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STATE OF MICHIGAN
COURT OF APPEALS


LINDA BOYD, Plaintiff-Appellee, v WARREN RESTAURANTS, INC., a/k/a COUNTRY BOY DELI DELIGHTS, Defendant-Appellant.

UNPUBLISHED July 3, 2001

No. 217029 Oakland Circuit Court LC No. 98-004157-NO

Before: K. F. Kelly, P.J., and O'Connell and Cooper, JJ. PER CURIAM. Defendant appeals by leave granted from the trial court's denial of its motion for summary disposition in this premises liability action. We reverse. Plaintiff Linda Boyd fractured her wrist when she tripped and fell on a cracked and raised portion of concrete on a ramp while leaving defendant's restaurant. Plaintiff estimated that the raised surface was one-half to three-quarters of an inch higher than the adjacent surface. According to plaintiff, the weather was overcast, but not raining and the ground was dry. Plaintiff stated that although she had safely walked over the area many times before, she had not noticed the alleged defect. Finally, plaintiff acknowledged that had she been looking down, she probably would have noticed it on the day in question. Defendant moved for summary disposition pursuant to MCR 2.116(C)(10), on the ground that the hazard was open and obvious. The court ruled that summary disposition premised upon the open-and-obvious rule was not appropriate because the alleged defect was located in the only passageway where customers could exit the restaurant. According to the trial court, a question of fact therefore existed as to whether the defect created an unreasonably dangerous condition. We disagree. A trial court's ruling on a motion for summary disposition is reviewed de novo. Ardt v Titan Ins Co, 233 Mich App 685, 688; 593 NW2d 215 (1999). A motion brought under MCR 2.116(C)(10) tests the factual support for a claim. In ruling on such a motion, the trial court must consider not only the pleadings, but also the depositions, affidavits, admissions and other documentary evidence. MCR 2.116(G)(5). The trial court must give the benefit of any

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reasonable doubt to the non-moving party, being liberal in finding a genuine issue of material fact. Summary disposition is appropriate only if the opposing party fails to present evidence establishing the existence of a material factual dispute. Smith v Globe Life Ins Co, 440 Mich 446, 455; 597 NW2d 28 (1999). There is no dispute that plaintiff entered defendant's premises as an invitee of that establishment, and retained that status as she departed on the walkway designated for that purpose. An "invitee" is a person: [W]ho enters upon the land of another upon an invitation which carries with it an implied representation, assurance, or understanding that reasonable care has been used to prepare the premises, and make them safe for their reception. The landowner has a duty of care, not only to warn the "invitee" of any known dangers, but to also make the premises safe, which requires the landowner to actually inspect the premises, and depending upon the circumstances, to make any necessary repairs or to warn of any discovered hazards. (Wymer v Holmes, 429 Mich 66, 71 n 1; 412 NW2d 213 (1987), citing Prosser & Keeton, Torts (5th ed),

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