                          STATE OF MICHIGAN

                           COURT OF APPEALS



KATHY MCGEE and RANDY MCGEE,                                       UNPUBLISHED
Conservators and Guardians for JONATHAN A.                         December 11, 2018
MCGEE,

               Plaintiffs-Appellants,

v                                                                  No. 341740
                                                                   Saginaw Circuit Court
SAGINAW SUPERIOR HOSPITALITY INC.,                                 LC No. 16-031306-NO
doing business as BAYMONT INN & SUITES,

               Defendant-Appellee.


Before: BOONSTRA, P.J., and JANSEN and GADOLA, JJ.

PER CURIAM.

        In this premises liability action, plaintiffs Kathy and Randy McGee, as conservators and
guardians for their son Jonathan A. McGee, appeal as of right the trial court’s opinion and order
granting defendant’s motion for summary disposition under MCR 2.116(C)(8) and (C)(10). We
affirm.

                                           I. FACTS

        On November 25, 2015, plaintiffs, their son Jonathan A. McGee, and their daughter
Angela McGee arrived in Bridgeport, Michigan, from their home in Tennessee to spend the
Thanksgiving holiday with their family. During their visit, the McGees stayed at a hotel owned
and operated by defendant. The McGees spent the following day with family, and plaintiffs
recall that it rained off and on throughout the entire day. When they returned to the hotel at
approximately 7:00 p.m., Randy entered first with the family dog, followed by Jonathan and then
Kathy. The hotel’s main entrance is located beneath an overhang and consists of one set of
automatic sliding doors leading into a vestibule, with a second set of sliding doors leading into
the lobby. As Jonathan passed through the first set of sliding doors, he slipped and fell on a
puddle of water on the tile floor. Kathy, who was walking just behind Jonathan, testified that she
did not observe the puddle until after he fell and that it was approximately one foot in diameter.
Likewise, Randy testified that he did not notice any water when he passed through the vestibule
ahead of Jonathan, as he was concentrating on walking the dog, but that he saw the puddle after
Jonathan fell. Randy testified that the puddle roughly covered one of the floor tiles. Plaintiffs
observed no signs cautioning guests of the wet floor.

                                               -1-
         Tiffany Ronan, the only hotel employee on duty that evening, testified that, although she
did not observe Jonathan’s fall, she heard a disturbance near the entrance. When she
investigated the cause, she saw Jonathan sitting on a nearby luggage cart with Kathy attending
him. Ronan noticed that the tile floor and a large area rug both appeared to be wet. She further
testified that a wet floor sign had been placed in view, though she could not recall the exact
positioning of the sign. According to plaintiffs’ testimony, Ronan told them that when it rains
the area rug is supposed to be repositioned to abut against the first set of sliding doors in order to
prevent guests from slipping as they enter. During deposition, however, Ronan did not recall
making this statement. The hotel’s general manager, William Mason, denied that the hotel staff
move the area rug but admitted that when the floor becomes wet and slippery, the staff
frequently dry it with a mop and place a wet floor sign to caution guests.

        Plaintiffs brought the present action alleging premises liability and asserting that, as a
result of Jonathan’s fall, he sustained a broken femur requiring surgery.1 Defendant moved for
summary judgment under MCR 2.116(C)(8) and (C)(10), arguing (1) that the water presented an
open and obvious danger obviating defendant’s duty of care with respect to the water and (2) that
defendant had no notice of the condition giving rise to liability. The trial court granted
defendant’s motion, holding that there were no questions of fact that the water presented an open
and obvious danger, and that defendant had no notice of the condition. Plaintiffs now appeal.

                                          II. ANALYSIS

                                  1. STANDARD OF REVIEW

        This Court reviews a trial court’s grant or denial of a motion for summary disposition de
novo. Ormsby v Capital Welding, Inc, 471 Mich 45, 52; 684 NW2d 320 (2004). Although the
trial court did not specify whether it granted defendant’s motion pursuant to MCR 2.116(C)(8) or
(C)(10), we construe it as having been granted under MCR 2.116(C)(10), as the trial court
considered documentary evidence beyond the pleadings. See Cuddington v United Health Servs,
Inc, 298 Mich 264, 270; 826 NW2d 519 (2012). A motion for summary disposition under MCR
2.116(C)(10) tests the factual sufficiency of the complaint, Joseph v Auto Club Ins Ass’n, 491
Mich 200, 206; 815 NW2d 412 (2012), and is properly granted if “there is no genuine issue
regarding any material fact and the moving party is entitled to judgment as a matter of law,”
Rose v Nat’l Auction Group, Inc, 466 Mich 453, 461; 646 NW2d 455 (2002). When reviewing a
motion brought under MCR 2.116(C)(10), the court considers the affidavits, depositions,
pleadings, admissions, and other documentary evidence submitted by the parties in the light most
favorable to the non-moving party. Id. Though the moving party bears the initial burden of
supporting its motion by such evidence, the party opposing the motion must thereafter go beyond
the pleadings and adduce evidence demonstrating that a genuine issue of material fact exists.
Bronson Methodist Hosp v Auto-Owners Ins Co, 295 Mich App 431, 440; 814 NW2d 670
(2012). “ ‘A genuine issue of material fact exists when the record, giving the benefit of
reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might


1
 Jonathan, who was born with Down syndrome, suffered from hip dysplasia before the accident
giving rise to the present action.


                                                 -2-
differ.’ ” Bahri v IDS Prop Cas Ins Co, 308 Mich App 420, 423; 864 NW2d 609 (2014), quoting
West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).

                               2. OPEN AND OBVIOUS DOCTRINE

        As in any negligence action, a plaintiff asserting a claim of premises liability must prove
the following four elements: (1) that the defendant owed the plaintiff a duty of care; (2) that the
defendant breached that duty; (3) that the defendant’s breach was the proximate cause of the
plaintiff’s injury; and (4) that the plaintiff suffered damages. Bialick v Megan Mary, Inc, 286
Mich App 359, 362; 780 NW2d 599 (2009). Generally, the duty owed by a premises possessor
to an invitee2 is “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). Under Michigan law, a premises possessor is liable for breach of
this duty when it is aware or should be aware of a dangerous condition that is unknown to the
invitee and fails to fix, guard against, or warn the invitee of the defect. Hoffner v Lanctoe, 492
Mich 450, 460; 821 NW2d 88 (2012).

        A premises possessor, however, is not an absolute guarantor of an invitee’s safety, as
those who enter the premises are likewise charged with exercising reasonable judgment when
confronting apparent dangers. Id. at 459. As such, premises possessors have no duty to protect
or warn invitees of dangers that are open and obvious. Id. at 460. A danger is open and obvious
if “it is reasonable to expect that an average person with ordinary intelligence would have
discovered it upon casual inspection.” Id. at 461. This examination is an objective one, focused
on the condition of the premises rather than on the actions of the invitee. Lugo, 464 Mich at 523-
624. A narrow exception to the open and obvious doctrine applies when a “special aspect” of the
condition renders the risk of harm unreasonable in spite of its obviousness or an invitee’s
knowledge of it. Id. at 516. Such special aspects include open and obvious conditions that are
“effectively unavoidable” or that “impose an unreasonably high risk of severe harm.” Id. at 518.
Accordingly, when “special aspects of a condition make even an open and obvious risk
unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions
to protect invitees from that risk.” Id. at 517.

        Even when viewed in the light most favorable to plaintiffs, the evidence in the present
case supports the conclusion that the puddle of water was open and obvious. Deposition
testimony from plaintiffs and from Ronan establishes that all three individuals were readily able
to observe the puddle of water after Jonathan fell. In contrast, no evidence was submitted
regarding the extent to which the water was visible before Jonathan’s fall. Neither plaintiff
claims to have specifically observed the tile floor when entering the hotel before Jonathan’s fall.
Indeed, Randy testified that he did not notice the water before Jonathan’s fall because his
attention was fixed on the family dog rather than on the floor. Similarly, and contrary to
plaintiffs’ argument on appeal, Kathy did not state that she was unable to observe the water
before Jonathan’s fall, only that she did not notice it until after the fact:



2
    The parties do not dispute that Jonathan was an invitee of defendant.


                                                  -3-
               Q. No big deal. So what was it? Did you see what caused him to fall?

               A. Yes, there was a puddle.

               Q. When did you first see the puddle?

              A. After he fell. It was dark outside when we came in, so the only light
       we had was whatever was in between the two double doors.

To the extent Kathy testified that it was dark outside when she and Jonathan entered the hotel,
she nonetheless admitted that the vestibule was lighted and did not claim that she had any
difficulty observing the puddle, which she estimated to be one foot in diameter, after Jonathan’s
fall. And while Kathy testified that she did not observe the puddle before Jonathan’s fall, she
trailed behind Jonathan as they entered the hotel. Finally, plaintiffs do not claim that their view
of the floor inside the vestibule was obscured by the sliding doors remaining closed until their
approach. The documentary evidence thus uniformly demonstrates that the water was readily
apparent.

         This Court has previously determined that hazards readily observable after a plaintiff has
fallen are open and obvious, even if the plaintiff did not notice them beforehand. For example,
in Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich App 710, 713; 737 NW2d 179 (2007),
the plaintiff slipped and fell on crushed grapes and grape residue on a grocery store floor.
Although the plaintiff argued that the grape residue was similar in color to the beige flooring and
was therefore inconspicuous, the Court noted that the plaintiff and multiple witnesses testified
the hazard was readily apparent once they examined the floor and that nothing would have
obscured it from view. Id. Reasoning that the plaintiff “would have noticed the potentially
hazardous condition had he been paying attention,” the Court concluded that the danger was
open and obvious Id. at 714. Similarly, in Buhalis v Trinity Continuing Care Servs, 296 Mich
App 685, 695; 822 NW2d 254 (2012), the plaintiff slipped and fell on a patch of ice but admitted
that she was able to see it after she had fallen and that she was aware of signs cautioning guests
that common areas could be wet, snow-covered, or slippery. An employee of the defendant also
testified that the ice was readily evident when he assisted the plaintiff after her fall. Id.
Accordingly, the Court determined that the ice was an open and obvious danger, as the plaintiff
“knew of the danger of ice on the patio[,] and other indicia of a potentially icy condition would
have alerted an average user of ordinary intelligence to discover the danger on casual
inspection.” Id.

        Plaintiffs instead compare the present case to Watts v Mich Multi-King, Inc, 291 Mich
App 98; 804 NW2d 569 (2010), and to Bialick v Megan Mary, Inc, 286 Mich App 359; 780
NW2d 599 (2009). In both cases, the plaintiffs slipped and fell on floors they averred were not
visibly wet, in spite of the fact that they specifically inspected the floors for hazards or caution
signs as they walked. Watts, 291 Mich App at 100-101; Bialick, 286 Mich App at 363. In light
of the plaintiffs’ testimony that they were unable to identify any spills, standing water, or other
hazardous conditions before falling, this Court concluded that there existed a question of fact
regarding whether the dangerous conditions were open and obvious. Watts, 291 Mich App at
105; Bialick, 286 Mich App at 364. However, we agree with the trial court’s assessment that
Watts and Bialick are inapposite. As distinguished from those cases, the evidence in the present

                                                -4-
case establishes both that plaintiffs did not specifically observe the floor for potential hazards
before Jonathan’s fall and that the water was plainly visible after the fact. Accordingly, adhering
to the analysis set forth by this Court in Kennedy and Buhalis, we conclude that the water could
have been observed by an individual of ordinary intelligence upon casual inspection.

        Next, plaintiffs contend that, even if the water was open and obvious, special aspects
rendered it an unreasonably dangerous risk. Specifically, plaintiffs maintain that the danger was
effectively unavoidable, as they were compelled to encounter the puddle of water as they passed
through the hotel’s main entrance with Jonathan. “[A]n ‘effectively unavoidable’ condition must
be an inherently dangerous hazard that a person is inescapably required to confront under the
circumstances.” Hoffner, 492 Mich at 456. By way of illustration, our Supreme Court has
hypothesized that an unavoidable danger would exist if a commercial building’s only exit were
surrounded by standing water, necessitating customers who wished to exit to pass through the
water. Lugo, 464 Mich at 518. Similarly, plaintiffs rely upon this Court’s opinion in Lymon v
Freedland, 314 Mich App 746, 761-762; 887 NW2d 456 (2016), in which the plaintiff, a home
healthcare aide, was injured as she attempted to traverse by foot the patient’s ice-covered
driveway. Because all routes to the home were equally hazardous and because the plaintiff was
“an essential home healthcare aide” who did not have the option of abandoning her patient by
failing to appear for work, this Court concluded that a question of fact existed with respect to
whether the open and obvious danger was effectively unavoidable. Id. at 762-763.

        In the present case, the evidence does not support plaintiffs’ position that the family was
inescapably required to confront the puddle of water. Kathy testified that the puddle was located
to the left of center of the first set of sliding doors and spanned approximately one foot in
diameter. Likewise, Randy testified that the puddle covered roughly one floor tile. Photographs
of the front entrance of the hotel illustrate that there are several feet of space at the sliding doors
through which guests may pass to enter. Indeed, Mason estimated the space to be approximately
five feet in width. Plaintiffs fail to account for the fact that a guest could easily navigate around
a one-foot puddle in the entryway. Moreover, Mason testified that the hotel has additional side
entrances that may be accessed with a hotel room key. Under Michigan case law, a risk is not
effectively unavoidable if an alternative route is available. Joyce v Rubin, 249 Mich App 231,
242; 642 NW2d 360 (2002). Though Randy testified that using a side entrance would have been
inconvenient, plaintiffs have not demonstrated that it would have been impracticable.
Accordingly, the open and obvious danger posed by the puddle of water was not effectively
unavoidable.

        Because we conclude that the puddle of water was an open and obvious condition
obviating defendant’s duty of care owed to plaintiffs, we decline to reach plaintiffs’ contention
that defendant had constructive notice of the hazard and therefore a duty to warn.




                                                 -5-
                            3. MISSING SURVEILLANCE VIDEO

        This Court’s conclusion is unaffected by plaintiffs’ argument that defendant failed to
produce surveillance footage capturing a portion of the incident.3 According to defendant, the
surveillance video was automatically overwritten on the system’s hard drive at some unknown
point in time.4 Plaintiffs maintain that the trial court should have afforded them the benefit of an
adverse inference under M Civ JI 6.01 regarding the placement of the area rug, thus raising a
question of fact with respect to defendant’s negligence in maintaining the premises.

       A trial court has the inherent authority to sanction a party for its failure to preserve
evidence, including instructing the jury that it may draw an inference adverse to the culpable
party. Brenner v Kolk, 226 Mich App 149, 160-161; 573 NW2d 65 (1997). Under M Civ JI
6.01,

       [a] jury may draw an adverse inference against a party that has failed to produce
       evidence only when: (1) the evidence was under the party’s control and could
       have been produced; (2) the party lacks a reasonable excuse for its failure to
       produce the evidence; and (3) the evidence is material, not merely cumulative,
       and not equally available to the other party. [Ward v Consol Rail Corp, 472 Mich
       77, 85-86; 693 NW2d 366 (2005).]

An inference under M Civ JI 6.01 simply permits a fact-finder to conclude that evidence would
have been adverse to the withholding party, leaving the fact-finder free to decide the matter for
itself. Lagalo v Allied Corp, 233 Mich App 514, 520; 592 NW2d 786 (1999), abrogated on other
grounds by Kelly v Builders Square, 465 Mich 29, 38 (2001).

        In the present case, plaintiffs fail to articulate how an adverse inference would have
altered the trial court’s analysis at the summary disposition stage. It is a fundamental principle
of appellate practice that “[a]n appellant may not merely announce his position and leave it to
this Court to discover and rationalize the basis for his claims, nor may he give issues cursory
treatment with little or no citation of supporting authority.” Peterson Novelties, Inc v City of
Berkley, 259 Mich App 1, 14; 672 NW2d 351 (2003) (citations omitted). Further, because
defendant was the moving party, the trial court was already compelled to view all evidence, and
to draw all reasonable inferences, in the light most favorable to plaintiffs. Thus, an adverse
inference under M Civ JI 6.01 would serve as a mere duplication of the trial court’s standard of
review in considering a motion for summary disposition. Finally, any information to be gleaned


3
  Though this issue was not addressed by the trial court, we are not precluded from reviewing it
on appeal. See Loutts v Loutts, 298 Mich App 21, 23-24; 826 NW2d 152 (2012) (holding that a
claim raised before the trial court and pursued on appeal is preserved for appellate review).
4
  Mason testified that he did not delete the video from the hard drive but simply took no further
steps to permanently save or copy the file. Though Mason was uncertain of the length of time
surveillance video is typically saved in the system, the present litigation had not yet been
initiated at the time he left his employment with defendant in February 2016.


                                                -6-
from the video with respect to defendant’s allegedly negligent placement of the area rug is
immaterial to this Court’s determination that summary disposition was appropriately granted
because the hazard was open and obvious. Accordingly, plaintiffs’ argument relative to the
surveillance video is unavailing.

      Affirmed.



                                                       /s/ Mark T. Boonstra
                                                       /s/ Kathleen Jansen
                                                       /s/ Michael F. Gadola




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