Cheryl Dorsey v. Taubman Auburn Hills Associates
330690
| Mich. Ct. App. | Apr 13, 2017Background
- Plaintiff Cheryl Dorsey trip and fell on a sidewalk joint repaired with pliable sealant outside the Great Lakes Crossing Mall entrance.
- Incident occurred August 6, 2013, as plaintiff and a friend went to pick up carryout food.
- The seam between concrete slabs was repaired with sealant that compressed when stepped on, causing the fall.
- Plaintiff alleged the filler material was not solid and the repair created an unreasonable risk of harm for business invitees.
- Defendant moved for summary disposition under MCR 2.116(C)(10) arguing the hazard was open and obvious with no special aspects.
- The trial court granted summary disposition; the issue on appeal is whether the open and obvious doctrine forecloses duty.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the hazard open and obvious as a matter of law? | Dorsey argues the repaired joint presented an unreasonable risk not obvious. | Taubman Auburn Hills asserts the hazard was open and obvious and easily discoverable. | Yes; the hazard was open and obvious as a matter of law. |
| Do special aspects make the open and obvious risk unreasonably dangerous? | Special aspects rendered the risk effectively unavoidable. | No special aspects made the risk unavoidably dangerous. | No, no special aspects rendered it unavoidably dangerous. |
| Did Ziemba's expert report create a genuine issue of material fact on openness/obviousness? | Ziemba's opinions could show the danger was not obvious. | Ziemba's conclusions were improper for establishing openness/obviousness and did not raise a fact issue. | No; Ziemba's report did not create a material factual dispute. |
Key Cases Cited
- Lugo v. Ameritech Corp., Inc., 464 Mich 512 (2001) (open/obvious doctrine; premises liability duty)
- Hoffner v. Lanctoe, 492 Mich 450 (2012) (open/obvious hazard; whether effectively unavoidable)
- Novotney v. Burger King Corp., 198 Mich App 470 (1993) (objective test for openness and obviousness)
- Bertrand v. Alan Ford, Inc., 449 Mich 606 (1995) (circumstances of repair; avoidability factor)
- Joyce v. Rubin, 249 Mich App 231 (2002) (reasonable person standard for open/obvious hazard)
- West v. General Motors Corp., 469 Mich 177 (2003) (de novo review of summary disposition; duty analysis)