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ESTATE OF DANIEL CUMMINGS V STEVEN OLSEN
State: Michigan
Court: Court of Appeals
Docket No: 301894
Case Date: 06/19/2012
Preview:STATE OF MICHIGAN COURT OF APPEALS
DAVID CUMMINGS, as personal representative of THE ESTATE OF DANIEL CUMMINGS, Plaintiff-Appellant, v STEVEN OLSEN and MARILEE OLSEN, Defendant-Appellees, and THE ENGINEERING DIVISION OF THE PUBLIC WORKS DEPARTMENT and CITY OF LIVONIA, Defendants. Before: WHITBECK, P.J., and JANSEN and K. F. KELLY, JJ. PER CURIAM. In this premises liability action, plaintiff David Cummings, as personal representative of the estate of Daniel Cummings (Cummings), appeals as of right the trial court's order granting defendants Steven and Marilee Olsen's motion for summary disposition pursuant to MCR 2.116(C)(10). On appeal, David Cummings asserts that the trial court erred by finding that the Olsens owed no duty to Cummings and that the area where Cummings was injured was not open and obvious. We disagree and affirm the trial court's decision. I. FACTS On August 8, 2009, at approximately 11:00 p.m., Cummings left his friend's house to go home after a birthday party. Cummings was riding his bicycle on the sidewalk on the west side of Chicago Street in Livonia. While riding his bicycle, Cummings did not notice that the sidewalk jutted out to the right to curve around a boulder that was located in the grass outside the Olsens' home. Instead of following the curve in the sidewalk, Cummings continued straight, hit the boulder, and was thrown off his bicycle. Cummings landed on the grass and struck his head on the ground. Cummings claimed that the sidewalk was poorly lit and that he did not see the boulder or have time to react to the curve in the sidewalk. Cummings stated that he was unconscious for a period of time before being able to call for help. Cummings was then taken to the hospital where he was diagnosed with having a -1No. 301894 Wayne Circuit Court LC No. 10-001244-NO UNPUBLISHED June 19, 2012

broken neck and two blood clots. Cummings underwent surgery and continued medical care for his neck up until his death in May 2010. Cummings passed away from events unrelated to this litigation. David Cummings then brought action against the City of Livonia, The Engineering Division of the Department of Public Works, and the Olsens. David Cummings alleged that the City of Livonia, the Engineering Division of the Department of Public Works, and the Olsens failed to design the sidewalk in a reasonable and safe manner, failed to avoid putting a large boulder in an unreasonable location, and failed to avoid placing the boulder in a condition that was unreasonable for the safety of the public. The City of Livonia and the City of Livonia Engineering Division of the Department of Public Works moved for summary disposition and for sanctions pursuant to MCR 2.116(C)(7) and (C)(8), arguing that they were entitled to governmental immunity. The trial court granted the motion. Therefore, the City of Livonia and the City of Livonia Engineering Division of the Department of Public Works are not parties to this appeal. The Olsens also moved for summary disposition, claiming that they had no duty to maintain a public sidewalk, they were not responsible for designing and/or constructing the sidewalk, nor were they responsible for the lighting of the street or the sidewalk. The Olsens also contended that they owed no duty to Cummings because the condition of the sidewalk was open and obvious. David Cummings responded, arguing that the Olsens had a common law duty to protect pedestrians from an unreasonably dangerous condition on their property that is in an area that is frequently walked. David Cummings argued that the Olsens also had a duty to remove the boulder or warn against it. According to David Cummings, this boulder was not open and obvious because (1) the condition was not open and obvious under the current Michigan law, and (2) it was an unreasonably dangerous condition that would fall into the exception to an open and obvious defense. The trial court granted the defense motion for summary disposition. In so holding, the trial court reasoned that "the only reason that it's not open and obvious is because of those facts [`the plaintiff put himself in a position, in the dark, while drinking, while driving a bike on a sidewalk without lights']. Therefore, should you go to jury on that? My answer is no." David Cummings, as personal representative of the Estate of Daniel Cummings, now appeals. II. MOTION FOR SUMMARY DISPOSITION A. STANDARD OF REVIEW This Court reviews de novo a trial court's grant of summary disposition.1 This Court's review is limited to the evidence that was presented to the trial court at the time the motion was
1

Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). -2-

decided.2 A court properly grants a motion pursuant to MCR 2.116(C)(10) when the proffered evidence fails to establish a genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.3 A genuine issue of material fact is found to exist "when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party."4 B. APPLICABLE LEGAL PRINCIPLES It is well established that landowners have a duty to warn licensees of hidden dangers that are reasonably known to the landowner and reasonably unknown to the licensee.5 This duty does not extend to open and obvious dangers, however, unless the danger possesses special aspects that make it unreasonably dangerous to maintain.6 Whether a danger is open and obvious depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered the danger upon casual inspection.7 This objective test asks "whether a reasonable person in the plaintiff's position would have foreseen the danger, not whether the particular plaintiff knew or should have known that the condition was hazardous."8 When deciding a summary disposition motion based on the open and obvious danger doctrine, "it is important for courts . . . 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."9 However, "if 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 [against the] risk."10 Thus, in this case, the issue is whether the boulder on which Cummings was injured was an open and obvious condition and, if so, whether the condition of the sidewalk was unreasonably dangerous despite being open and obvious. C. ANALYSIS 1. OPEN AND OBVIOUS Questions of fact regarding the lighting of an area can be a ground on which to deny summary disposition. In Abke v Vandenberg, a customer purchasing hay was injured when he

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