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STATE OF MICHIGAN
COURT OF APPEALS


ROBERT F. JAMES, Plaintiff-Appellee, v GOOD SPORTS LTD, d/b/a ANN ARBOR ICE CUBE, Defendant-Appellant.

UNPUBLISHED February 16, 2001

No. 216023 Washtenaw Circuit Court LC No. 96-002951-NO

Before: Kelly, P.J., and White and Wilder, JJ. PER CURIAM. This case arises out of an injury suffered by plaintiff when he was struck by an ice skater at defendant's ice rink in Ann Arbor. Defendant appeals as of right from three trial court orders: (1) the order denying defendant's motion for summary disposition; (2) the order granting judgment in favor of plaintiff; and (3) the order entitling plaintiff to an additional two percent interest on the judgment. We affirm. Defendant argues that the trial court erred in denying its motion for summary disposition under MCR 2.116(C)(10) on the ground that there were genuine issues of material fact regarding whether defendant owed a duty of reasonable care to protect plaintiff from hazardous conditions at the ice rink. Defendant claims that "any risk of harm posed by the conditions present on defendant's premises was not unreasonable inasmuch as nothing unusual exists about the potential to be struck by another skater during a public skating session." We disagree. We review a trial court's grant or denial of a motion for summary disposition de novo. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion under MCR 2.116(C)(10) tests the factual basis underlying the plaintiff's claim. Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). We review the pleadings, affidavits, and any other documentary evidence, as well as all reasonable inferences drawn therefrom, in a light most favorable to the nonmoving party to determine whether a genuine issue of material fact exists to warrant a trial. Id.; MCR 2.116(G)(4). Michigan law is clear that questions of fact regarding an unreasonable risk of harm may exist notwithstanding the open and obvious nature of the danger where there are special aspects

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of the condition that make the risk of harm unreasonable. In Bertrand v Alan Ford, Inc, 449 Mich 606, 610-611; 537 NW2d 185 (1995), our Supreme Court stated: Where a condition is open and obvious, the scope of the possessor's duty may be limited. While there may be no obligation to warn of a fully obvious condition, the possessor still may have a duty to protect an invitee against foreseeably dangerous conditions. Thus, the open and obvious doctrine does not relieve the invitor of his general duty of reasonable care. See Singerman v Municipal Service Bureau, Inc, 455 Mich 135, 142-143; 565 NW2d 383 (1997); Abke v Vandenberg, 239 Mich App 359, 363; ___ NW2d ___ (2000); Millikin v Walton Manor Mobile Home Park, Inc, 234 Mich App 490, 498-499; 595 NW2d 152 (1999); Hughes v PMG Building, Inc, 227 Mich App 1, 10; 574 NW2d 691 (1997). In this case, the trial court properly concluded that although the risk of being hit by another skater during a public skating session was open and obvious, issues of fact existed regarding whether there were other aspects of the skating session and ice rink that nonetheless made the risk of harm unreasonable. In response to defendant's motion for summary disposition, plaintiff introduced defendant's "sales history report" for the day of the injury which suggested that the ice rink on which plaintiff was skating at the time of his injury was overcrowded.1 There was also evidence that several young skaters were skating at unreasonably high speeds, chasing each other around the rink and cutting across the center ice. Further, deposition testimony revealed that there was inadequate supervision of the ice rink and skaters and, contrary to industry rules and regulations, there were no signs posted regarding improper behavior and no demarcation of center ice as a safe area at the time of plaintiff's injury. Thus, plaintiff's unrefuted documentary evidence, considered together, raised factual issues as to whether the conditions at defendant's ice rink were unusually hazardous at the time of plaintiff's injury, notwithstanding its open and obvious nature, sufficient to withstand a motion for summary disposition. Accordingly, the trial court did not err in denying defendant's motion for summary disposition. Defendant next argues that the trial court improperly instructed the jury that defendant was insured for plaintiff's claim. We agree that the trial court's instruction was improper, but find that, on balance, the erroneous instruction was harmless and does not warrant reversal. Claims of instructional error are reviewed on appeal for an abuse of discretion. RCO Engineering v ACR Industries, 235 Mich App 48, 66; 597 NW2d 534 (1999). Generally, a trial Defendant's assistant general manager testified in her deposition that the two NHL ice rinks each had a capacity of 250 skaters and that the Olympic rink had a capacity of 300. Defendant's sales history report revealed that 659 skaters were admitted to the public rink that day. At the time of plaintiff's injury, only the two NHL rinks, with a total maximum capacity of 500 skaters, were being utilized. The Olympic rink, which was being used by the skaters at the beginning of the skating session, was cleared for resurfacing. There is no evidence in the record that the number of skaters on the NHL rinks was decreased when the Olympic rink closed, creating a reasonable inference that the NHL rink on which plaintiff was injured was overcrowded. -21

court may give an instruction not covered by the standard instructions as long as the instruction accurately states the law and is understandable, concise, and nonargumentative. Central Cartage Co v Fewless, 232 Mich App 517, 528; 591 NW2d 422 (1998). However, supplemental instructions need not be given if they would add nothing to an otherwise balanced and fair jury charge nor enhance the ability of the jury to decide the case intelligently, fairly and impartially. Id. Moreover, it is error to instruct a jury with regard to a matter not sustained by the evidence or the pleadings. Id. Jury instructions are reviewed in their entirety, and there is no error requiring reversal if, on balance, the parties' theories and the applicable law were adequately and fairly presented to the jury. Id. The following exchange took place between plaintiff's counsel and defense witness James Brien, one of defendant's general partners: Q. And 659 people coming into a public skating session are going to buy a whole lot

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