Thomas Sokolowski v. Meijer Inc ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
THOMAS SOKOLOWSKI, UNPUBLISHED
February 10, 2022
Plaintiff-Appellant,
v No. 356776
Ionia Circuit Court
MEIJER, INC., LC No. 2020-034401-NO
Defendant-Appellee.
Before: BORRELLO, P.J., and M. J. KELLY and REDFORD, JJ.
PER CURIAM.
In this premises liability action, plaintiff, Thomas Sokolowski, appeals by right the trial
court’s order granting defendant’s motion for summary disposition under MCR 2.116(C)(10). For
the reasons stated in this opinion, we affirm.
I. BASIC FACTS
On January 13, 2020, Sokolowski entered a public bathroom inside of a Meijer gas station.
The lights were on and, as he entered, he was looking at the floor. He testified that after taking a
couple of steps into the room, he stepped on something hard, slipped, and fell. When he got up,
he saw a AAA battery on the floor. He added that the battery was “obvious” and was the only
item on the floor; however, he stated that he had not seen it before he fell. As a result of his fall,
Sokolowski sustained several injuries, including a herniated disc.
On June 30, 2020, Sokolowski filed a complaint against defendant. He alleged both a
premises-liability claim and a claim sounding in ordinary negligence. Relevant to this appeal,
defendant moved for summary disposition under MCR 2.116(C)(10). Following oral argument,
the trial court granted the motion.
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II. SUMMARY DISPOSITION
A. STANDARD OF REVIEW
Sokolowski argues that the trial court erred by granting summary disposition. “This Court
reviews a trial court’s ruling on a motion for summary disposition de novo.” Pugno v Blue Harvest
Farms LLC, 326 Mich App 1, 11; 930 NW2d 393 (2018).
B. ANALYSIS
1. NATURE OF THE CLAIM
Sokolowski contends that the trial court erred by dismissing his ordinary negligence claim.
There is a difference “between claims arising from ordinary negligence and claims premised on a
condition of the land.” Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 692; 822
NW2d 254 (2012). In a premises-liability claim, “liability arises solely from the defendant’s duty
as an owner, possessor, or occupier of land.” Id. In contrast, an ordinary negligence claim is
grounded on the underlying premise that a person has a duty to conform his or her conduct to an
applicable standard of care when undertaking an activity. Laier v Kitchen, 266 Mich App 482,
493; 702 NW2d 199 (2005) (opinion by NEFF, J.). “If the plaintiff’s injury arose from an allegedly
dangerous condition on the land, the action sounds in premises liability rather than ordinary
negligence; this is true even when the plaintiff alleges that the premises possessor created the
condition giving rise to the plaintiff’s injury.” Buhalis, 296 Mich App at 692. Here, there is no
evidence suggesting that defendant’s conduct (or the conduct of its agents), rather than a condition
on the land, was the basis of liability. As a result, Sokolowski’s claim sounds solely in premises
liability, and there is no merit to his argument that the trial court erred by dismissing what he
labeled as an ordinary-negligence claim. See Adams v Adams (On Reconsideration), 276 Mich
App 704, 710-711; 742 NW2d 399 (2007) (“It is well settled that the gravamen of an action is
determined by reading the complaint as a whole, and by looking beyond mere procedural labels to
determine the exact nature of the claim.”).
2. OPEN AND OBVIOUS
Next, Sokolowski argues that the trial court erred by determining that the AAA battery was
an open and obvious hazard.
Sokolowski was an invitee at the Meijer gas station because he was there to purchase
gasoline. See Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 597; 614 NW2d 88 (2000)
(stating that “invitee status is commonly afforded to persons entering upon the property of another
for business purposes”). “In general, a premises possessor owes a duty to an invitee to 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, this duty does not generally encompass removal of open and obvious dangers[.]” Id.The premises possessor “owes no duty to protect or warn of dangers that are open and obvious
because such dangers, by their nature, apprise an invitee of the potential hazard, which the invitee
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may then take reasonable measures to avoid.” Hoffner v Lanctoe, 492 Mich 450, 461; 821 NW2d
88 (2012) (quotation marks and citation omitted).
“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. “This is an objective standard, calling for an examination of the ‘objective nature of the
condition of the premises at issue.’ ” Id., quoting Lugo, 464 Mich at 517. “Because the test is
objective, this Court looks not to whether a particular plaintiff should have known that the
condition was hazardous, but to whether a reasonable person in his or her position would have
foreseen the danger.” Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich App 710, 713; 737
NW2d 179 (2007).
In this case, Sokolowski stresses that he did not see the battery before he fell despite the
facts that the lights were on and he looked at the floor as he entered the room. Yet, it is of no
consequence that he did not first observe the battery before he fell because the test is an objective
one. Lugo, 464 Mich at 524. Instead, it is telling that once he fell and looked around, the battery
was the only object on the floor, and it was, in Sokolowski’s words, “obvious.” Indeed, the record
is devoid of evidence indicating that the battery was inconspicuous. For example, there is no
evidence that the battery and the floor were of a non-contrasting color or pattern, nor is there any
indication that the battery was covered or otherwise obscured by any other object. Because
Sokolowski’s testimony establishes that the battery on the floor was obvious to someone looking
at the floor, the trial court did not err by determining that the hazard posed by the battery was an
open and obvious danger.
Sokolowski next argues that, even if the hazard posed by the battery was open and obvious,
the open-and-obvious doctrine does not bar his claim because there are “special aspects” of the
condition. Specifically, he asserts that the hazard posed by the battery was an unreasonably
dangerous condition. “[I]f special aspects of a condition make even an open and obvious risk
unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to
protect invitees from that risk.” Lugo, 464 Mich at 517. In order for the special-aspects exception
to the open and obvious danger doctrine to apply, the condition must be either effectively
unavoidable or unreasonably dangerous, meaning it imposes an unreasonably high risk of severe
harm or death. Kennedy, 274 Mich App at 716. An unreasonably dangerous hazard is a hazard
that is 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.
Here, Sokolowski asserts that the battery is unreasonably dangerous because he sustained a serious
injury when he slipped on it and because other people who might have slipped on it could have
also received similar injuries or, in the case of elderly people, someone might have been more
severely injured. However, his evidence does not show that there is an unreasonably high risk of
severe harm or death. See Kennedy, 274 Mich App at 716. Rather, he can only show that the
condition is theoretically or retrospectively dangerous, which, as explained by the Hoffner Court
is insufficient. See Hoffner, 492 Mich at 472.
3. RES IPSA LOQUITOR
Sokolowski next contends that summary disposition was improper because negligence can
be inferred under the doctrine of res ipsa loquitor. However, that doctrine requires that the event
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“must be caused by an agency or instrumentality within the exclusive control of the Defendant.”
Pugno, 326 Mich App at 19 (quotation marks and citation omitted). Here, Sokolowski was injured
in a public restroom by a battery that was not in the exclusive control of defendant. As a result,
the doctrine is inapplicable under the circumstances of this case.
4. NOTICE
Sokolowski argues that, because defendant was the moving party, he had no obligation to
prove that defendant had actual or constructive notice of the dangerous condition. However,
although a premises possessor breaches its duty of care to an invitee “when it knows or should
know of a dangerous condition on the premises of which the invitee is unaware and fails to fix the
defect, guard against the defect, or warn the invitee of the defect,” the burden is on the plaintiff to
demonstrate that “the premises possessor had actual or constructive notice of the dangerous
condition at issue.” Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 8; 890 NW2d 344 (2016)
(quotation marks and citation omitted). And, on a motion for summary disposition, a defendant
may prevail by “demonstrating that plaintiff failed to present sufficient evidence of notice.” Id.
at 10.
5. DISCOVERY
Next, Sokolowski argues that the trial court committed an error requiring reversal by the
granting summary disposition before discovery was completed. “Generally, a motion for summary
disposition is premature if granted before discovery on a disputed issue is complete. However,
summary disposition may nevertheless be appropriate if additional discovery does not stand a
reasonable chance of uncovering factual support for the opposing party’s position.” Bodnar v St
John Providence, Inc, 327 Mich App 203, 231; 933 NW2d 363 (2019) (quotation marks and
citation omitted). A party alleging that summary disposition was premature must “clearly identify
the disputed issue for which it asserts discovery must be conducted and support the issue with
independent evidence.” Powell-Murphy v Revitalizing Auto Communities Envtl Response Tr, 333
Mich App 234, 253; 964 NW2d 50 (2020). “The dispositive inquiry is whether further discovery
presents a fair likelihood of uncovering factual support for the party’s position.” Id. (quotation
marks and citation omitted).
Sokolowski asserts that defendant’s motion for summary disposition was premature
because he did not have the opportunity to depose any of defendant’s representatives. However,
Sokolowski does not explain how additional discovery would uncover factual support for his
position. Because he has not shown that additional discovery would have a fair likelihood of
uncovering factual support for his position, the trial court did not err by granting summary
disposition before discovery could be completed.
6. PUBLIC POLICY
Finally, Sokolowski argues the grant of summary disposition in this case is against public
policy because it dissuades businesses from performing routine inspections of their premises. This
argument is misplaced. A premises possessor has a duty “to make the premises safe, which
requires the landowner to inspect the premises and depending upon the circumstances, make any
necessary repairs or warn of any discovered hazards.” Lowrey, 500 Mich at 10 n 2; see also Albitus
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v Greektown Casino, LLC, ___ Mich App ___, ___; ___ NW2d ___ (2021) (Docket No. 356188);
slip op at 3 (stating that “the duty of premises owners to inspect for dangers on behalf of invitees
is a longstanding principle of Michigan law.”). The mere fact that Sokolowski has presented no
evidence that defendant breached that duty in this case does not mean that in future cases business
owners will neglect their duty to inspect. As a result, Sokolowski’s public policy argument is
without merit.
Affirmed. Defendant may tax costs as the prevailing party. MCR 7.219(A).
/s/ Stephen L. Borrello
/s/ Michael J. Kelly
/s/ James Robert Redford
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