            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



THOMAS BELMONT,                                                     UNPUBLISHED
                                                                    January 7, 2020
               Plaintiff-Appellant,

v                                                                   No. 344578
                                                                    Macomb Circuit Court
ST. JOHN MACOMB-OAKLAND HOSPITAL,                                   LC No. 2016-003827-NO

               Defendant-Appellee.


Before: FORT HOOD, P.J., and SAWYER and SHAPIRO, JJ.

SAWYER, J. (dissenting).

       I respectfully dissent.

       Unlike the majority, I am not persuaded that the wet condition on the floor was not open
and obvious and that the trial court erred in granting summary disposition in favor of defendant.

        A dangerous condition is open and obvious when “an average user with ordinary
intelligence [would] have been able to discover the danger and the risk presented upon casual
inspection.” Novotney v Burger King Corp (On Remand), 198 Mich App 470, 475; 499 NW2d
379 (1993). The majority acknowledges that the determination whether a danger is open and
obvious is based on the objective nature of the dangerous condition itself rather than an invitee’s
subjective awareness of the hazard at the time that the injury occurred. See id. at 474-475.

        In this case, the moisture on the ground that caused plaintiff to slip was open and
obvious. Plaintiff testified that he saw a housekeeper exit the room with a mop when he first
arrived at his wife’s hospital room. Plaintiff noticed some wetness around the bed, but testified
that he did not approach that area. Additionally, plaintiff was warned by his stepson to be
careful because the housekeeper had just mopped the floor. After plaintiff fell, he noticed that
there was some moisture on the ground that caused him to fall. Although plaintiff did not see
anyone mopping around the area where he fell, he testified that the floor shined like it was wet.
Plaintiff concluded that the moisture on the floor was probably from the housekeeper’s mop,
either by direct contact with the floor or from water droplets that spilled off the mop.




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         Based on the information available to plaintiff at the time of the accident, it is reasonable
to conclude that an average person with ordinary intelligence would have discovered the moist
area upon casual inspection. See Novotney, 198 Mich App at 475. Plaintiff was aware that the
housekeeper had mopped portions of the room shortly before he arrived. An ordinarily cautious
person with such information would have expected that water could have dripped off the mop
around the door as the housekeeper was leaving the room. Because plaintiff acknowledged that
he was able to see moisture on the floor after he fell, he could have easily avoided the potential
risk of danger. If plaintiff had only casually inspected the area where he was walking before he
fell, he would have avoided the wet area and would not have slipped and fell. Therefore, there is
no genuine issue of material fact regarding whether the hazardous condition was open and
obvious.

       I would affirm.



                                                              /s/ David H. Sawyer




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