Opinion
No. 349419
08-20-2020
TOMORI DAVIS, Plaintiff-Appellant, v. SCG HOTEL INVESTORS HOLDINGS REIT, doing business as HAMPTON INN ANN ARBOR-NORTH, Defendant/Cross-Defendant-Appellee, and FIRST HOSPITALITY GROUP, INC., Defendant-Appellee, and DK OUTDOOR SERVICES, LLC, Defendant/Cross-Plaintiff-Appellee.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Washtenaw Circuit Court
LC No. 18-000150-NO Before: MURRAY, C.J., and CAVANAGH and SWARTZLE, JJ. PER CURIAM.
In this premises-liability action, plaintiff appeals as of right the trial court's grant of summary disposition in favor of defendant SCG Hotel Investors Holding REIT. We conclude that the trial court erred because, given the limited record, there appears to be a question of fact at this stage of the lawsuit whether the snow-covered hole where plaintiff stepped was open and obvious. We vacate the order granting summary disposition and remand for further proceedings.
In the trial court, the parties stipulated to a dismissal of claims against defendant First Hospitality Group, Inc. Furthermore, the trial court granted summary disposition to defendant DK Outdoor Services, LLC, and plaintiff did not appeal that ruling. Claims involving those parties are not at issue on appeal. --------
I. BACKGROUND
Plaintiff purportedly stepped into a hole and was injured. Plaintiff alleges that the incident occurred in SCG's parking lot as he was leaving work, around 6:30pm on January 6, 2017. His workplace is next to SCG's hotel. Plaintiff claims that he did not recall seeing the hole prior to the incident, and on the evening in question, he did not see the hole because it was covered in snow. Plaintiff took photographs of the hole after the incident, using a camera with a flash.
Plaintiff claimed that SCG had breached its duty of care in maintaining the parking lot. After limited discovery, SCG moved for summary disposition under MCR 2.116(C)(10). Concluding that the condition was open and obvious, the trial court granted the motion. This appeal followed.
II. ANALYSIS
We review de novo a trial court's ruling on a motion for summary disposition. Hoffner v Lanctoe, 492 Mich 450, 459; 821 NW2d 88 (2012). Summary disposition is appropriate under MCR 2.116(C)(10) "if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." Piccione v Gillette, 327 Mich App 16, 19; 932 NW2d 197 (2019) (cleaned up). "In a premises liability action, a plaintiff must prove the elements of negligence: (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff's injury, and (4) the plaintiff suffered damages." Benton v Dart Props, Inc, 270 Mich App 437, 440; 715 NW2d 335 (2006).
Entering Premises of Another. Plaintiff sustained his injury in the hotel parking lot next to his employer. Michigan law recognizes three common-law categories for persons who enter upon the land of another: trespasser, licensee, or invitee. Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 596; 614 NW2d 88 (2000). Defendants argued before the trial court that plaintiff was a trespasser, but the trial court granted summary disposition because it determined that the danger was open and obvious. Plaintiff's status on the property remains an open question, and we will not resolve that question in the first instance on appeal. Heydon v MediaOne of Southeast Mich, Inc, 275 Mich App 267, 281; 739 NW2d 373 (2007). Accordingly, for purposes of this appeal, we will assume that plaintiff was an invitee, although his status vis-à-vis the parking lot can be pursued on remand if the facts warrant.
"Open and Obvious" in the Dark. Turning to the operative question on appeal, the trial court concluded that the snow-covered hole was an open-and-obvious danger, and it granted summary disposition on this basis. In general, although landowners generally owe a duty of care to invitees, they do not have a duty to remove open and obvious dangers. Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). "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 it upon casual inspection." Hoffner, 492 Mich at 461.
We have applied the open-and-obvious-danger doctrine in various contexts, and we have specifically held that snow and ice can be open-and-obvious conditions. See, e.g., Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 694; 822 NW2d 254 (2012). The same is true for ordinary potholes and uneven pavement. See, e.g., Lugo, 464 Mich at 520. Yet, whether an "impediment to visibility" interferes with an average person's ability to observe a hazard is a relevant factor in determining whether the hazard was open and obvious. See, e.g., Price v Kroger Co of Mich, 284 Mich App 496, 502; 773 NW2d 739 (2009).
Our Court has recently highlighted the importance of lighting conditions in the application of the open-and-obvious doctrine. See Blackwell v Franchi, 327 Mich App 354; 933 NW2d 762 (2019), lv den 940 Mich 58 (2020). In Blackwell, a dinner-party guest brought a premises-liability action against homeowners after she fell over an eight-inch drop-off from a hallway into a "darkened mudroom" of the home. Id. at 357. This Court noted that, although a question of fact existed regarding whether the drop-off was visible, deposition testimony supported the plaintiff's position that the room was dark and the drop-off was not visible. Id. at 357, n 1. Viewing the evidence in the light most favorable to the plaintiff as the nonmoving party, this Court reversed the trial court's grant of summary disposition in favor of the homeowner, id. at 361, in part because there was a genuine issue of fact on whether the alleged hazard was visible, id., at 357, n 1. Our Supreme Court denied leave to appeal, with four justices joining in separate statements regarding the denial of leave. Blackwell v Franchi, ___ Mich ___; 940 NW2d 58 (2020).
This case appears to present a similar issue. The incident occurred on a January evening when it was already dark outside. During his deposition, plaintiff testified that he did not see the hole. Although the question about lighting was briefly alluded to during the deposition, the issue was not fleshed out. When deciding SCG's motion, the trial court examined the photographs of the hole. As plaintiff points out, he took the photographs in the dark with a flash camera, and the ground conditions indicated in the photographs would not necessarily have been visible to an average person walking through the parking lot at night without aid of a camera's flash. The trial court did not discuss the lighting issue or the fact that the photographs were taken after plaintiff's fall, meaning that plaintiff's own footprints may have changed the appearance of the ground by moving and compressing the snow.
Because our Supreme Court has indicated that a change in surface levels in darkness may raise a question of fact regarding the open-and-obvious nature of a potential hazard, we vacate the trial court's decision and remand for further proceedings. On remand, to the extant that the further-developed record warrants, the parties may again seek summary disposition on the grounds already raised or new grounds.
Vacated and remanded for further proceedings. We do not retain jurisdiction.
/s/ Christopher M. Murray
/s/ Mark J. Cavanagh
/s/ Brock A. Swartzle