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STATE OF MICHIGAN
COURT OF APPEALS


DENISE GRZESIAK and RONALD GRZESIAK, Plaintiffs-Appellants, v FIRST BROADCASTING INVESTMENT PARTNERS, LLC, and BIG D BROADCASTING, LLC, Defendants-Appellees.

UNPUBLISHED May 29, 2008

No. 277996 Washtenaw Circuit Court LC No. 06-000745-NO

Before: Davis, P.J., and Murray and Beckering, JJ. PER CURIAM. Plaintiffs1 appeal as of right from the trial court's order granting defendants' motion for summary disposition in their negligence and premises liability action on the ground that the allegedly dangerous condition was open and obvious. We affirm. This appeal has been decided without oral argument pursuant to MCR 7.214(E). Plaintiff went to defendants' radio station to pick up movie tickets that her husband had won in a contest. While approaching the front entrance of the building, plaintiff slipped on a "slippery substance" on the sidewalk and fell forward, lacerating her chin and injuring three teeth. Plaintiff had noticed whole, half, and smashed apples, which had fallen from a nearby tree, onto the sidewalk, and she had stepped around some whole apples before falling. Plaintiff testified that, although she could not recall whether she was looking down and she did not see what caused her fall, she assumed it was a rotten apple. Referring to photos that she took the day after the incident, plaintiff identified the area of her fall based on the presence of a bloodstain on the grass and residue on the sidewalk, which were visible in the pictures. Defendants' business manager testified that the sidewalk was "cluttered" with whole, half, and smashed apples at the time of plaintiff's fall; she further testified that on "maybe one" prior occasion, a delivery person had complained about apples on the sidewalk, but that the station did not employ a service to maintain the sidewalk.

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Because Ronald Grzesiak's claims are derivative, the singular term "plaintiff" refers herein to Denise Grzesiak only.

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The trial court granted defendants' motion for summary disposition, holding that the apples on the sidewalk presented an open and obvious danger. The court declined to address defendants' additional arguments that causation and notice were not established. This Court reviews de novo the grant or denial of a motion for summary disposition. Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004); Tipton v William Beaumont Hosp, 266 Mich App 27, 32; 697 NW2d 552 (2005). A motion under MCR 2.116(C)(10)2 tests the factual support of a plaintiff's claim. Lind v Battle Creek, 470 Mich 230, 238; 681 NW2d 334 (2004). The trial court may grant summary disposition under MCR 2.116(C)(10) if, considering the substantively admissible evidence in a light most favorable to the nonmoving party, there is no genuine issue concerning any material fact and the moving party is entitled to judgment as a matter of law. Lind, supra at 238; Maiden v Rozwood, 461 Mich 109, 119-121; 597 NW2d 817 (1999). To establish a prima facie case of negligence, a plaintiff must prove (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages. Henry v Dow Chemical Co, 473 Mich 63, 72; 701 NW2d 684 (2005); Fultz v Union-Commerce Ass'n, 470 Mich 460, 463; 683 NW2d 587 (2004). Whether a defendant breached a duty of care toward a plaintiff is a question of fact for the jury, but summary disposition is appropriate if the moving party can show either that an essential element of the plaintiff's claim is lacking or that the evidence is insufficient to establish an element of the claim. Latham v Nat'l Car Rental Systems, Inc, 239 Mich App 330, 340; 608 NW2d 66 (2000). "The threshold question in a negligence action is whether the defendant owed a duty to the plaintiff. `It is axiomatic that there can be no tort liability unless defendants owed a duty to plaintiff.'" Fultz, supra at 463, quoting Beaty v Hertzberg & Golden, PC, 456 Mich 247, 262; 571 NW2d 716 (1997). A landowner generally has a duty to exercise reasonable care to protect an invitee from unreasonable risks of harm caused by dangerous conditions on the land. Lugo v Ameritech Corp, 464 Mich 512, 516; 629 NW2d 384 (2001). However, landowners "are not absolute insurers of the safety of their invitees." Bertrand v Alan Ford, Inc, 449 Mich 606, 614; 537 NW2d 185 (1995). Thus, premises possessors are not required to protect invitees from "open and obvious dangers" unless "special aspects" exist that render an open and obvious danger effectively unavoidable or give rise to a uniquely high likelihood of harm, rendering the condition unreasonably dangerous. Lugo, supra at 516-519. A danger is open and obvious if "`an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection.'" Corey v Davenport College of Business (On Remand), 251 Mich App 1, 5; 649 NW2d 392 (2002), quoting Novotney v Burger King Corp (On Remand), 198 Mich App 470, 475; 499 NW2d 379

Although defendants sought summary disposition under both MCR 2.116(C)(8) and (C)(10), the trial court did not indicate on which subsection it was relying in granting the motion. Because documentary evidence was submitted and relied upon by the trial court, we assume that the motion was granted under (C)(10). See Mino v Clio School Dist, 255 Mich App 60, 63; 661 NW2d 586 (2003); Kefgen v Davidson, 241 Mich App 611, 616; 617 NW2d 351 (2000).

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(1993). This test is objective; the question, therefore, is "`whether a reasonable person in [the plaintiff's] position would foresee the danger.'" Corey, supra at 5, quoting Hughes v PMG Bldg, Inc, 227 Mich App 1, 11; 574 NW2d 691 (1997); see also Mann v Shusteric Enterprises, Inc, 470 Mich 320, 329-330; 683 NW2d 573 (2004); Joyce v Rubin, 249 Mich App 231, 238-239; 642 NW2d 360 (2002). "[I]t is important for courts in deciding summary disposition motions by premises possessors in `open and obvious' cases to focus on the objective nature of the condition of the premises at issue, not on the subjective degree of care used by the plaintiff." Lugo, supra at 523-524. The trial court properly granted summary disposition to defendants on the basis of the open and obvious doctrine. The testimony establishes that the sidewalk was virtually covered with apples in all conditions

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