STATE OF MICHIGAN COURT OF APPEALS PETER T. MACASKILL, Personal Representative of the ESTATE OF KAREN A. MACASKILL, UNPUBLISHED March 5, 2015 Plaintiff-Appellant, V No. 319297 Macomb Circuit Court THE KROGER COMPANY and KROGER LC No. 2013-001126-NO LIMITED PARTNERSHIP, and Defendants, THE KROGER COMPANY OF MICHIGAN, Defendant-Appellee. Before: DONOFRIO, P.J., and FORT HOOD and SHAPIRO, JJ. PER CURIAM. Plaintiff Peter MacAskill, as personal representative of the estate of his deceased wife Karen MacAskill, appeals by right from the trial court order that granted summary disposition in favor of defendant Kroger Company of Michigan (Kroger) on his claims of negligence and premises liability. We affirm the trial court s grant as to the negligence claim, but reverse and remand as to the premises liability claim. 1 Defendant is a large supermarket chain that operates many stores in Michigan. On August 15, 2012, Peter drove Karen to their local Kroger to go grocery shopping. It is undisputed that Karen was a business invitee. The incident occurred at the main, but not only entrance to the store, which was served by a double-width automatic sliding door. The parking lot is gray asphalt. An area of the asphalt is marked with yellow stripes. This area is directly in 1 We review de novo a trial court s grant of summary disposition. See Ernsting v Ave Maria College, 274 Mich App 506, 509; 736 NW2d 574 (2007). -1-
front of the doorway, covers the full width of the double doors, and extends out about 15 feet into the parking lot. It is marked with yellow stripes to indicate its designation as an area where cars may drop off passengers, but not park, and as the walkway into the store. Defendant agrees that this area is often used to drop off and pick up passengers, particularly customers who are older or have difficulty walking. Peter pulled his car into the yellow-striped area to drop off Karen before he went to search for a parking space. 2 As Karen, age 69, closed the car door and turned from the car to walk toward the store entrance, she tripped on a hose that an employee had dragged across the entire width of the entryway and then partially covered with a mat. 3 She fell, suffering serious injuries that resulted in her death. Her estate brought a wrongful death suit pursuant to MCL 600.2922. In granting defendant s motion for summary disposition, the trial court found that the partially obscured hose was an open and obvious hazard and, therefore, defendant s duty to keep the premises reasonably safe for its customers did not apply to the hose. Accordingly, the court dismissed plaintiff s premises liability claim. The trial court also rejected plaintiff s negligence claim, finding that it properly sounded in premises liability, a conclusion we must affirm in light of this Court s recent decision in Jahnke v Allen, Mich App ; NW2d (December 16, 2014; Docket No. 317625), lv pending, slip op at 2-3 ( A plaintiff cannot avoid the open and obvious doctrine by claiming ordinary negligence, when the facts only support a premises liability claim ). 4 On the date in question, Kroger kept flowers for sale all along the front wall outside the store. Just minutes before the MacAskills arrived, a manager asked a 16-year-old grocery bagger to water these flowers. The bagger had never performed that task before. He connected a hose from a spigot in the area where bottles are returned and ran it outside through a door used by 2 Kroger employees testified that cars routinely pull up into that entry area so that the driver may drop off a passenger before locating an available parking spot. Defendant does not argue, at least for purposes of its summary disposition motion, that this practice is improper or unforeseeable. 3 The events giving rise to this case were videotaped by a store security camera and have been viewed by this Court. The factual recitation herein is derived from that video and the depositions of Kroger employees. 4 In the instant case, plaintiff s complaint contained the assertion that employees and/or agents of Kroger... negligently created a hidden trip hazard by placing a hose under a mat very close to the entrance of the store.... [This] created an unreasonably dangerous trip hazard that Mrs. MacAskill encountered as she was simply attempting to enter the store. The complaint contained two causes of action, the first captioned Premises Liability and the second Negligence. The complaint also demanded a trial by jury as guaranteed by the Article 1, 14 of the Michigan Constitution. -2-
employees only and onto the asphalt. The hose was approximately ¾ of an inch in diameter. The bagger extended the hose to the flowers by laying it across a substantial part of the front of the store including the entire yellow-striped entryway. After extending the hose, the bagger went inside the store and returned with a gray floor mat which he placed over a portion of the hose within the yellow-striped entryway. However, rather than covering the entire length of hose that ran across the marked entryway, he placed the mat in such a fashion as to cover approximately 80% of the hose crossing the entryway, leaving a short section of hose exposed within the entryway on either side of the mat. The bagger agreed that partially covering the hose obviously ma[d]e it harder to see a hose running across the entrance to the store. A few minutes later, the MacAskills pulled into the marked entryway in their minivan and Peter dropped Karen off. According to the testimony of the Kroger employee who viewed the video and photos, Karen was close to the hose when she got out of the front passenger seat of the minivan and took only one or two steps before tripping on the hose. This employee also testified that Karen was facing the front door when she fell and appeared to be looking where she was going. This is consistent with our viewing of the videotape. A Kroger employee who viewed the videotape testified testified that Karen stepped out of the vehicle, put one foot down, went to take the second step and that s when she fell. Karen suffered multiple injuries and shortly thereafter died from complications. While we agree with the trial court that this case sounds in premises liability, we conclude that under the unusual circumstances presented here, there is a question of fact whether the hazard was open and obvious, i.e., whether a reasonable person in plaintiff s position would have seen and avoided the hose. 5 Watts v Michigan Multi-King, Inc, 291 Mich App 98, 102-103; 804 NW2d 569 (2010); Slaughter v Blarney Castle, 281 Mich App 474, 479; 760 NW2d 287 (2008). It cannot be seriously disputed that it would be unexpected to encounter a garden hose on the walkway into a supermarket. We find no cases involving similar circumstances and this case bears no resemblance to the many cases in which a plaintiff failed to keep watch for routinely 5 The test is what a reasonable person would have observed and done upon exiting a vehicle in the location from which the MacAskill vehicle was located. Accordingly, we have not considered whether she had any personal limitations on her ability to observe, but only the limits faced by anyone exiting a car at that particular position. The dissent observes that other store patrons did not trip on the hose, though conceding that this is not dispositive. Critically, all of those individuals approached the entryway from a far greater distance thereby allowing observation over a much wider space and for a far longer time than anyone actually situated in this plaintiff s position, which defendant concedes was a proper point of exit from a vehicle. Notably, the trial court never concluded that the hose would be readily apparent to someone in plaintiff s position, stating rather that [t]he hose is clearly visible from a substantial distance away a position that plaintiff was never in. -3-
present conditions such as potholes or ice on cold days. See, e.g., Hoffner v Lanctoe, 492 Mich 450; 821 NW2d 88 (2012). Such conditions present daily hazards in Michigan. Id. at 454. And, even if a hose, fully exposed in such an inappropriate location, would be considered open and obvious, such a conclusion cannot be reached as a matter of law where the portion of the hose in the entryway was largely camouflaged by the mat that covered most, but not all of it. We affirm the dismissal of plaintiff s negligence claim, but reverse and remand for trial on the premises liability claim. We do not retain jurisdiction. /s/ Karen Fort Hood /s/ Douglas B. Shapiro -4-
STATE OF MICHIGAN COURT OF APPEALS PETER T. MACASKILL, Personal Representative of the ESTATE OF KAREN A. MACASKILL, UNPUBLISHED March 5, 2015 Plaintiff-Appellant, v No. 319297 Macomb Circuit Court THE KROGER COMPANY and KROGER LC No. 2013-001126-NO LIMITED PARTNERSHIP, and Defendants, THE KROGER COMPANY OF MICHIGAN, Defendant-Appellee. Before: DONOFRIO, P.J., and FORT HOOD and SHAPIRO, JJ. DONOFRIO, P.J. (concurring in part and dissenting in part). Because plaintiff s claim sounds in premises liability and not ordinary negligence, I concur with the majority that summary disposition was proper with respect to plaintiff s ordinary negligence claim. However, with respect to the majority s view that there is a question of fact as to whether the hazard was open and obvious, I respectfully dissent because the hose upon which Karen MacAskill tripped was easily observable from her position. Plaintiff s decedent, Karen MacAskill, tripped and fell on a garden hose in front of the entrance to defendant s St. Clair Shores store in August 2012. An employee had placed the hose across the entrance doors so plants to the side of the entrance could be watered, and the employee covered a portion of the hose with a mat. However, the mat did not cover the entire hose, and Karen, after alighting from her van at the crosswalk, 1 stepped toward the entrance and 1 The majority s claim that the yellow stripes on the ground indicate its designation as an area where cars may drop off passengers is not supported by the record. While the evidence shows -1-
tripped over a portion of the hose that was not covered by the mat. 2 She fell into the store doors and sustained severe injuries, including bone fractures to both arms, which required surgery. Unfortunately, Karen suffered a heart attack a few days later and died. The autopsy report found that the fractures and surgery exacerbated her heart disease and thus played a causative role in her death. Plaintiff brought this action based on two main theories, ordinary negligence and premises liability. For the premises liability claim, plaintiff alleged that defendant and its employees owed Karen, a business invitee, a duty to provide a safe place, and breached that duty by failing to inspect for, warn of, and remedy the unreasonably dangerous condition. For his negligence count, plaintiff alleged that defendant had a duty to act with reasonable care, including a duty not to create unreasonably dangerous conditions. Plaintiff claimed that defendant should have known that the hose and mat posed an unreasonably dangerous trip hazard. Defendant allegedly breached this duty by negligently placing the hose under the mat at the entrance where customers could be expected to walk. Defendant moved for summary disposition under MCR 2.116(C)(10). Defendant alleged that the bright green hose could be clearly seen on casual inspection and was thus open and obvious. Further, defendant claimed that plaintiff s negligence claim was not viable because when an injury occurs due to a condition on the land, the case sounds exclusively in premises liability. The court granted defendant s motion for summary disposition, finding that the condition was open and obvious. After reviewing the photos and video that depicted the scene immediately before, during, and after the incident, the court found that the premises liability claim failed as a matter of law because there was no question of fact that the hose was open and obvious, as it was clearly visible. Further, the court concluded that there was no negligence claim on these facts as well. that people did occasionally drop passengers off within this area, there is no evidence to show that the area was designated as a drop-off area. Instead, the stripes are similar to what are routinely and commonly found in crosswalks, which designate an area where motorists should exercise caution because pedestrians are to cross there, in this case from the parking lot to the main entrance. 2 The majority s statement that the hose covered 80% or most of the entryway leaving a short section of hose exposed is misleading. The video shows that only about a third or 33% of the hose that was visible in the video was covered, but because other photos taken at the scene show that the hose spanned well beyond the view of the video camera, the actual percentage of the hose that was covered is even lower than that. In other words, while the mat arguably may have covered 80% of the hose within a particular five- or six-foot section, this fact is misleading and irrelevant because (1) Karen was located outside this particular section and (2) the hose was visible over a much longer distance than this arbitrarily selected section. In fact, the employee who watered the plants that day testified that he ran the hose out from the side of the building and ran it all the way around the building around to the front, across the entryway in question. And because of this great length, the employee had to hook multiples hoses together. -2-
I. ORDINARY NEGLIGENCE CLAIM On appeal, plaintiff first argues that the trial court erred in determining that his claims sounded solely in premises liability instead of both ordinary negligence and premises liability. Plaintiff claims that the employee s conduct in setting out the hose and mat proximately caused Karen s fall and, thus, the claim sounded in negligence and premises liability. Defendant counters that the claim involved a condition on the land and thus sounded exclusively in premises liability. This distinction is important because, while the open and obvious doctrine applies to premises liability claims, it does not apply to ordinary negligence claims. Wheeler v Cent Mich Inns, Inc, 292 Mich App 300, 304; 807 NW2d 909 (2011); see also Jahnke v Allen, Mich App ; NW2d (Docket No. 317625, issued December 16, 2014), slip op, pp 2-3. I concur with the majority s conclusion that the trial court properly granted summary disposition in favor of defendant on plaintiff s ordinary negligence claim because plaintiff s claim stemmed from a condition on the land and not from the employee s conduct. Of course, courts are not bound by the labels that litigants attach to their pleadings. Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 691-692; 822 NW2d 254 (2012). Looking beyond the procedural labels, it is clear that the true nature of plaintiff s claim was that Karen was injured because of a condition on the land specifically, a hose stretched across the ground at a store entrance. The complaint is alleging injury by a condition of the land, instead of the overt acts of a premises owner. Kachudas v Invaders Self Auto Wash, Inc, 486 Mich 913, 914; 781 NW2d 806 (2010). That the condition was created by defendant s employee did not transform the complaint into one for negligence. Buhalis, 296 Mich App at 691. The claim arose from the physical state of the premises and, as such, sounded exclusively in premises liability. Thus, I agree with the majority that the trial court s dismissal of plaintiff s negligence claim was correct. II. PREMISES LIABILITY CLAIM OPEN AND OBVIOUS With respect to plaintiff s premises liability claim, he raises a single argument on appeal plaintiff asserts that the hazard was not open and obvious and that the trial court erred in concluding otherwise. Karen was a business invitee, and defendant owed a duty to exercise reasonable care to warn or protect her as a business invitee from unreasonable risks of harm stemming from dangerous conditions on the land. Ghaffari v Turner Constr Co, 473 Mich 16, 21; 699 NW2d 687 (2005); Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185 (1995). However, this duty does not require a landowner to protect an invitee from dangers that are open and obvious. Benton v Dart Properties, 270 Mich App 437, 440-441; 715 NW2d 335 (2006). The rationale for the doctrine is that there should be no liability for failing to warn someone of a risk or hazard [that] he appreciated to the same extent as a warning would have provided. Glittenberg v Doughboy Recreational Indus, Inc, 436 Mich 673, 683-684; 462 NW2d 348 (1990) (quotation marks omitted). Additionally, invitors are not absolute insurers of the safety of their invitees. Bertrand, 449 Mich at 614. -3-
Whether a hazard is open and obvious is preliminarily a question of law. Knight v Gulf & Western Props, Inc, 196 Mich App 119, 126; 492 NW2d 761 (1992), citing Riddle v McLouth Steel Products Corp, 440 Mich 85, 95-97; 485 NW2d 676 (1992). A plaintiff s failure to see a hazardous condition does not eliminate the applicability of the open and obvious danger doctrine because the test is objective: the test is whether an average user of ordinary intelligence would have discovered the hazard upon casual inspection. Watts v Mich Multi-King Inc, 291 Mich App 98, 103; 804 NW2d 569 (2010); Novotney v Burger King Corp (On Remand), 198 Mich App 470, 474-475; 499 NW2d 379 (1993). I agree with the majority that the average-user test must be applied from Karen s point of view, i.e., from her position where she was dropped off directly in front of the entrance. However, a review of the photos and video submitted to the trial court shows that the hose and mat are clearly visible even from Karen s position. It is important to note that Karen tripped on the portion of the hose that was not covered or obscured by the mat. One photo attached to defendant s motion for summary disposition was taken near what would have been Karen s perspective. It shows the green hose clearly contrasting with the gray pavement, the darker gray mat with an obvious diamond pattern, and the yellow lines of the crosswalk. It is an inescapable conclusion that the hose would have been clearly visible upon casual inspection to an ordinary person with average intelligence approaching the store from Karen s perspective. 3 I would note that the majority s reliance on what certain witnesses believe the video purported to show is not appropriate. In fact, such testimony is neither probative nor admissible. See MRE 1002 (the socalled best evidence rule, stating that [t]o prove the content of a... recording..., the original... recording... is required.... ) The video and photographs, which documented the events leading up to and after Karen s fall, speak for themselves. 4 The majority has identified no reason why a person in Karen s position would not have been able to notice the hose. While the mat acted to conceal a portion of the hose, it had no effect on the vast majority of the hose that was exposed, or more importantly, it did not conceal the section of hose that Karen tripped on. The majority also suggests that the hazard was not open and obvious because the presence of the hose was unexpected. However, the introduction of this concept in the present case is circumventing the correct, legal test. No 3 The videotape also reveals that during the six minutes that the hose was not covered by the mat, 22 people walked over it without incident. During the approximately eight minutes after the mat was placed over the hose, 54 people had walked over the hose without any incident. This large amount of people being able to see and successfully navigate over the hazard, while not dispositive, nonetheless supports our holding that an average user with ordinary intelligence would have been able to appreciate the hazard upon casual inspection and avoid it. 4 Aside from being irrelevant, the majority s reliance on the employee s statement that the mat ma[d]e it harder to see a hose running across the entrance is misplaced because the employee s statement was not made in relation to the unexposed portions of the hose; there is no dispute that the concealed portion of the hose was hard to see. In fact, that same employee later stated that he nevertheless could see th[e] hose. -4-
caselaw has established that in order to be open and obvious, a hazard must be expected. In any event, a reasonable person approaching the Kroger store, as Karen did, would have seen the employee watering the plants in front of the store and would have been alerted to the presence of a hose. As the evidence clearly establishes, the hose was plainly visible, even from just a couple feet away; therefore, I would hold that the hazard upon which Karen tripped was open and obvious, and I would affirm the trial court s grant of summary disposition in favor of defendant on the premises liability claim. /s/ Pat M. Donofrio -5-