Summary
In Compau, the plaintiff was injured when she tripped and fell over a railroad tie she saw on the ground before her fall.
Summary of this case from Long v. KircherOpinion
Docket No. 151618. COA No. 320615.
11-25-2015
Michele COMPAU and Todd Compau, Plaintiffs–Appellees, v. PIONEER RESOURCE COMPANY, LLC, Walter A. Kilbourn, d/b/a Whittemore Inn, and Whittemore Inn Race Club, Defendants–Appellants.
Order
On order of the Court, the application for leave to appeal the April 16, 2015 judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REVERSE in part the judgment of the Court of Appeals and we REINSTATE the February 19, 2014 order of the Iosco Circuit Court that granted the defendants' motion for summary disposition. The plaintiffs' injuries arose when plaintiff Michele Compau tripped over a railroad tie on the defendants' property. When a plaintiff's injury arises from an allegedly dangerous condition on the land, the action sounds in premises liability rather than ordinary negligence, even when the plaintiff alleges that the premises possessor created the condition giving rise to the plaintiffs injury. Buhalis v. Trinity Continuing Care Servs., 296 Mich.App. 685, 692, 822 N.W.2d 254 (2012). The railroad tie was an allegedly dangerous condition on the land, but it was open and obvious. Thus, the plaintiffs' recovery is barred by the open and obvious danger doctrine. Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 516–519, 522, 629 N.W.2d 384 (2001). Because plaintiff Michele Compau testified that she had seen the railroad tie when she arrived to watch the lawn mower races, the plaintiffs have failed to present evidence to support that the lawn mower races were so distracting as to preclude application of the open and obvious danger doctrine. See Kennedy v. Great Atlantic & Pacific Tea Co., 274 Mich.App. 710, 717–718, 737 N.W.2d 179 (2007).
BERNSTEIN, J., would deny leave to appeal.