                           STATE OF MICHIGAN

                            COURT OF APPEALS



ESTATE OF DAVID NIEHAUS, by MARY                                      UNPUBLISHED
BANKA, Personal Representative,                                       July 25, 2017

               Plaintiff-Appellant,

v                                                                     No. 332938
                                                                      Kent Circuit Court
ASIA NAILS LLC,                                                       LC No. 14-009692-NO

               Defendant-Appellee.


Before: SAWYER, P.J., and HOEKSTRA and BECKERING, JJ.

PER CURIAM.

        In this negligence case, plaintiff, Mary Banka, as personal representative of the estate of
David Niehaus, appeals by right from the circuit court’s order of April 11, 2016, granting
defendant’s motion for summary disposition pursuant to MCR 2.116(C)(10) (no genuine issue of
material fact, and moving party entitled to judgment as a matter of law). For the reasons more
fully explained below, we affirm in part, reverse in part, and remand for further proceedings.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        On the morning of November 13, 2012, David Niehaus went to Asia Nails, where he
received a pedicure from nail technician and part owner of the salon, Vy Tran. Tran testified at
her deposition that when she gives pedicures, she turns on the hose that delivers water into the
foot basin of the pedicure chair and tests the “warmness” with her hand.1 Tran said that water
comes out of the hose cold, and she “put [her] hand there until it’s warm.” When the water is up
to the basin’s fill-line, she has the customer put his or her feet into the water and then asks if the


1
  Tran provided her deposition testimony through the use of a Vietnamese translator. At the
deposition, plaintiff’s counsel asked Tran about her English; specifically, whether she would “be
able to communicate with someone who speaks only English.” Tran replied, “I can
communicate with him regarding to nails, anything related to my profession, but I do not
communicate in—outside of that area, so my English is limited to those areas, but I can talk to
him—to people about nails.”



                                                 -1-
customer would like the temperature of the water increased or decreased. Then, Tran takes one
foot out of the basin to “clean and work on,” puts it back in, and then does the same with the
other foot. When she cleans the nails, and if the feet are dirty, Tran wears one or two disposable
gloves. After she has cleaned the feet and trimmed the nails, she drains the water from the basin
and rinses the feet with clean, running water. She then takes the feet out of the basin and
massages them. According to Tran, Niehaus never discussed his medical health with her, he did
not complain during his pedicure, and he left her a tip and seemed happy when he departed the
salon.

        A few hours after he left Asia Nails, Niehaus went to Metro Health Hospital, where he
presented with burns to both of his feet. Niehaus reported to the attendant that he had had a
pedicure earlier in the day and had not noticed anything at the time, “but after returning home he
attempted to take his socks off and the socks peeled the skin off of his feet.” The hospital record
noted that Niehaus had a history of diabetic neuropathy and could not feel anything in his feet, so
he did not report feeling any pain. The record described Niehaus’s injuries as follows:

       Evaluation of the bilateral feet does reveal partial thickness second degree burns
       noted to the bilateral feet. On the left foot there is complete skin sloughing noted
       of the skin of the entire foot which has sloughed off from just proximal to the
       malleoli distally over the entire foot. On the right lower extremity there is
       blistering and skin sloughing noted to the plantar surface of the foot and there is
       an area of skin sloughing noted on the dorsum of the right foot. No full thickness
       [i.e., third-degree] burns are appreciated.[2]

After being treated, Niehaus was instructed to contact the Spectrum Health burn center the next
day and stay off his feet as much as possible, walking only to the bathroom and kitchen as
necessary.

       Niehaus kept his appointment at the burn center the following day and was eventually
admitted to the hospital, where he stayed for roughly two weeks. During his stay, Niehaus
received treatment for his burns, including two rounds of debridement and a skin graft.
Niehaus’s condition stabilized and improved enough to allow his discharge on December 3,
2012.

        Niehaus died at home three days later. His death certificate lists his manner of death as
“accidental,” and lists “cutaneous burn injury of feet” as a significant condition contributing to
his death. David A. Smart, M.D., a forensic pathologist and the medical examiner who signed
Niehaus’s death certificate, testified at his deposition that the manner of death was listed as “
‘accidental’ due to the contribution of a traumatic injury to the death, specifically the burn injury
to the feet.” Smart explained,



2
  The Spectrum Health medical record indicates that Niehaus also had a third-degree burn “on
the dorsal aspect of his left foot extending from the distal interspaces to approximately 4 cm up
off the calf to the sharper point of demarcation.”


                                                -2-
       The injuries were of sufficient nature that they required hospitalization treatment
       for these injuries and even though he was at home when the death occurred, he
       was still undergoing treatment, and so that due to the proximity of the injury to
       the death and the ongoing treatment for the injury, then I felt that the injury had a
       significant contribution to the death; that it should be listed under a significant
       contributory condition to the death, and because it is a non-natural process, then
       the manner of death is certified as accidental.

         On October 10, 2014, plaintiff, Niehaus’s cousin, filed a two-count complaint alleging
negligence/gross negligence (Count I) and premises liability (Count II). In Count I, plaintiff
alleged that defendant owed Niehaus “a duty to use reasonable care and to not injure him,” and
that it breached these duties through the negligent and grossly negligent actions of its agents and
employees. Among other things, defendant negligently exposed Niehaus’s feet to scalding
water, failed to inspect and decrease the water’s temperature, failed to use a thermometer to
gauge the water’s temperature, failed to train and supervise employees to ensure they did not
give scalding hot footbaths, and failed to implement a maintenance plan for inspecting the
water’s temperature. Plaintiff also alleged that defendant negligently failed to inspect and
maintain the water heater and to adhere to all warnings and instructions on the water heater.
Plaintiff further alleged in Count I that defendant failed to warn “plaintiff” [sic, Niehaus] of an
“unreasonable dangerous condition.” As a direct result of defendant’s negligence, plaintiff
stated, Niehaus sustained second- and third-degree burns on his feet and ankles, required
multiple medical procedures, incurred huge medical expenses, and suffered various other injuries
and damages, including wrongful death.

         In Count II, plaintiff asserted that Niehaus was a business invitee of defendant’s, and that
defendant, as owner, possessor, and operator of the salon, owed Niehaus a duty of care to protect
him from unreasonable risks of harm on its premises that defendant knew or should have known
about. Defendant knew or should have known that there was scalding hot water in the footbath,
that it was unreasonably dangerous, and that it created an unreasonable risk of harm for Niehaus.
Defendant breached its duty by, among other things, failing to monitor the water temperature,
establish procedures for monitoring the water temperature, and alert Niehaus of the unreasonable
risks of harm due to scalding footbaths that defendant knew or should have known about.
Because of defendant’s breach of duty, Niehaus suffered various injuries and damages, including
wrongful death. 3

       Following discovery, on February 4, 2016, defendant moved for summary disposition
pursuant to MCR 2.116(C)(10). Defendant argued that plaintiff’s complaint sounded only in
premises liability. Relying on Valinski v Little Mexico Restaurant, unpublished opinion per
curiam of the Court of Appeals, issued September 24, 2002 (Docket 233446), in which this Court
concluded that “[s]erving food items on a hot skillet could be considered an activity or condition


3
  Plaintiff simply cut and pasted the paragraph alleging the harm Niehaus suffered from Count I
to the conclusion of Count II, without changing its numbering or alleging that the harm resulted
from defendant’s conduct as possessor of the premises where Niehaus was allegedly injured.


                                                -3-
on the land[,]” defendant argued that hot water in a pedicure basin was a condition on the land of
a nail salon. Defendant also argued that it had no notice of an alleged danger, since Tran had put
her hands into the same water without suffering burns. Defendant further argued that the danger
of the scalding water was open and obvious, since the average person would have immediately
withdrawn his or her feet from the hot water in the basin, and that the hot water was neither
exceptionally dangerous nor unavoidable. Finally, defendant argued that plaintiff could not meet
its burden to establish proximate cause because the proximate cause of Niehaus’s injuries was
not the hot water, but his failure to advise defendant of his diabetic neuropathy.

        Contrariwise, plaintiff stressed that it was the negligent provision of a service that caused
Niehaus’s injuries, not a condition on the land.4 Niehaus did not “fall into a pool of scalding
water, or receive his burns because faulty pipes burst,” plaintiff argued. Rather, defendant
caused Niehaus’s injuries by filling a pedicure basin with scalding water and directing him to
submerge his feet into it without first checking the temperature of the water in the full basin.
Plaintiff contended that it was axiomatic that a salon providing pedicures had a duty not to burn
the customer with scalding water and that, but for defendant’s actions and omissions in providing
the service, Niehaus would not have submerged his feet in the scalding water, which resulted in
foreseeable injuries.

        Following a hearing on defendant’s motion, the trial court found Valinski to be
persuasive5 and concluded that the matter sounded only in premises liability and that the scalding
water was an open and obvious danger that the average person would have avoided by
immediately removing his or her feet from the water before suffering injury. Accordingly, the
court granted defendant’s motion for summary disposition. Plaintiff now appeals.




4
  At one point, plaintiff had argued that Tran and Hai Dinh Le, Tran’s husband and co-owner of
the salon, negligently failed to inform themselves about the risk of scalding, and that defendant
violated the Michigan Plumbing Code by not installing an anti-scalding device. Plaintiff appears
to have abandoned these arguments, as she did not raise them in her brief to this Court.
5
  The court also relied upon Jahnk v Allen, 308 Mich App 472; 865 NW2d 49 (2014). In Jahnk,
the plaintiff fell while walking arm-in-arm with the defendant when her foot slipped off the edge
of concrete pavers that had been removed as part of a landscaping project on the defendant’s
property. The trial court granted the defendant’s motion for summary disposition on grounds
that the plaintiff’s claim sounded in premises liability, not ordinary negligence. On appeal, the
plaintiff argued that the claim sounded in ordinary negligence because the defendant had
negligently escorted her when she was suffering from dizziness. Id. at 476. This Court
disagreed, reasoning that the plaintiff’s injury occurred because of a condition on the land, i.e.,
the removal of the concrete pavers. The Court further noted that the defendant’s creation of the
condition did not transform a premises liability claim into a general negligence claim, stating “a
plaintiff cannot avoid the open and obvious danger doctrine by claiming ordinary negligence,
when the facts only support a premises liability claim . . . .” Id.


                                                -4-
                                         II. ANALYSIS

                                 A. STANDARD OF REVIEW

       We review a trial court’s decision on a motion for summary disposition de novo. Auto
Club Group Ins Co v. Burchell, 249 Mich App 468, 479; 642 NW2d 406 (2002). A motion for
summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a claim. Smith v
Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). “In reviewing a motion for
summary disposition brought under MCR 2.116(C)(10), a trial court considers affidavits,
pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by
the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion.”
Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). If the documentary
evidence shows that there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law, the trial court may grant the motion. Id; MCR 2.116(C)(10), (G)(5).

                                B. ORDINARY NEGLIGENCE

        Plaintiff contends that she alleged a valid claim for ordinary negligence and, therefore,
that the trial court erred in dismissing her entire claim under the open and obvious danger
doctrine. We agree.

        As an initial matter, we note that, given the proper factual scenario, a plaintiff may
simultaneously assert theories of premises liability and ordinary negligence; the assertion of one
does not preclude assertion of the other. See Laier v Kitchen, 266 Mich App 482, 493; 702
NW2d 199 (2005). A premises liability claim arises from a condition on the land, whereas a
claim of ordinary negligence arises from a defendant’s conduct. See James v Alberts, 464 Mich
12, 18-19; 626 NW2d 158 (2001). “To establish a prima facie case of negligence, a plaintiff
must prove four elements: (1) a duty owed by the defendant to the plaintiff, (2) breach of that
duty, (3) causation, and (4) damages.” Laier 266 Mich App at 495.

        Duty is a legally recognized obligation to conform to a particular standard of conduct
toward another. Rakowski v Sarb, 269 Mich App 619, 629; 713 NW2d 787 (2006). Duty can
arise from a statute or a contract or by application of the basic rule of common law obligating
one to use due care or to act so as not to unreasonably endanger the person or property of others.
Hill v Sears, Roebuck & Co, 492 Mich 651, 660-661; 822 NW2d 190 (2012). “Factors relevant
to the determination whether a legal duty exists include the relationship of the parties, the
foreseeability of the harm, the burden on the defendant, and the nature of the risk presented.” Id.
at 661 (quotation marks and citation omitted). The issue of foreseeability pertains to both the
foreseeability that the defendant’s conduct would create a risk of harm to another and whether
the result of that conduct and intervening causes was foreseeable. McMillan v State Hwy Comm,
426 Mich 46, 61-62; 393 NW2d 332 (1986). Ordinarily, whether the defendant owes the
plaintiff a duty is a question of law for the court to decide. Moning v Alfono, 400 Mich 425, 436-
437; 254 NW2d 759 (1977). A breach occurs when a defendant’s conduct falls short of the
defendant’s general and specific standard of care. Id. at 437-438. Whether the defendant’s
conduct falls short of the required standard of care is a question of fact. Id. at 438.




                                                -5-
        Regarding causation, Michigan’s Supreme Court has explained: “In order to be a
proximate cause, the negligent conduct must have been a cause of the plaintiff’s injury and the
plaintiff’s injury must have been a natural and probable result of the negligent conduct. These
two prongs are respectively described as ‘cause-in-fact’ and ‘legal causation.’ ” O’Neal v St
John Hosp & Med Ctr, 487 Mich 485, 496; 791 NW2d 853 (2010).

        Evidence of cause in fact is sufficient if the jury may conclude that, more likely than not,
but for the defendant’s conduct the plaintiff’s injuries would not have occurred. Wilson v Alpena
Co Rd Comm, 263 Mich App 141, 150; 687 NW2d 380 (2004). There can be more than one
cause in fact. See Craig v Oakwood Hosp, 471 Mich 67, 87; 684 NW2d 296 (2004). To
establish that a defendant’s conduct was a cause in fact of a plaintiff’s injuries, the plaintiff must
“set[] forth specific facts that would support a reasonable inference of a logical sequence of
cause and effect.” Id. (quotation marks and citation omitted) A defendant’s negligence must be
found to be a cause in fact of the plaintiff’s injury before it can be found to be a proximate cause
of his injuries. Id. Factual cause is generally a question of fact, but if there is no issue of
material fact, the court may decide the question. Genna v Jackson, 286 Mich App 413, 418; 781
NW2d 124 (2009).

        To establish proximate cause, a plaintiff must show that it was foreseeable that the
defendant’s conduct might create a risk of harm to the victim and that the result of that conduct
and any intervening causes were foreseeable. Moning, 400 Mich at 439. There can be more than
one proximate cause, O’Neal, 487 Mich at 496-497, and a tortfeasor is liable for injuries
exacerbated by a physical condition of the plaintiff, Wilkinson v Lee, 463 Mich 388, 396-397;
617 NW2d 305 (2000). Proximate cause is usually a question of fact for the trier of fact, but if
the facts bearing on proximate cause are undisputed and reasonable minds could not differ, the
issue is one of law for the court. Dawe v Bar-Levav & Assoc (On Remand), 289 Mich App 380,
393; 808 NW2d 240 (2010).

         Here, plaintiff pleaded the elements necessary to establish an ordinary negligence claim. 6
Plaintiff alleged that defendant owed Niehaus “a duty to use reasonable care and to not injure
him.” See Jahnk v Allen, 308 Mich App 472, 475; 865 NW2d 49 (2014) (“[T]he duty owed in a
general negligence claim is that every person who engages in the performance of an undertaking
has an obligation to use due care or to act so as not to unreasonably endanger the person or
property of another.) (Quotation marks and citation omitted). Plaintiff specifically alleged that
defendant negligently exposed Niehaus’s feet to scalding water, failed to inspect and decrease
the water’s temperature, failed to use a thermometer to gauge the water’s temperature, and failed
to train and supervise employees to ensure they did not give scalding hot footbaths. Plaintiff also
alleged that, as a “direct and proximate result” of defendant’s negligence, Niehaus suffered the
serious injuries and damages specified in the complaint. Thus, plaintiff pleaded duty, breach,
causation, and damages as they arose from defendant’s alleged negligent conduct.

       Defendant contends that water in a pedicure basin is an activity, condition, or
instrumentality on the land of a nail salon, and that plaintiff’s claim of ordinary negligence is


6
    Plaintiff does not challenge the trial court’s dismissal of its allegations of gross negligence.


                                                    -6-
merely an attempt to plead in avoidance of the open and obvious danger doctrine that is
applicable to premises liability claims but not to ordinary negligence claims. See Laier, 266
Mich App at 494.

        For support of its position, defendant relies primarily on Valinski and Eason v Coggins
Memorial Christian Methodist Episcopal Church, 210 Mich App 261; 532 NW2d 882 (1995). In
Valinski, Keith Valinski grabbed the handle of a hot skillet of fajitas served to his table at the
defendant restaurant, causing him to suffer burns and blisters to part of his right hand, which a
prior electrical explosion at his place of employment had left numb. Valinski and his wife
brought a negligence claim, which the trial court dismissed under the open and obvious danger
doctrine. Valinski, unpub op at 1. On appeal, the plaintiffs argued that the open and obvious
danger doctrine did not apply because “this case does not involve a condition on the land or a
product.” Id. at 2. As already indicated, this Court disagreed, reasoning as follows:

       Serving food items on a hot skillet could be considered an activity or condition on
       the land. In Klimek v Drzewiecki, 135 Mich App 115, 119; 352 NW2d 361
       (1984), we held that a loose dog is a “condition on the land.” Furthermore, a
       skillet could be considered a form of a product. In Resteiner v Sturm, Ruger &
       Co, Inc, 223 Mich App 374, 380; 566 NW2d 53 (1997) (White, P.J., concurring in
       part and dissenting in part, Griffin and Kolenda, JJ., concurring), we applied the
       open and obvious doctrine to a revolver as a product. See also Glittenberg [v
       Doughboy Recreational Indus, Inc (On Rehearing), 441 Mich 379, 392; 491
       NW2d 208 (1992)] (products liability case). In Eason v Coggins Memorial
       Christian Methodist Episcopal Church, 210 Mich App 261, 264; 532 NW2d 882
       (1995), we applied the open and obvious doctrine to a ladder as an instrumentality
       in a premises liability case. Because a hot skillet can constitute an activity,
       condition on land, or a product to which we have applied the open and obvious
       doctrine, the skillet in this case is within the scope of the doctrine. [Id. at 2-3.]



Accordingly, the Court affirmed that the skillet fell under the scope of the open and obvious
doctrine. Id. at 3. Defendant admits that Valinski is unpublished and, therefore, while it could be
instructive or persuasive, it is not binding. MCR 7.215(C)(1); Paris Meadows, LLC v City of
Kentwood, 287 Mich App 136, 145 n 3; 783 NW2d 133 (2010). Nevertheless, defendant claims
that the published cases upon which Valinski relies support the trial court’s determination that the
pedicure footbath in the instant case is an activity or condition on the land.

        Defendant points specifically to Eason, which involved a plaintiff who suffered fatal
injuries after falling from a ladder and scaffolding that the defendant’s agents set up to facilitate
repair and maintenance of defendant’s building. Eason, 210 Mich App at 262. The plaintiff
specifically argued that the ladder was missing a safety latch or that the latch was
malfunctioning. Id at 263, 265. The trial court granted the defendant’s motion for summary
disposition under MCR 2.116(C)(8) pursuant to the open and obvious doctrine. Id. at 263. This
Court analyzed the case as a premises liability claim, as that was the plaintiff’s theory, and held
that the care owed by a premises owner “extends to the instrumentalities on the premises that the
invitee uses at the invitation of the premises owner.” Id. at 264. Ultimately, this Court reversed

                                                -7-
the trial court’s grant of summary disposition to defendant due to remaining questions of fact.
Id. at 266.

         In our view, the instant case is distinguishable from both Valinski and Eason. The
sizzling fajitas menu item in Valinski was primarily a good (or, as the Valinski Court observed, a
type of product), presumably prepared and served each time to achieve the “sizzling” effect by
means of a hot skillet; without a sizzling skillet, one did not have sizzling fajitas. By contrast,
the pedicure in this case was primarily a personal service. Although technicians used water to
provide the service, monitoring and adjusting the temperature of the water in the footbath was
part of the service, and it is this component of the service that plaintiff alleges Tran negligently
performed. In addition, unlike skillets that must be sizzling if one is properly to serve sizzling
fajitas, the temperature of the water in the pedicure basin varies according to each customer’s
preference, and is never meant to be scalding hot. Properly adjusting the temperature of the
water is part of the service that each technician provides, and it is this aspect of the pedicure
service that plaintiff alleges defendant negligently performed.

        The instant case is also distinguishable from Eason. Unlike the plaintiff’s allegation of a
defective ladder in Eason, the instant plaintiff does not allege that the water delivery system was
defective; rather, it was the service of the technician in preparing the water for use that plaintiff
alleges was defective. Thus, the service aspect of a pedicure distinguishes it from an activity,
condition, or instrumentality on the land.7

        To support her position that this case sounds in ordinary negligence, plaintiff relies on the
dissent’s reasoning in Kwiatkowski v Coachlight Estates of Blissfield, Inc, unpublished opinion
per curiam of the Court of Appeals, issued July 3, 2007 (Docket No. 272106). Kwiatkowski was
a 2 to 1 decision that, in lieu of granting leave to appeal, the Supreme Court reversed for the
reasons stated in the dissent. Kwiatkowski v Coachlight Estates of Blissfield, Inc, 480 Mich
1062; 743 NW2d 917 (2008).

       The plaintiff in Kwiatkowski sued after the manager of the mobile home parked owned by
the defendant opened a screen door into him, causing him to fall off a narrow porch and suffer
injury. Kwiatkowski, unpub op at 1. Plaintiff filed a claim based on premises liability and
breach of statutory duties. Id. The trial court granted the defendant’s summary disposition
motion, but allowed the plaintiff to amend the complaint to allege general negligence, and then
denied the defendant’s summary disposition motion on the amended complaint. Id. This Court
reversed the trial court, concluding that the plaintiff had failed to make out a prima facie case of
negligence. The Court reasoned that plaintiff had failed to show that merely opening a screen
door gave rise to a common-law duty of care, that the harm plaintiff suffered was foreseeable,


7
  For example, no one would argue that a waiter’s negligent spilling of hot coffee in a patron’s
lap is a premises liability claim; rather, it is clear that such conduct sounds only in ordinary
negligence. See Laier, 266 Mich App at 493 (“In a premises liability claim, liability emanates
merely from the defendant’s duty as an owner, possessor, or occupier of land. However, that
does not preclude a separate claim grounded on an independent theory of liability based on the
defendant’s conduct . . . .”).


                                                -8-
and that there was an appreciable degree of certainty that the defendant’s conduct would produce
injury; it further concluded that the connection between the defendant’s conduct and the
plaintiff’s injuries was too tenuous. Id. at 2-3. The Court also reasoned that, even if opening the
screen door gave rise to a common-law duty, no evidence indicated that the defendant had failed
to use due care in opening the door. Id. at 3. The Court called into question the plaintiff’s
classification of his claim as negligence rather than premises liability, opining:

       . . . plaintiff was not injured by the door hitting his face and chest. Rather,
       plaintiff was injured by his fall once he lost his balance on the small porch and
       when his foot caught under the door. The small porch and the slight gap between
       the porch and the door are conditions of the land. Thus, plaintiff’s claim arguably
       sounds in premises liability, not general negligence. [Id.]

         The dissent agreed with the trial court that, under common law, the defendant owed a
duty not to slam a door into someone. Kwiatkowski, unpub dissent at 1. Because the door was
not opaque and the manager could have looked through it before opening it suddenly, but did
not, the record was sufficient to establish a genuine issue of material fact regarding whether the
manager’s conduct breached this duty. Id. at 2. The dissent noted, “the inability to foresee the
precise manner in which plaintiff’s injury occurred is not fatal to plaintiff’s ordinary negligence
claim.” Id. at 2, citing Hiner v Mojica, 271 Mich App 604, 615; 722 NW2d 914 (2006), lv den
477 Mich 1124 (2007). The dissent further noted, “[a] plaintiff need not establish that the
mechanism of injury was foreseeable or anticipate in specific detail. It is only necessary that the
evidence establishes that some injury to the plaintiff was foreseeable or to be anticipated.”
Kwiatkowski, unpub dissent, p 2, quoting Schultz v Consumer Power Co, 443 Mich 455, 452-453
n 7; 506 NW2d 175 (1993). Finally, the dissent opined that the case did not sound in premises
liability because the plaintiff based his claim on the defendant’s alleged conduct in opening the
door, not on the defendant’s failure to protect him from some dangerous condition on the land.
Kwiatkowski, unpub dissent, p 2. In lieu of granting leave to appeal, Michigan’s Supreme Court
reversed the judgment of this Court and reinstated the judgment of the trial court denying
dismissal of the plaintiff’s negligence claim for the reasons stated in the dissent. Kwiatkowski,
480 Mich at 1062.

        We conclude that the instant case more closely resembles Kwiatkowski than Valinski.
Plaintiff based her allegations in Count I on defendant’s alleged conduct in drawing the pedicure
footbath, not in a faulty water heater, pedicure basin, or pedicure chair, or in a water heater set at
a temperature that was too high. In Kwiatkowski, while there were conditions on the land that
may have been relevant to the plaintiff’s injury, the plaintiff alleged that his injuries arose from
the manager’s negligent opening of the door. Likewise, here, even if the water heater delivered
scalding hot water that could be mixed with the cold water, plaintiff alleges that Niehaus’s burns
arose from Tran’s failure to create a safe temperature mix and to check the water before
instructing Niehaus to put his feet in the scalding hot water. Based on the foregoing, we
conclude that Tran’s allegedly negligent act of filling the footbath with scalding water is not a
condition, instrumentality, or activity on the land, and that plaintiff’s claim sounds in ordinary
negligence.

       Defendant asserts that even if plaintiff’s claim sounds in ordinary negligence, plaintiff
cannot establish causation because the sole cause in fact of Niehaus’s injuries was his

                                                 -9-
undisclosed diabetic neuropathy, and because his injuries were not foreseeable, given that the
average person would have immediately removed his or her feet from water in excess of 120
degrees. Defendant further asserts that Tran fulfilled defendant’s duty of reasonable care by
asking Niehaus if the water temperature was acceptable and that she could not reasonably have
foreseen or anticipated that he would fail to disclose that, because of his medical condition, he
could not detect the water’s temperature. Niehaus had a duty to exercise reasonable care for his
own safety and protection. Laier, 266 Mich App at 496. Given this duty, defendant argues, it
“should not be legally charged with foreseeing both that the decedent had no feeling in his feet
and that he would not protect himself from the possibility that the water might be too hot.”

        Defendant’s analysis overlooks that there may be more than one cause in fact, see Craig,
471 Mich at 87, and more than one proximate cause, O’Neal, 487 Mich at 496-497. Whether
defendant’s alleged actions and omissions were a cause in fact of Niehaus’s injuries is a question
of fact. Plaintiff alleged that Tran turned the water on to begin filling the basin, checked the
water until it turned from cold to warm, and then finished filling the basin and exposed
Niehaus’s feet to the scalding hot water without first checking the temperature of the filled basin.
Niehaus’s medical records indicate that he had second-degree burns as well as a third-degree
burn on his feet, and plaintiff’s scalding expert testified that Niehaus’s burns were consistent
with a footbath of at least 120 degrees. Viewed in the light most favorable to plaintiff, these
allegations could “support a reasonable inference of a logical sequence of cause and effect.”
Craig, 471 Mich at 87 (quotation marks and citation omitted).

        Defendant also errs in its proximate cause analysis by assuming that the principle that a
tortfeasor is liable for injuries made worse by a physical condition of the plaintiff does not apply
to causation. In Wilkinson, 463 Mich 388 (2000), our Supreme Court relied upon this principle
to reverse this Court’s prior ruling in Wilkinson v Lee, unpublished opinion per curiam of the
Court of Appeals, issued June 15, 1999 (Docket No. 203218). The relevant issue in Wilkinson
was whether an automobile accident that the defendants admitted causing was the proximate
(factual and legal) cause of the plaintiff-husband’s injuries. Wilkinson, unpub op at 1. Shortly
after the accident, the plaintiff-husband began experiencing changes in his physical and mental
condition that doctors eventually determined were symptoms of a meningioma brain tumor. The
plaintiff’s physician testified that it was “ ‘quite likely’ ” that the plaintiff had the tumor at the
time of the automobile accident, and that the head trauma from the accident “could have
precipitated or accelerated the symptoms of the tumor” that the plaintiff was experiencing. Id. at
2. The defendants’ medical expert testified “that there was no medical evidence to support the
theory that trauma from an accident could cause the growth or acceleration of a tumor.” Id. The
case went to the jury, which returned a verdict for the plaintiffs. Subsequently, the defendants
moved unsuccessfully for a directed verdict or a judgment notwithstanding the verdict (JNOV).
Id.

        On appeal, the defendants argued that the trial court erred in denying their motion for a
directed verdict or a JNOV. In a 2 to 1 decision, this Court concluded that the plaintiff’s claim
could “survive neither the test of cause in fact nor the test of legal cause[,]” and, thus, agreed
with the defendants that the trial court erred in denying their motion. Id. at 4. The Court
determined that, although the accident may have precipitated the symptoms of the tumor, it did
not cause the tumor and, therefore, it could not be said that, but for the accident, the plaintiff
would not have had the brain tumor. Id. at 5. The Court further determined that, “even when

                                                -10-
construing all the evidence in a light most favorably to plaintiffs,” the defendants could not
reasonably have foreseen that the accident at issue “would precipitate or trigger [the plaintiff’s]
symptoms, the basic cause of which was the as yet undiagnosed brain tumor.” Id. The Court
concluded, “there was no showing that the nexus that may have existed between the 1992
accident and [the plaintiff’s] symptoms was of such a nature that it is socially and economically
desirable to hold defendants liable.” Id. Therefore, this Court reversed the trial court’s judgment
and remanded the matter for entry of a JNOV in favor of defendants.

       In reversing this Court’s judgment, the Supreme Court quoted with approval the dissent’s
observation that,

       [P]laintiff is a classic example of the victim with the egg-shell skull and the axiom
       that one must take a plaintiff as one finds him. Shall we decline to impose
       negligence on one who knocks down and breaks the bones of a little old lady who
       suffers from osteoporosis simply because the inattentive or careless oaf didn’t
       cause her underlying condition? Of course not. [Wilkinson, 463 Mich at 393.]

The Wilkinson Court further explained, “[r]egardless of the preexisting condition, recovery is
allowed if the trauma caused by the accident triggered symptoms from that condition[,]” and
determined that the medical evidence presented at trial would have allowed a jury to find that the
automobile accident caused by the defendant’s negligence was a cause in fact of the plaintiff’s
injuries. Id. at 395. Regarding legal cause, the Wilkinson Court observed:

       Established principles require that the defendants take the plaintiff as he was, with
       his susceptibility to injury resulting from his brain tumor. 2 Restatement, 2d,
       Torts, § 461, p. 502, contains a classic statement of that principle:

                       The negligent actor is subject to liability for harm to
               another although a physical condition of the other which is neither
               known nor should be known to the actor makes the injury greater
               than that which the actor as a reasonable man should have foreseen
               as a probable result of his conduct.

       As the comment to § 461 states:

                        The rule stated in this Section applies not only where the
               peculiar physical condition which makes the other’s injuries
               greater than the actor expected is not known to him, but also where
               the actor could not have discovered it by the exercise of reasonable
               care, or, indeed even where it is unknown to the person suffering it
               or to anyone else until after the harm is sustained. A negligent
               actor must bear the risk that his liability will be increased by
               reason of the actual physical condition of the other toward whom
               his act is negligent.

                                             * * *



                                               -11-
               This case is a clear one for the application of that principle. The plaintiff’s
       preexisting brain tumor made him more vulnerable to adverse consequences from
       head trauma than the average person. However, it was certainly foreseeable that a
       result of the driver’s negligence in causing an auto accident could be physical
       injury, including head trauma, to an occupant of the other vehicle. The fact that
       this particular plaintiff was unusually vulnerable to head injuries does not relieve
       the defendants of responsibility for those damages. [Wilkinson, 463 Mich at 396-
       397 (citations omitted).]

       In light of Wilkinson, it is certainly foreseeable that drawing a footbath filled with
scalding water8 and instructing a customer to put his feet in it creates a risk of physical harm to
the customer. Plaintiff’s diabetic neuropathy made him more vulnerable to serious burns from
scalding water than the average person. Defendant is subject to liability for plaintiff’s second-
and third-degree burns, even though defendant did not know about plaintiff’s vulnerable
condition and even though the burns were more serious than defendant should have foreseen as a
probable result of its conduct of having a customer place his feet in scalding water. Id. at 396-
397.

         Viewing the evidence in the light most favorable to plaintiff, Quinto, 451 Mich at 362,
we conclude that plaintiff has stated a valid claim for ordinary negligence. Plaintiff alleged that
defendant had a duty to exercise reasonable care in providing pedicure services to Niehaus.
Conflicting deposition testimony about the temperature of the water creates a genuine issue of
material fact with regard to whether defendant breached its duty. If defendant did breach its
duty, a trier of fact could find that such breach was an actual and legal cause of Niehaus’s burns,
i.e., a type of harm logically related to, and foreseeable in light of, defendant’s negligence. If a
jury finds defendant negligent, it can then consider whether Niehaus was comparatively
negligent for allegedly failing to inform defendant of his diabetic neuropathy. MCL 600.2959.

                       C. OPEN AND OBVIOUS DANGER DOCTRINE

         Plaintiff next contends that the trial court erred in dismissing her premises liability claim
because scalding water in a pedicure basin is not a danger that an average user would find open
and obvious upon casual inspection. We affirm the trial court’s dismissal of plaintiff’s premises
liability claim (Count II), but on grounds other than application of the open and obvious danger
doctrine. See Messenger v Ingham Co Prosecutor, 232 Mich App 633, 643; 591 NW2d 393
(1998). (“When this Court concludes that a trial court has reached the correct result, this Court
will affirm even if it does so under alternative reasoning.”).

       As indicated above, “Michigan law distinguishes between claims arising from ordinary
negligence and claims premised on a condition of the land.” Jahnke, 308 Mich App at 474


8
  Water is considered scalding when it is at 120 degrees Fahrenheit or higher.
www.accuratebuilding.com/services/legal/charts/hot_water_burn_scalding_graph.html.




                                                -12-
(quotation marks and citation omitted). A premises liability claim arises from a condition on the
land, whereas a claim of ordinary negligence arises from a defendant’s conduct. See James, 464
Mich at 18-19. In both cases, the plaintiff must prove (1) a duty owed by the defendant to the
plaintiff, (2) breach of that duty, (3) causation, and (4) damages. See Buhalis v Trinity
Continuing Care Servs, 296 Mich App 685, 693; 822 NW2d 254 (2012). In a premises liability
case, the measure of the land possessor’s duty depends on the status of the plaintiff as trespasser,
licensee, or invitee. Sanders v Perfecting Church, 303 Mich App 1, 4; 840 NW2d 401 (2013).
In the instant case, there is no dispute that Niehaus, as a customer of defendant’s nail salon, was
a business invitee. “A business invitee, is one who enters a premises to conduct business that
concerns the premises owner at the owner’s express or implied invitation.” Riddle v McLouth
Steel Products Corp, 440 Mich 85, 91 n 4; 485 NW2d 676 (1992). Where the “plaintiff is a
business invitee, the premises owner has a duty to exercise due care to protect the invitee from
dangerous conditions.” Id. at 96.

        With regard to defendant’s liability as a premises owner, plaintiff alleges that defendant
failed to monitor the temperature of the water heater’s setting and of the water in the footbath, to
establish procedures for monitoring the water temperature, and to alert Niehaus of the
unreasonable risks of harm due to scalding footbaths defendant knew or should have known
about. However, plaintiff has failed to allege—let alone demonstrate—that the water heater was
set at an inappropriately high temperature, that it was defective in any way, or that there was a
defect in the pedicure chair or footbath that resulted in the delivery of water that was too hot for
a customer’s skin into the footbath basin. 9 In other words, plaintiff merely speculates that the
water delivery system constituted a dangerous condition on the premises for which defendant
should be held liable because it knew or should have known about the condition and failed to fix
it, guard against it, or warn Niehaus about it. Hoffner v Lanctoe, 492 Mich 450, 460; 821 NW2d
878 (2012). Ballanco suggested in his deposition that defendant’s alleged failure to install anti-
scalding devices violated Michigan’s Plumbing Code, but his testimony did not establish that
such devices were required for nail salons or their pedicure footbaths. Ballanco opined that
pedicure footbaths fell into the same category of bathtubs, for which the Code did require
“water-temperature limiting devices,” but admitted that such categorization was a matter of
interpretation.

       The gravamen of plaintiff’s complaint revolves around the alleged negligent conduct of
Tran and the implication that, had Tran acted with due care, even if scalding water had been


9
  See Viramontez v Southwest Counseling Solutions, unpublished opinion per curiam of the Court
of Appeals, issued September 15, 2015 (Docket Nos. 320380, 320602). In Viramontez, the
plaintiff suffered burns from hot water while taking a shower and argued that the defendant was
liable under theories of statutory negligence and premises liability. This Court affirmed the trial
court’s summary dismissal of the plaintiff’s premises liability claim in part because the plaintiff
failed to demonstrate a defect in the water system due to unsafe temperature. Although
unpublished opinions are not binding precedent, this Court may consider them as instructive or
persuasive. Paris Meadows, LLC v City of Kentwood, 287 Mich App 136, 145 n 3; 783 NW2d
133 (2010).


                                               -13-
delivered to Niehaus’s pedicure basin, she would have checked the water and adjusted its
temperature before instructing Niehaus to put his feet in it. Jahnke, 308 Mich App at 474
(“[T]he gravamen of an action is determined by reading the complaint as a whole, and by
looking beyond the mere procedural labels to determine the exact nature of the claim.”)
(Quotation marks and citation omitted). The trial court dismissed plaintiff’s claim because it
considered the water in the pedicure basin analogous to the hot skillet in Valinski, making no
mention of any alleged deficiencies in the water delivery system. Moreover, at the hearing on
defendant’s motion for summary disposition, defendant observed that plaintiff set forth the same
allegations in its negligence claim as in its premises liability claim, and concluded therefrom that
this case sounded in premises liability because none of the negligence claims arose
independently from a condition on the land, i.e., hot water. Although agreeing with defendant’s
observation about the similarity between the allegations in the two counts of plaintiff’s
complaint, we draw the opposite conclusion, i.e., that plaintiff has stated a claim of ordinary
negligence, but not a claim of premises liability. Although a party can bring claims for both
premises liability and ordinary negligence if the facts support each claim, Laier, 266 Mich App
at 493, under the facts alleged in this case, the pouring of scalding water into a footbath basin
during a pedicure did not implicate defendant’s duty as an owner, possessor, or occupier of land.
Thus, because plaintiff has failed to state a claim for premises liability, we affirm the trial court’s
grant of summary disposition to defendant on Count II of plaintiff’s complaint.

                                        III. CONCLUSION

         We conclude that, viewing the evidence in the light most favorable to plaintiff, Quinto,
451 Mich at 362, plaintiff has stated a valid claim of ordinary negligence, but failed to state a
claim for premises liability. Therefore, we affirm the trial court’s order as to plaintiff’s premises
liability claim, reverse the trial court’s order granting summary disposition to defendant as to
plaintiff’s ordinary negligence claim, and remand the matter for further proceedings consistent
with this opinion.

       Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction.



                                                               /s/ David H. Sawyer
                                                               /s/ Joel P. Hoekstra
                                                               /s/ Jane M. Beckering




                                                 -14-
