BULLARD V OAKWOOD ANNAPOLIS HOSPITAL
Docket No. 317334
Court of Appeals of Michigan
December 9, 2014
308 MICH APP 403
Submitted November 5, 2014, at Detroit. Decided December 9, 2014, at 9:05 a.m.
Bruce Bullard, Jr., brought a premises liability action against Oakwood Annapolis Hospital in the Wayne Circuit Court. Plaintiff, an electrician, performed a monthly inspection of defendant‘s generators. Servicing one of the generators required plaintiff to climb an indoor ladder to reach the roof of the hospital, open a hatch, cross a stone walkway, scale another ladder, cross a metal catwalk to the generator, and walk across three 2 × 8 planks to reach the generator‘s control panel. The planks were not secured and were approximately 5 to 6 feet above the roof. On February 23, 2011, plaintiff attempted to cross the wooden planks. He slipped on ice that had formed on the planks and was injured when he fell onto the roof. Defendant moved for summary disposition, asserting that the ice was an open and obvious hazard that could not give rise to liability. The court, Jeanne Stempien, J., denied the motion. Defendant appealed on leave granted.
The Court of Appeals held:
The duty owed to a visitor by a landowner depends on whether the visitor was a trespasser, licensee, or invitee at the time of injury. A landowner must exercise reasonable care to protect an invitee from an unreasonable risk of harm caused by a dangerous condition on the land. A landowner, however, does not have to protect invitees from open and obvious hazards because those hazards, by their nature, apprise the invitee of the potential danger, which the invitee may then take reasonable measures to avoid. Whether a hazard 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. If a hazard is open and obvious, liability does not arise unless special aspects of the hazard make even the open and obvious risk unreasonably dangerous as when (1) the hazard is rendered unreasonably dangerous because it is effectively unavoidable. In this case, there was no dispute that (1) plaintiff was an invitee, (2) the ice was the proximate cause of his injuries and caused him damages, and (3) the ice was an open and obvious hazard. The only question was whether the ice had special aspects that could give rise to liability. The ice on which plaintiff slipped was not unreasonably dangerous in and of itself because it did not present a substantial risk of death or severe injury. Unavoidability is characterized by an inability to be avoided, an inescapable result, or the inevitability of a given outcome. The fact that a plaintiff‘s employment might involve facing an open and obvious hazard does not make the open and obvious hazard effectively unavoidable. Plaintiff, in this case, had ample opportunity to avoid the ice. His fall was the result of choices he made that could have been made differently; he was not effectively trapped by the ice. Because the ice was neither unreasonably dangerous in and of itself nor effectively unavoidable, the trial court erred when it ruled that there was a question of fact as to whether the ice had special aspects that could give rise to liability.
Reversed and remanded for entry of summary disposition in favor of defendant.
NEGLIGENCE — PREMISES LIABILITY — OPEN AND OBVIOUS DANGERS — SPECIAL ASPECTS — EFFECTIVELY UNAVOIDABLE DANGERS — JOB DUTIES.
If a hazard is open and obvious, liability does not arise unless special aspects of the hazard make even the open and obvious risk unreasonably dangerous as when (1) the hazard is, in and of itself, unreasonably dangerous, or (2) the hazard is rendered unreasonably dangerous because it is effectively unavoidable; unavoidability is characterized by an inability to be avoided, an inescapable result, or the inevitability of a given outcome; the fact that a plaintiff‘s employment might involve facing an open and obvious hazard does not make the open and obvious hazard
Bernstein & Bernstein, PC (by Mark M. Grayell), for plaintiff.
Tanoury, Nauts, McKinney & Garbarino, PLLC (by Linda M. Garbarino, Anita Comorski, and Carmine G. Paterra), for defendant.
Before: RIORDAN, P.J., and SAAD and TALBOT, JJ.
SAAD, J.
I. INTRODUCTION
This case stems from a slip and fall accident. Plaintiff, Bruce Bullard, Jr. (Bullard), slipped on ice that formed on a wood plank on the roof at defendant Oakwood Annapolis Hospital (Oakwood). Under Michigan caselaw, ice is an “open and obvious” hazard. Open and obvious hazards cannot give rise to liability unless they cause an accident that involves “special aspects.” Specifically, a hazard might have special aspects that give rise to liability if the hazard is (1) “unreasonably dangerous” in and of itself, or (2) “effectively unavoidable” for the plaintiff.
The trial court wrongly denied Oakwood‘s motion for summary disposition. It correctly held that the ice was an open and obvious hazard, but erred by holding that the ice was “unreasonably dangerous” in and of itself, or was “effectively unavoidable” for Bullard. The only issue before our Court is whether the ice on which Bullard slipped was (1) unreasonably dangerous in and of itself or (2) effectively unavoidable for him.
Because the ice was neither unreasonably dangerous in and of itself, nor was it effectively unavoidable for Bullard, no special aspects were present, and the ice was an open and obvious hazard that could not
II. FACTS AND PROCEDURAL HISTORY
At all relevant times, Bullard was employed as an electrician for Edgewood Electric, which held a contract with Oakwood to perform maintenance. Bullard has worked at Oakwood since 1998, and was assigned to work full-time at the hospital in 2009. Part of his property maintenance duties included testing the hospital‘s five generators, which Bullard did on a monthly basis. One of the generators is located on the hospital roof and is not easy to access—servicing it required Bullard to climb an indoor ladder to reach the roof, open a hatch, cross a stone walkway, scale another ladder, cross a metal catwalk to the generator, and finally walk across three 2 × 8 planks to reach the generator‘s control panel. The planks, which are the only way to reach the control panel, are not secured and are approximately 5 to 6 feet above the roof.
In late February 2011, Bullard prepared to do his monthly inspection of the roof generator. On February 22, he asked hospital maintenance to clear snow from the stone walkway and 2 × 8 planks, because he planned to inspect the generator the next day. On February 23, at around 4:00 or 4:30 a.m., Bullard went up to the roof to inspect the generator. Though the roof was covered in snow, the stone pathway, metal catwalk, and planks had been cleared, as requested. As Bullard stepped on the first wooden plank to reach the control panel, he slipped on ice that had formed on the plank, and injured himself by falling to the roof below.
Bullard subsequently filed suit in the Wayne Circuit Court, and alleged that Oakwood was liable for negligence because it failed to remove a “dangerous condition“—ice—from its premises. He emphasized that the ice was “unavoidable” as part of his work duties. Oakwood responded by moving for summary disposition under
As previously stated, the trial court wrongly denied Oakwood‘s motion for summary disposition. In its holding from the bench, the court stated correctly that the ice on the 2 × 8 planks was an open and obvious condition, but it erred when it held that there was a question of fact as to whether the ice was unreasonably dangerous or effectively unavoidable as part of Bullard‘s job.
Oakwood sought leave to appeal the trial court‘s order. Our Court granted the application for leave, but explicitly limited the appeal to the issues raised in Oakwood‘s application—namely, whether the ice was unreasonably dangerous or effectively unavoidable for Bullard.1 Specifically, Oakwood argues that ice is not a hazard that presents a substantial risk of severe harm or death, which means that it cannot be unreasonably dangerous. And Oakwood stresses that Bullard ultimately chose to access the generator and face whatever hazards existed on the way
Bullard argues that the ice was an unreasonably dangerous hazard because of his injuries. He also claims that the ice was effectively unavoidable because it was located on the 2 × 8 planks, and the planks were the only way for him to access the generator control panel—which he had to access in the course of his employment.
III. STANDARD OF REVIEW
A trial court‘s decision on a motion for summary disposition is reviewed de novo. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). A motion for summary disposition under
IV. ANALYSIS
A. THE OPEN AND OBVIOUS DOCTRINE
A plaintiff who brings a premises liability action must show “(1) the defendant owed [him] a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of [his] injury, and (4) [he] suffered damages.” Id. Sanders v Perfecting Church, 303 Mich App 1, 4; 840 NW2d 401 (2013) (citation omitted). “The duty owed to a visitor by a landowner depends on whether the visitor was a trespasser, licensee, or invitee at the time of the injury.” Id. A visitor is granted invitee status only if the purpose for which he was invited onto the owner‘s property was “directly tied to the owner‘s commercial business interests.” Stitt v Holland Abun-
dant Life Fellowship, 462 Mich 591, 604; 614 NW2d 88 (2000). A landowner must “exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land.” Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001).
However, Michigan law is clear that a landowner does not have to protect invitees from open and obvious dangers, because “such dangers, by their nature, apprise an invitee of the potential hazard, which the invitee may then take reasonable measures to avoid.” Hoffner v Lanctoe, 492 Mich 450, 460-461; 821 NW2d 88 (2012). “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.” Id. at 461. This standard is an objective, not subjective, one and requires “an examination of the objective nature of the condition of the premises at issue.” Id. (quotation marks and citation omitted). “The objective standard recognizes that a premises owner is not required to anticipate every harm that may arise as a result of the idiosyncratic characteristics of each person who may venture onto his land.” Id. at 461 n 15.
B. SPECIAL ASPECTS
Recently, the Michigan Supreme Court emphasized that “exceptions to the open and obvious doctrine are narrow and designed to permit liability for such dangers only in limited, extreme situations.” Hoffner, 492 Mich at 472. “[L]iability does not arise for open and obvious dangers unless special aspects of a condition make even an open and obvious risk unreasonably dangerous. This may include situations in which it is ‘effectively unavoidable’ for an invitee to avoid the hazard posed by such an inherently dangerous condition.” Id. at 455. In other words, an open and obvious hazard that ordinarily precludes liability can have special aspects that give rise to liability in one of two ways: (1) the hazard is, in and of itself, unreasonably dangerous or (2) the hazard was rendered unreasonably dangerous because it was effectively unavoidable for the injured party. Id. at 472-473; see also Lugo, 464 Mich at 517-519.
1. UNREASONABLY DANGEROUS IN AND OF ITSELF
An open and obvious hazard that is unreasonably dangerous can give rise to liability. Hoffner, 492 Mich at 472-473; Lugo, 464 Mich at 517-519. An “‘unreasonably dangerous’ hazard must be just that—not just a dangerous hazard, but one that is unreasonably so. And it must be more than theoretically or retrospectively dangerous, because even the most unassuming situation can often be dangerous under the wrong set of circumstances.” Hoffner, 492 Mich at 472.
Because the question of what constitutes an unreasonably dangerous condition is a question of law, we examine Michigan caselaw for guidance. An example of an open and obvious hazard that is unreasonably dan-gerous is “an unguarded thirty foot deep pit in the middle of a parking lot.” Lugo, 464 Mich at 518. On the other hand, an example of an open and obvious hazard that is not unreasonably dangerous is ice and frost located on “several 2 x 4 slats of wood” nailed at the lower edge of an approximately 20-foot-high roof. Perkoviq v Delcor Homes-Lake Shore Pointe, Ltd, 466 Mich 11, 12-13; 643 NW2d 212 (2002). “The mere presence of ice, snow, or frost on a sloped rooftop generally does not create an unreasonably dangerous condition.” Id. at 19-20.
Here, the ice on which Bullard slipped is not unreasonably dangerous in and of itself because it does not “present... a substantial risk of death or severe injury....” Lugo, 464 Mich at 518. Bullard slipped and fell off a 2 x 8 plank that was 5 to 6 feet above the roof. This danger is clearly much less of a danger than that encountered by the plaintiff in Perkoviq, who slipped and fell off a 2 × 4 slat of wood that was approximately 20 feet above the ground. Perkoviq, 466 Mich at 12-13. Moreover, the
Accordingly, the ice is not unreasonably dangerous in and of itself, and we reverse the trial court‘s holding that it could be shown to have been unreasonably dangerous.
2. EFFECTIVELY UNAVOIDABLE
An open and obvious hazard that is effectively unavoidable for the plaintiff is unreasonably dangerous and, thus, may give rise to liability. Hoffner, 492 Mich at 472; Lugo, 464 Mich at 517-518. “Unavoidability is characterized by an inability to be avoided, an inescapable result, or the inevitability of a given outcome.” Hoffner, 492 Mich at 468. An effectively unavoidable hazard, therefore, “must truly be, for all practical purposes, one that a person is required to confront under the circumstances.” Id. at 472. Put simply, the plaintiff must be “effectively trapped” by the hazard. Joyce v Rubin, 249 Mich App 231, 242; 642 NW2d 360 (2002). The mere fact that a plaintiff‘s employment might involve facing an open and obvious hazard does not make the open and obvious hazard effectively unavoidable. See Perkoviq, 466 Mich at 18; Hoffner, 492 Mich at 471-472.
Here, the ice on which Bullard slipped was not effectively unavoidable. In fact, the opposite is true: Bullard had ample opportunity to avoid the ice. He confronted the ice after making multiple decisions, any one of which he could have decided differently and thus avoided the hazard. Bullard was clearly aware of the potential risks of inspecting the generator on February 23, because he asked the hospital staff to clear the stone pathway and wood planks on February 22.4 He arrived at Oakwood between 4:00 a.m. and 4:30 a.m. on February 23—a time when it was still dark. Rather than wait until daylight, Bullard chose to inspect the generator at this early hour, when it was dark and cold. When he opened the hatch to the roof, he saw that the pathways to the generator had been cleared of snow, as he had asked. As noted, the path to the generator involved a walk across multiple surfaces: a stone walkway, another ladder, a metal catwalk, and the 2 × 8 planks. Bullard chose to
traverse each of these, before eventually slipping on the ice, falling, and suffering injury.
Accordingly, Bullard‘s fall was the end result of choices he made that could have been made differently. In no way was he “effectively trapped” by the ice—he consciously decided to put himself in a position where he would face the ice. Joyce, 249 Mich App at 242. After informing the hospital staff of the roof‘s snowy condition on February 22, Bullard could have refused to inspect the generator the next day, and instead waited until the weather improved—the inspection was a monthly occurrence and not necessitated by an emergency. On February 23, he could have waited to inspect the generator until later in the morning, when daylight might have alerted him to the possible hazards of doing so. When he reached the roof, he could have turned back—but he did not. He could have returned
In sum, there is nothing inescapable or inevitable about Bullard‘s accident. See Hoffner, 492 Mich at 468. His argument to the contrary, which is that he was required to face the ice by virtue of his employment, is unavailing, and similar arguments have been rejected by the Michigan Supreme Court. See Perkoviq, 466 Mich at 18; Hoffner, 492 Mich at 471-472. His job duties did not mandate that he encounter an obvious hazard.
Bullard could have made different choices that would have prevented him from encountering the ice, and the ice was accordingly not effectively unavoidable. The trial court‘s ruling that the ice could be shown to be effectively unavoidable was wrong.
V. CONCLUSION
The trial court‘s holding that the ice might have been unreasonably dangerous in and of itself, or effectively unavoidable for Bullard, is incorrect as a matter of law. Its holding is thus reversed, and we remand for entry of an order granting Oakwood‘s request for summary disposition under
Reversed and remanded. We do not retain jurisdiction.
RIORDAN, P.J., and TALBOT, J., concurred with SAAD, J.