In this premises-liability action, plaintiff appeals as of right the trial court’s grant of summary disposition in favor of defendants. We affirm.
*712 While plaintiff was shopping, he slipped on crushed green grapes or green grape residue on the floor of defendants’ grocery store. Plaintiff began to fall, reached for his shopping cart, and sustained injuries. The trial court granted summary disposition in favor of defendants pursuant to MCR 2.116(0(10), ruling that the slipping hazard posed by the crushed grapes or grape residue was open and obvious as a matter of law.
We review de novo a trial court’s grant of summary disposition under MCR 2.116(0(10).
Spiek v Dep’t of Transportation,
In a premises liability action, a plaintiff must prove (1) that the defendant owed a duty to the plaintiff, (2) that the defendant breached the duty, (3) that the defendant’s breach of the duty caused the plaintiff’s injuries, and (4) that the plaintiff suffered damages.
Jones v Enertel, Inc,
The test to determine if a danger is open and obvious is whether “an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection[.]”
Novotney v Burger King Corp (On Remand),
Turning to the case at bar, plaintiff first argues that the slipping hazard posed by the crushed grapes or grape residue on defendants’ floor was not open and obvious. We cannot agree. Plaintiff asserts that the crushed grape residue was green and brown in color and that the slipping hazard was therefore inconspicuous against the backdrop of the beige supermarket floor. He further asserts that the grape residue “was a film,” “was at floor level,” and “did not stick up above the floor.” However, plaintiff also testified during his deposition that the crushed grapes were readily observable after he slipped and that he and several other people all noticed the existence of the crushed grapes and graрe residue once they actually looked at the floor. Specifically, plaintiff testified that after he slipped, “I could see the grapes. And when the manager was there, you [sic] could see the grapes. The stock boy could see the grapes. The customers that had come around, they could see the grapes. It was no greаt mystery. There were grapes *714 on the floor.” Plaintiff also testified that nothing blocked his view of the supermarket floor immediately before his accident.
Plaintiffs contention that the crushed grapes and grape residue were not open and obvious is thus belied by his own deposition testimony. It is well settled that a party may not create an issue of matеrial fact merely by contradicting his or her own deposition testimony.
Klein v Kik,
Plaintiff also argues that the slipping hazard posed by the crushed grapes or grape residue was not readily apparent to him and that he could not have been еxpected to notice or observe the hazard. We disagree. Citing
Jaworski v Great Scott Supermarkets, Inc,
“[The defendant’s store in this case was a ‘self-service’ type store, in which its merchandise was displayed on counters or on shelves so that customers сould inspect the merchandise as they walked in the aisles or passageways of the store. The storekeeper certainly intended that his customers would devote the major part of their attention to the merchandise which was being displayed, rather than to the floor to discover possible obstructions in the aisle, and in our opinion that сircumstance must be considered in determining the degree of care which the storekeeper should use in maintaining safe passageways. A patron of a self-service type store, we think, is entitled to rely upon the presumption that the proprietor will see that the passageways provided for his use are reasonably safe, considering the fact that while using these passageways he may be devoting some of his attention toward inspecting the merchandise.” [Id. at 699-700, quoting Provost v Great Atlantic & Pacific Tea Co, Inc, 154 So 2d 597, 601-602 (La App, 1963).]
The problem with plaintiffs assertion in this regard is that
Jaworski
was a contributory negligence case. See
Jaworski, supra
at 696-697. The issue in
Jaworski
was
*716
not whether the defendant supermarket owed the plaintiff a duty, but whether the plaintiff was contributorily negligent in failing to observe and avoid slipping on the spilled cottage cheese. See
Clark v Kmart Corp (On Remand),
The issue in the case at bar is not whether plaintiff was comparatively negligent in failing to observe and avoid the crushed grapes or grape residue on defendants’ floor. Insteаd, the issue is whether defendants owed plaintiff a duty in the first instance. We readily concede that shoppers in modern grocery stores are often distracted by displays and merchandise. But mere distractions are not sufficient to prevent application of the open and obvious danger doctrine. Lugo, supra at 522. Instead, to prevent applicаtion of the open and obvious danger doctrine to a typical and obvious condition, the condition must be “effectively unavoidable” or “unreasonably dangerous because of special aspects that impose an unreasonably high risk of severe harm.” Id. at 518. “However, typical open and obvious dangers ... do not give rise to thesе special aspects.” Id. at 520.
*717 Like plaintiff in the present case, who argues that he was distracted by the displays and merchandise in defendants’ supermarket, the plaintiff in Lugo argued that she did not notice or observe a potentially hazardous pothole because she was “distract[ed]” by moving vehicles in the parking lot. Id. at 522. The Lugo Court ruled that the relevant inquiry was nоt merely whether the plaintiff was distracted, but whether there was anything “unusual” about the plaintiffs distraction that would preclude application of the open and obvious danger doctrine. Id. The Court concluded:
While plaintiff argues that moving vehicles in the parking lot were a distraction, there is certainly nothing “unusual” about vehicles being driven in a parking lot, and, accordingly, this is nоt a factor that removes this case from the open and obvious danger doctrine.
[P]otholes in pavement are an “everyday occurrence” that ordinarily should be observed by a reasonably prudent person. Accordingly, in light of plaintiffs failure to show special aspects of the pothole at issue, it did not pose an unreasonable risk to her. [Id. at 522-523.]
In light of Lugo, we conclude that there was nothing unusual about plaintiffs purported distraction; nor is there anything unusual about spilled grapes or grape residue on a supermarket floor. Therefore, even if the reasoning of Jaworski still applies under our system of comparative negligence, it does not obviate the fact that the crushed grapes on which plaintiff slipped were open and obvious as a matter of law. Reasonable minds could not disagree that the crushed grapes on which plaintiff slipped were not “unreasonably dangerous because of special aspects that impose an unreasonably high risk of severe harm.” Lugo, supra at 518.
*718 Plaintiff next contends that even if the crushed grapes and grape residue were obvious and readily apparent, the open and obvious danger doctrine does not apply to bar recovery in this case because defendants should have known that he would be distracted by their displays and merchandise. Again, we disagree. It is true that in some cases, “ ‘the possessor of land сan and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger.’ ” Bertrand, supra at 611, quoting 2 Restatement Torts, 2d, § 343A, comment f, p 220. We fully recognize that “ ‘[s]uch reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expеct that the invitee’s attention may be distracted, so that he will not discover what is obvious,’ ” and that in such cases the open and obvious danger doctrine will not apply to bar the defendant’s duty to the invitee. Bertrand, supra at 611-612, quoting 2 Restatement Torts, 2d, § 343A, comment f, p 220.
However, plaintiff in this case has simply failed to raise a genuine issue of fact with respect to whethеr defendants knew or should have known that his attention would be distracted in this manner. We do not dispute that the evidence in this case, including numerous past accident reports from several of defendants’ supermarkets, established that defendants should have been aware of the potential slipping hazard posed by crushed grapes or grapе residue. In contrast, however, there was no evidence introduced in this case to establish or even suggest that defendants knew or should have known that plaintiff would be sufficiently distracted by the displays and merchandise so as to divert his attention from this otherwise open and obvious slipping hazard. Again referring to Jaworski, plaintiff essentially asks us to conclude that all shoppers, as a *719 matter of course, are distracted by supermarket displays and merchandise. However, we will not create such a broad rule, especially in light of the fact that public policy requires individuals to take some degree of reasonable care for their own safety. Bertrand, supra at 616-617. Moreover, as this Court has previously observed, “We see no valid reason to extend Jaworski and create a special standard of care for supermarket patrons.” Charleston, supra at 419. In short, it was plaintiffs burden to establish a genuine issue of material fact with respect to whether defendants “ha[d] reason to expect that the invitee’s attention [might have been] distracted, so that he [would] not discоver what [was] obvious ....’” Bertrand, supra at 611-612, quoting 2 Restatement Torts, 2d, § 343A, p 220. However, he did not come forward with sufficient evidence to meet this burden. Plaintiff has failed to create a genuine factual dispute with respect to whether defendants knew or should have known that his attention would be distracted away from the open and obvious danger.
Citing
O’Donnell v Garasic,
*720
We recognize that code violations may provide some evidence of negligence.
Id.
at 578; see also
Summers v Detroit,
As discussed above, there is nothing unusual about crushed grapes on a supermarket floor that would create an unreasonably high risk of harm. Accordingly, given the evidence presented in this case, reasonable minds could not conclude that the slipping hazard created by the crushed grapes or grape residue on defendants’ floor was unreasonably dangerous. Plaintiffs reliance on defendants’ alleged code violation is unavailing.
Finally, plaintiff argues that even if the crushed grapes and grape residue were open and obvious, defendants breached a separate and distinct duly imposed by the Michigan Occupational Safety and Health Aсt (MIOSHA), MCL 408.1001 et seq. Therefore, plaintiff argues that the open and obvious danger doctrine does not apply. Again, we disagree.
It is true that “the applicability of the open and obvious danger doctrine depends on the theory underlying the negligence action.”
Hiner v Mojica,
Plaintiff contends that defendants breached the duty to provide a safe workplace as required by § 9 of MIOSHA, MCL 408.1009, and by administrative regulations enactеd under MIOSHA. In Michigan, the violation of a statute creates a rebuttable presumption of negligence, and the violation of an administrative regulation constitutes evidence of negligence.
Candelaria v B C Gen Contractors, Inc,
*722
Even viewing the evidence in the light most favorable to plaintiff, no record could be developed on which reasonable minds could differ regarding defendants’ duty in this case. The crushed grapes on which plaintiff slipped were open and obvious as a matter of law, and plaintiff has not sufficiently supported his claims that the open and obvious danger doctrine should not apply. The trial court properly granted summary disposition in favor of defendants pursuant to MCR 2.116(0(10). See
Spagnuolo v Rudds #2, Inc,
Affirmed.
Notes
Neither the record nor the briefs contain any indication that the International Property Maintenance Code had been adopted by the municipality where plaintiffs accident occurred. Likewise, we find no support for plaintiffs assertion that a violation of the International Property Maintenance Code is equivalent to a violation of state statute. Nonetheless, we will address plaintiffs code-based arguments for purposes of this appeal.
We also note that MIOSHA does not provide an independent tort remedy.
White v Chrysler Corp,