclusion that plaintiff
lost his invitee status merely because he departed from his formal job responsibilities and
because I believe the trial court erred by failing to consider whether the hazard that injured
plaintiff was unreasonably dangerous.

        As the majority notes, the parties have at no time contested plaintiff’s status as an invitee
on defendants’ premises. I agree with the majority that the courts are not obligated to comply
with parties’ stipulations or statements of law. Marbury v Madison, 5 US (1 Cranch) 137, 177; 2
L Ed 60 (1803); Rice v Ruddiman, 10 Mich 125, 138 (1862); In re Finlay Estate, 430 Mich 590,
595-596; 424 NW2d 272 (1988). Of course, the parties themselves are bound to their own
stipulations, whether to facts or to law, and may not subsequently raise them as errors on appeal.
Chapdelaine v Sochocki, 247 Mich App 167, 177; 635 NW2d 339 (2001). Nonetheless, I agree
with the majority that the parties appear to have been acting under an assumption, rather than a
formal stipulation, that plaintiff was an invitee at the time of his injury. See Ortega v Lenderink,
382 Mich 218, 222-223; 169 NW2d 470 (1969). It is not improper for this Court to correct a




                                                -1-
misapprehension of law under which the parties before it may be operating, I disagree that any
such misapprehension existed here.1

        I further agree with the majority’s recitation of the general law governing the standard of
care owed by landlords to various classes of individuals on the land and the general definitions of
licensees and invitees. We all agree at least that plaintiff was an invitee when he initially entered
upon defendant’s premises. I take no exception to the general principle that an invitee can
outstay his or her welcome on any given premises and thereby become a licensee or trespasser.
However, I do not conclude that plaintiff did so here. The majority cites a number of cases in
which invitees became mere licensees or trespassers, but all of those cases have one curious
factual commonality: the plaintiffs all either did something they were not allowed to do or went
somewhere they were not allowed to go. Bedel v Berkey, 76 Mich 435, 439-440; 43 NW 308
(1889); Bennett v Butterfield, 112 Mich 96, 96-97; 70 NW 410 (1897); Hutchinson v Cleveland-
Cliffs Iron Co, 141 Mich 346, 347-349; 104 NW 698 (1905). It makes obvious sense for an
invitee to forfeit that status upon violating stated or readily apparent limitations on the scope of
their invitation. I find nothing in the record indicating that plaintiff was told or should have been
aware that he was not allowed to use the door or clear the access to the door.

        The majority further asserts that an invitee must make use of the premises in “the usual,
ordinary, and customary way” to maintain his or her status as an invitee, in reliance on
Armstrong v Medbury, 67 Mich 250; 34 NW 566 (1887) and an agglomeration of cases from
outside of Michigan.2 The words do appear in Armstrong, but in full context, the Court approved
of a jury instruction to have been given in its entirety as follows:



1
  Similarly, I note that plaintiff never formally conceded that this action sounds in premises
liability, but I agree entirely with the majority and the trial court that it does.
2
  Even if the out of state cases were binding, they do not even support the majority’s conclusions.
Briefly: in Bird v Clover Leaf-Harris Dairy, 102 Utah 330; 125 P2d 797 (1942), the plaintiff
parked a car in a location that was actually and readily apparently impermissible; in St Mary’s
Med Ctr of Evansville, Inc v Loomis, 783 NE2d 274, 282 (Ind Ct App, 2002), the plaintiff, who
was not an employee, entered a room clearly marked “employees only” but nevertheless retained
his invitee status because similar employees regularly entered that room; in Hogate v America
Golf Corp, 97 SW3d 44, 48 (Mo Ct App, 2002), the plaintiff lost any invitee status by riding a
bicycle onto premises that did not permit bicycling; in Gavin v O’Connor, 99 NJL 162, 163-166;
122 A 842 (1923), the plaintiff lost any invitee status by using a clothes line for the purpose of
swinging on it, contrary to its obvious intended purpose; in Brunengraber v Firestone Tire &
Rubber Co, 214 F Supp 420, 423 (SDNY, 1963), the plaintiff was an invitee when he entered
into an area customers such as himself were not to enter because defendant’s manager requested
he do so, but he lost that status by remaining in the area beyond the scope of the request; in Sims
v Giles, 343 SC 708, 733; 541 SE2d 857 (2001), the court discussed a worker who lost his
invitee status on the premises by leaving the location where he was supposed to be working; in
Barry v S Pac Co, 64 Ariz 116, 122; 166 P2d 825 (1946), an intoxicated and unconscious
individual using a railroad to sleep was a trespasser notwithstanding whatever pedestrian use


                                                -2-
              The plaintiff was bound to leave defendant’s premises by the usual,
       ordinary, and customary way in which the premises are and have been departed
       from, provided the same be safe and in good condition; and if for his own
       convenience, or other reason (than defect in the usual place of departure), he
       leaves such way, he becomes at best a licensee, and cannot recover for injuries
       from a defect outside of said way, unless it was substantially adjacent to such
       way, and in this case the defect was not so adjacent. [(Armstrong, 67 Mich at
       253).]

Incredibly, the situation at bar is the opposite: plaintiff was in fact attempting to depart from the
premises in the normal and customary manner, but was impeded by an alleged defect within that
way and was—albeit perhaps arguably incautiously—attempting to rectify the defect. Again,
plaintiff may not be able to recover for his injuries, but the fact that he was attempting to remove
what he apparently believed to be a hazard to his transit hardly seems like a frolic and detour.

        The majority also takes out of context a quotation from Buhalis v Trinity Continuing
Care, 296 Mich App 685, 697; 822 NW2d 254 (2012), regarding persons straying from obvious
paths of safety; in that case, this Court never held that the plaintiff ceased to be an invitee, but
rather that the defendant had satisfied the duty of care under the circumstances of the case.
Again, plaintiff was merely trying to go home via the normal and customary route that all such
employees were expected to, and did, take.3 Likewise, the fact that plaintiff was doing
something unnecessary to his job makes him no different from, say, any employee cleaning the
snow off his or her car in an employer’s parking lot after work in order to go home. If such an
employee were to slip and fall on ice while doing so, it is of course highly unlikely that the
employee could recover in Michigan. However, that preclusion would not be because the
employee had ceased engaging in acts that directly benefitted the employer and was instead
attempting to leave the premises, but rather due to a probable preclusive application of open and
obvious doctrine.

       I find the majority’s expansion of the rules governing the loss of invitee status grossly
unwarranted and inappropriate. Plaintiff was apparently just trying to go home and make the
way to doing so safe. Furthermore, there was evidence that he did so pursuant to expectations
from his employer. He did nothing and went nowhere that was implicitly or explicitly
disallowed by the premises owner. Finding that he lost his status as an invitee under the

might ordinarily be made of the railroad’s right-of-way; and in Page v Town of Newbury, 113 Vt
336, 340; 34 A2d 218 (1943), as the majority notes, the Court explained that “one entering may
become a trespasser by committing active and positive acts not included in the terms of his
license or authority to enter . . . ” In other words, all of these cases continue to stand merely for
the reasonable proposition that an invitee may lose that status by doing something explicitly or
implicitly impermissible on the premises.
3
 As I will discuss, a safer route existed that plaintiff could have taken, which has implications
pursuant to open and obvious doctrine. However, that alternate route was neither expected nor
normal for employees to take. The majority and I disagree about the extent to which the record
evidence shows plaintiff’s expected and normal egress from the building to have been safe.


                                                -3-
circumstances works an unprecedented and unsupported restriction on the nature of what
constitutes an invitee.

        Further, punishing an employee for attempting to abate a danger at his workplace is bad
public policy. Here, plaintiff was attempting to remove a potential injurious hazard from the
main entrance of his workplace to allow for fellow employees or other invitees to enter or exit
without the risk of harm. This is not a situation in which an individual willingly puts himself in
harm’s way by attempting to aid another on land over which he has no ownership or
responsibility. Here, plaintiff was at work and attempted to protect not only himself, but also his
workplace, fellow employees, and any other invitees. While an employee should not attempt to
remedy any hazard, such as the hypothetical pit in Lugo, other conditions, such as snow and ice
accumulation in Michigan, are common. It would be unreasonable to punish an employee if he
got to work first and decided to shovel the sidewalk. If the employee is not allowed to act upon
his desire to protect others, then a potential hazard remains on the land which could cause
injuries to people and a lawsuit for the employer. Determining that, regardless of the reason, any
employee must be punished for attempting to remedy any potential hazard at his workplace,
which consequently deters employees from removing those hazards, creates greater dangers for
invitees and the employer, and therefore is bad public policy.

       Consequently, defendants are required to make reasonable efforts to protect the safety of
those on the property, although not to the extent of guaranteeing that safety. Hoffner v Lanctoe,
492 Mich 450, 459; 821 NW2d 88 (2012). However, any hazard that is “open and obvious,”
meaning “it is reasonable to expect that an average person with ordinary intelligence would have
discovered it upon casual inspection,” is generally left to the invitee to avoid on his or her own
and is not part of the landowner’s duty. Id. at 460-461. Such open and obvious dangers may
impose a duty on the landowner if “special aspects” exist. Id. at 462. Whether a danger is open
and obvious is an objective analysis and based on the objective condition of the property. Id. at
461.

        Our Supreme Court has held that any icy roof in the winter posed an open and obvious
danger because anyone on the roof would immediately be aware that an icy roof is slippery.
Perkoviq v Delcore Homes-Lake Shore Pointe, Ltd, 466 Mich 11, 16-18; 643 NW2d 212 (2002).
Because the Court focused on the “slippery condition of the roof,” id. at 18-19, Perkoviq is just
another slip-and-fall case, remarkable because of the unusual surface involved, however,
irrelevant to the instant situation. It is, in fact, obvious that snow and ice on a sloped surface
would pose a slip-and-fall hazard to a person traversing that surface. That does not, ipso facto,
establish whether it is obviously dangerous to anyone not presently attempting to navigate the
surface. Although I tend to agree with defendants that any Michigan resident would be aware
that snow and ice tend to accumulate on roofs and along gutters, the dangerousness thereof is not
necessarily so obvious. To the contrary, snow is generally regarded as soft and harmless, save
perhaps the danger its weight might pose to the roof structure itself. Average Michigan residents
of ordinary intelligence would be expected to appreciate that a twenty-foot icicle would be
dangerous, but it was not the icicle here that injured plaintiff.

       I would not hold that the danger of snow and ice falling from a rooftop and thereby
causing injury is open and obvious per se. However, notwithstanding the fact that the standard
for openness and obviousness is objective, it calls for consideration of what a reasonable person

                                                -4-
would have been expected to discover on casual inspection from the plaintiff’s position.
Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 479; 760 NW2d 287 (2008). In other
words, it is not a purely academic inquiry, divorced from the unique context of any particular
case.

         The trial court, rather than engaging in a rote application of slip-and-fall cases to the
instant situation, properly concluded that other objective circumstances present at the scene
would have suggested to an average person of ordinary circumstances that the roof was actively
dropping dangerous ice and snow onto the ground, so there was likely “more where that came
from,” and that anything else on the roof would likely be precarious. Consequently, it would be
a matter of common knowledge that knocking down an icicle could destabilize any other
accumulation present. The evidence of the large and heavy ice chunks on the ground would have
suggested that there was indeed serious danger associated with being underneath the roof, in the
path of more such debris. The question is a close one, but I believe the trial court correctly found
that in this particular case, the danger was open and obvious.

        Even if a hazard is open and obvious, a premises possessor may nevertheless owe a duty
to an invitee to protect the invitee from “unreasonable” risks of harm. Hoffner, 492 Mich at 461.
Such “special aspects” must be construed narrowly and will only be found under exceptional and
extreme circumstances. Id. at 462. The two “special aspects” explicitly discussed by our
Supreme Court are dangers that are “effectively unavoidable” or that “impose an unreasonably
high risk of severe harm.” Lugo v Ameritech Corp, Inc, 464 Mich 512, 518; 629 NW2d 384
(2001). An example of the latter is “an unguarded thirty foot deep pit in the middle of a parking
lot” that may be avoidable but “would present such a substantial risk of death or severe injury to
one who fell in the pit that it would be unreasonably dangerous to maintain the condition, at least
absent reasonable warnings or other remedial measures being taken.” Id. Thus, the degree of
potential harm alone “may, in some unusual circumstances, be the key factor that makes such a
condition unreasonably dangerous.” Id. at 518 n 2. However, courts should not find such
extreme dangers merely because some severe harm is imaginable or because some severe harm
actually occurred. Id.

        Plaintiff argues that the trial court erred in finding that the danger of falling ice and snow
here was not effectively unavoidable. I disagree. If a plaintiff has a choice to decline to confront
the danger, it is not “effectively unavoidable.” Hoffner, 492 Mich at 468-469. Plaintiff contends
that he needed to clear the debris and icicle in order to exit the building. If plaintiff had, in fact,
actually been trapped, the condition would essentially by definition be effectively unavoidable.
Id. at 473. However, the evidence was that employees could have used an alternative door to the
building; doing so would merely have been inconvenient and was contrary to their established
and expected practice.4 Consequently, the danger could not have been effectively unavoidable.
Plaintiff makes much of the fact that he was attempting to abate a danger to others, but his


4
  It would appear that if plaintiff had in fact availed himself of the alternative, and ordinarily
unused, egress from the building, the majority would find that he would have lost his invitee
status in any event by departing from the normal and customary egress route.


                                                 -5-
motives, while noble, are simply not relevant to whether a condition is objectively effectively
unavoidable.

        Plaintiff also argues that the trial court erred in failing to find that the hazard was
unreasonably dangerous. I agree that the trial court erred by failing to address the possibility. A
situation that poses an “unreasonably high risk of severe harm” is an alternative “special aspect”
to a situation that is “effectively unavoidable.” The thirty-foot pit discussed by our Supreme
Court in Lugo all but guarantees serious injury to anyone who falls into it and therefore
constitutes as “special aspect” even if the pit is open and obvious. Defendants’ argument that the
situation could not possibly pose much of a risk of harm because no one had yet been harmed
would belie the situation being open and obvious. Furthermore, it is a variant on the “a priori”
argument rejected by our Supreme Court in Lugo: whether any sort of injury, severe or
otherwise, actually occurred is of little relevance to the degree of potential danger. The absence
of any special aspects found in Perkoviq is, again, irrelevant: the nature of the hazard posed by
ice and snow accumulation on roof to a person on that roof is fundamentally different from the
nature of that hazard posed to someone not on that roof.

        As with the question of whether accumulated snow and ice on a roof is open and obvious,
I would not hold that such accumulation is or is not unreasonably dangerous per se. The unique
details of the specific situation are critical. In light of the trial court’s failure to address this
question, I would likewise decline to do so and instead remand for the parties to address this
before the trial court. I would also decline to address defendants’ alternative argument that
plaintiff’s injury is his own fault: defendants appear to have raised this for the first time on
appeal, and I would leave it up to the parties to address on remand.



                                                              /s/ Amy Ronayne Krause




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