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STATE OF MICHIGAN COURT OF APPEALS

DEBORAH BECKER, Plaintiff-Appellant, v PATRICIA GLAISTER, TROY BRAMAN, and BRAMAN CONSTRUCTION, INC., Defendants-Appellees.

UNPUBLISHED January 22, 2009

No. 281481 Clinton Circuit Court LC No. 06-010053-NO

Before: Murray, P.J., and O'Connell and Davis, JJ. PER CURIAM. Plaintiff appeals as of right the October 12, 2007, order granting summary disposition to defendant Patricia Glaister and the October 15, 2007, order granting summary disposition to defendants Troy Braman and Braman Construction, Inc. We affirm. This case arises out of injuries plaintiff sustained when she slipped and fell while visiting plaintiff's house, which was under construction and for which Troy Braman's company, Braman Construction, was the general contractor. Plaintiff, a medical receptionist, testified that Glaister, who had hired plaintiff as a decorating consultant, called plaintiff on April 5, 2004, requesting plaintiff to deliver carpet samples to the house. When plaintiff arrived at the house around 5:30 p.m., it was still daylight. Upon her arrival, plaintiff noticed that the front door was nailed shut and that standing water and construction debris blocked the entrance to the walkout basement. Thus, plaintiff elected to enter the house by walking up a ramp, approximately one foot in width, leading to the laundry room. Plaintiff dropped off the samples and while walking down the ramp, fell and injured her rotator cuffs and knees. Plaintiff testified that she decided to use the ramp, which was covered with dry dirt and did not have a railing,1 despite her misgivings because Glaister was "very adamant" that the samples be delivered that night. Glaister, who was not present because she was attending class at a nearby community college, denied that she asked plaintiff to deliver carpet samples that night or that she paid plaintiff, who was her friend.

Although Troy Braman testified that a support beam for a sump pump line and a stud wall near the ramp could be used for support, he admitted that no handrail was constructed because the ramp was designed only for use by construction workers.

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On appeal, plaintiff first argues that there is a genuine issue of material fact concerning whether special aspects of the ramp rendered the risk of harm unreasonably dangerous and unavoidable thereby precluding application of the open and obvious doctrine. We disagree. This Court reviews de novo an appeal from an order granting a motion for summary disposition brought pursuant to MCR 2.116(C)(10). Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). A motion for summary disposition pursuant to MCR 2.116(C)(10) should be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). A genuine issue of material fact exists when reasonable minds could differ after drawing reasonable inferences from the record. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). In reviewing this issue, the Court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence and construe them in the light most favorable to the nonmoving party. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). To establish premises liability, a plaintiff must prove the following: "(1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty; (3) causation; and (4) damages." Hampton v Waste Mgt of Michigan, Inc, 236 Mich App 598, 602; 601 NW2d 172 (1999). Where a condition on the land is open and obvious, a premises possessor owes no duty to an invitee2 unless special aspects exist making the condition unreasonably dangerous. Bertrand v Alan Ford, Inc, 449 Mich 606, 614-617; 537 NW2d 185 (1995). Two types of open and obvious conditions may render a condition unreasonably dangerous: unavoidable conditions and those creating a severe risk of harm. Lugo v Ameritech Corp, 464 Mich 512, 518-519; 629 NW2d 384 (2001). Lugo provides two examples illustrating these conditions. First, a commercial building with its only exit for the general public covered in standing water would be an unavoidable condition because a customer wishing to leave the store must depart through the standing water. Id. Second, a 30-foot deep hole in a parking lot would create a severe risk of harm because although one could avoid the condition, it would present a uniquely high likelihood of severe injury or even death absent remedial measures. Id. At the outset, we note that plaintiff does not challenge whether the conditions causing her fall were open and obvious. Rather, plaintiff asserts the ramp was unreasonably dangerous because the ramp was too narrow, was slippery due to the presence of dry dirt, and was unsafe because it lacked handrails. However, even viewing the facts in the light most favorable to plaintiff, none of these conditions was unreasonably dangerous. On the contrary, these conditions are similar to other types of conditions that, while potentially causing one to slip and fall, are not unreasonably dangerous. For example, this Court has found that an icy stairway

We note that Glaister maintains that even if there were a commercial relationship, plaintiff's status at the time of her fall was one of licensee because any commercial relationship extended only to plaintiff's assistance at the home furnishing store. However, no evidence in the record supports this assertion. Thus, given plaintiff's and Glaister's contrary assertions regarding whether any commercial relationship existed, a genuine issue of fact exists on this point. Regardless, assuming without deciding that plaintiff is an invitee as she claims, her claim still fails.

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elevated only a couple of feet did not create the severe risk of harm envisioned by Lugo because "`[u]nlike falling an extended distance, it cannot be expected that a typical person [falling a distance of several feet] would suffer severe injury' or a substantial risk of death." Corey v Davenport College of Business (On Remand), 251 Mich App 1, 6-7; 649 NW2d 392 (2002), quoting Lugo, supra at 518, 520. Here, plaintiff testified she fell approximately four feet. The ramp was nearly one foot in width with dry dirt on the surface. These conditions are akin to the icy stairs of Corey rather than the 30-feet deep pit of Lugo. Moreover, while the ramp contained no handrails, the absence of a handrail on a construction ramp, which was at most four feet high, is hardly a unique condition of unreasonable risk. Lugo, supra at 519. We note that while plaintiff injured her rotator cuffs and knees as a consequence of the fall, the risk posed by the conditions must be considered a priori, i.e., without examining a plaintiff's injuries in hindsight. Id. at 518-519 n 2. Thus, plaintiff's injuries are not relevant to our conclusion. Consequently, plaintiff has failed to demonstrate that the ramp contained special aspects creating an unreasonable risk of harm. Plaintiff relies upon her expert's conclusion that the ramp contained special aspects that were unreasonably dangerous and that the conditions causing plaintiff's fall violated the Michigan Occupational Safety and Health Act (MIOSHA), MCL 408.1001 et seq. This reliance, however, is unavailing. First, despite the expert's repeated conclusions that the conditions constituted special aspects rendering the ramp unreasonably dangerous, whether special aspects exist is a legal conclusion, and "[t]he opinion of an expert does not extend to legal conclusions." Maiden, supra at 130 n 11. Only after a condition is deemed a special aspect may the factual determination of whether the aspect was unreasonably dangerous be made. O'Donnell v Garasic, 259 Mich App 569, 578; 676 NW2d 213 (2003); Woodbury v Bruckner, 248 Mich App 684, 694; 650 NW2d 343 (2001). Moreover, "if an open and obvious condition lacks some type of special aspect regarding the likelihood or severity of harm that it presents, it is not unreasonably dangerous." Lugo, supra at 525. Consequently, because the conditions at issue are not special aspects as a matter of law, the expert's opinion that they are unreasonably dangerous is irrelevant. Second, plaintiff's reliance on MIOSHA standards is misplaced. While plaintiff is correct that a violation of statute may create a rebuttable presumption of negligence, Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich App 710, 720-721; 737 NW2d 179 (2007), plaintiff did not premise her negligence claim on a violation of statute. Rather, plaintiff alleges MIOSHA violations to support her common law theory of negligence

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