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STATE OF MICHIGAN COURT OF APPEALS

CHARLENE KLASNER, Plaintiff-Appellant, V HARMAN & TYNER INC., Defendant-Appellee.

UNPUBLISHED November 17, 2011

No. 300425 Oakland Circuit Court LC No. 2009-105766-NI

Before: SERVITTO, P.J., and CAVANAGH and STEVENS, JJ. PER CURIAM. Plaintiff appeals as of right the trial court order granting summary disposition in defendant's favor in this premises liability matter. Because the condition causing plaintiff's fall was open and obvious and subject to no exceptions, and because defendant breached no statutory duty owed plaintiff, we affirm. Plaintiff resides in an apartment building owned and operated by defendant. On January 18, 2009, while descending a stairway and stepping into the tiled foyer of the apartment building, plaintiff slipped and fell, incurring injuries. According to plaintiff, her slip and fall was the direct result of defendant's negligence in, among other things, allowing water, slush, ice and snow to accumulate on the tile and failing to remove or warn of the hazard. Plaintiff also alleged that defendant breached its statutory obligations as a lessor and is thus liable for her injuries on that basis as well. Defendant moved for summary disposition contending that the condition leading to plaintiff's slip and fall was open and obvious such that defendant had no duty to protect plaintiff from the same, and that it breached no statutory duty owed plaintiff because the foyer was kept in a condition fit for its intended purpose. The trial court agreed, granting summary disposition in defendant's favor. Plaintiff now appeals that decision. Defendant moved for summary disposition pursuant to both MCR 2.116(C)(8) and (10). However, the trial court looked beyond the pleadings in rendering its decision, clearly premising its ruling upon MCR 2.116(C)(10). We review a trial court's decision to grant or deny summary disposition de novo. Veenstra v Washtenaw Country Club, 466 Mich 155, 159; 645 NW2d 643 (2002). Issues concerning the interpretation of a statute are questions of law that we also review de novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). When reviewing a motion under subrule (C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant record evidence in the light most favorable to the -1-

nonmoving party to determine whether any genuine issue of material fact exists warranting a trial. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004). Summary disposition is appropriate under MCR 2.116(C)(10) when the moving party can demonstrate there are no genuine issues of material fact and it is entitled to judgment as a matter of law. Rose v Nat'l Auction Group, Inc., 466 Mich 453, 461; 646 NW2d 455 (2002). We first note that the trial court, in orally rendering its decision, stated, "In looking at the evidence in a light most favorable to the Defendant, the Court . . . ." As pointed out by plaintiff, this would be an incorrect standard of review, as the evidence is to be viewed on a (C)(10) motion in a light most favorable to the non-moving party--here, plaintiff. However, it does not appear that the trial court was actually applying such a standard rather than simply misspeaking, as the trial court also stated, in the very same sentence, that it "grants Plaintiff's motion as to count I, negligence." The summary disposition motion was brought by defendant, not plaintiff, such that the trial court was actually granting defendant's motion and misspoke when it stated that it was granting plaintiff's motion. It would appear, then, the trial court simply transposed the parties in the sentence and misstated in whose favor it was viewing the evidence when reviewing the motion. This is a particularly logical conclusion given that in addressing a different count in plaintiff's complaint, the trial court stated, "In looking at the evidence in a light most favorable to the Plaintiff, the Court concludes . . . ." The trial court was thus aware of the appropriate standard of review and there is no evidence in the record that it applied an inappropriate standard. That issue being resolved, we turn to the remaining arguments raised by plaintiff on appeal. Plaintiff contends that a question of fact exists as to whether the hazardous condition causing her fall and the resulting injuries was open and obvious, thus precluding summary disposition in defendant's favor. We disagree. 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. Kennedy v Great Atlantic & Pacific Tea Co., 274 Mich App 710, 712; 737 NW2d 179 (2007). The duty that a landlord owes a plaintiff depends on the plaintiff's status on the land. Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 596; 614 NW2d 88 (2000). A person invited on the land for the owner's commercial purposes or pecuniary gain is an invitee, and a tenant is an invitee of the landlord. Stanley v Town Square Coop, 203 Mich App 143, 149; 512 NW2d 51 (1993). An owner "owes a duty to an invitee 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). This duty generally does not, however, require the owner to protect an invitee from open and obvious dangers. Id. at 517. An open and obvious danger is one that an average user with ordinary intelligence would have been able to discover upon casual inspection. Joyce v Rubin, 249 Mich App 231, 238; 642 NW2d 360 (2002). This is an objective test, and the court considers whether a reasonable person in the plaintiff's position would have foreseen the danger. Id. at 238

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