STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL DAVIS, UNPUBLISHED
September 22, 2016
Plaintiff-Appellant,
and
RAQUEL DAVIS,
Plaintiff,
v No. 329092
Allegan Circuit Court
JEFFREY LENHART, LC No. 14-053719-NO
Defendant-Appellee.
Before: SERVITTO, P.J., and MARKEY and GLEICHER, JJ.
PER CURIAM.
Michael Davis fell and broke his leg while trying to avoid flowing water funneling down
a sloped exit path from a haunted corn maze. The circuit court summarily dismissed Davis’s
premises liability claim, finding the condition open and obvious. In doing so, the circuit court
rejected evidence that maze employees directed Davis onto the path as the means to exit the
maze, creating a question of fact whether the condition was effectively unavoidable. We vacate
the circuit court’s summary disposition order and remand for continued proceedings.
I. BACKGROUND
At some point between 10:00 and 11:00 p.m. on October 12, 2013, Michael Davis went
with his wife, Raquel Davis, and four others to the Witches of New Salem haunted corn maze in
Dorr Township. (M Davis Dep, pp 9-10, 22.) The corn maze runs from late September through
Halloween on farmland owned and operated by Jeffrey Lenhart. (Lenhart Dep, p 5.) The
haunted corn maze was designed to be very dark and scary. As noted on
(accessed July 20, 2016): “Every night is filled with
screams at the New Salem Corn Maze!” As described by its owner, “there will be scenes that’ll
have lights or strobe lights,” but “[t]he general maze to walk through, no lights.” (Lenhart Dep,
p 25.) Participants may use a flashlight and may even purchase one on site (Lenhart Dep, p 25;
Osterhout Dep, p 22), but Davis did not do so on the night in question. (R Davis Dep, p 7.)
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When Davis arrived at the corn maze, the weather was dry. (M Davis Dep, p 11.) No
signs warned patrons about the terrain inside the maze, and neither did the scripted speech given
by the tractor driver who transported customers to the start of the maze. (Lenhart Dep, p 13; M
Davis Dep, pp 10, 16; Osterhout Dep, pp 22-23.) While waiting in line to enter the maze, “it
began to sprinkle.” (M Davis Dep, p 17.) About 30 minutes after Davis arrived, it started to rain
and soon became “a downpour.” (M Davis Dep, p 21.) Approximately 45 minutes in, Davis
“[s]lipped on an incline on the mud in the corn stalks” and “fell on [his] butt.” (M Davis Dep, pp
21, 28.) Davis’s friends also had trouble maintaining their footing. (M Davis Dep, pp 22-23; R
Davis Dep, p 8.) Another 15 to 20 minutes later (M Davis Dep, pp 21, 28), Davis described:
We came upon an area where there was actually flowing water through the way
we were heading. I went to step over that water, I lost my footing and I fell down.
I went to stand up, my other leg slid and then I fell down again with my leg still
caught. And I came down with all my weight with my leg twisted and broke my
[right] leg. [M Davis Dep, p 29.]
Davis later recalled, “The left-hand path was kind of up and over and the area where I needed to
step over was flowing water . . . . The water was funneling down towards a washout.” (M Davis
Dep, p 48.) Davis claimed that he tried to step over the flowing water to get to the connecting
path. (M Davis Dep, pp 48-50.)
According to Davis, as the rain grew heavier, “everybody was just trying to find their
way out.” (M Davis Dep, p 23.) Davis knew of no means to “escape” the maze, there were no
signs leading to emergency exits, and Davis believed he had to trudge through to the maze’s end.
(M Davis Dep, pp 24-25.)
Lenhart admitted that the ground in the corn maze can be slippery. The soil in the field
used for the maze is “higher, gravelly or sandier soil” than in his other fields. (Lenhart Dep, p
22.) Lenhart periodically lays down straw or wood bark to “help[] dry it up,” but the soil
eventually “gets slipperier because of people traffic . . . .” (Lenhart Dep, p 23.) Lenhart denied
that the soil was “gumbo clay, greasy, slippery like you’re thinking that it is.” (Lenhart Dep, pp
22-23.) Shortly before Davis’s fall, Lenhart’s staff decided to close down the section of the
maze housing the injury locus because it was getting too muddy. (Lenhart Dep, p 29; Belanger
Dep, pp 11, 13.) Lenhart described that the closed area is “down the hill” and “[w]ater runs
downhill.” The “hill,” however, was really “a gentle slope.” (Lenhart Dep, p 32; Osterhout Dep,
p 11.) While Davis and his wife contended that a rivulet of water ran through the area, corn
maze employee Brian Belanger described the ground at the point of Davis’s fall as “slick like a
wet soccer field that got muddy in a corner.” (Belanger Dep, p 14.)
To close off the subject section of the maze, employees were positioned to divert patrons
onto a different path. However, there were “already people in it,” including Davis’s party.
(Lenhart Dep, p 29; Belanger Dep, pp 11, 13.) Davis claimed that when he and his party first
entered the maze, employees dressed in costume were everywhere. (M Davis Dep, p 23.)
“[W]hen it started raining,” however, “they just vanished.” (M Davis Dep, p 24.) Mrs. Davis
described it as “a no-man land.” (R Davis Dep, p 11.) Given the absence of visible employees,
Davis did not contemplate “yelling for help” to find his way out. (M Davis Dep, p 27.) Mrs.
Davis recalled that there was an employee directing people to the left toward the exit at the
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intersection of Davis’s fall. (R Davis Dep, p 12.) Mrs. Davis claimed that the employee ignored
them before her husband’s fall, because he was assisting an intoxicated customer. (R Davis Dep,
pp 12-13.) And Davis denied that anyone warned them to watch their step in this area. (M
Davis Dep, p 48.) Lenhart and his employees contradicted this testimony, asserting that an
employee held Mrs. Davis’s hand as she crossed the muddy area and offered the same assistance
to Davis, who declined. (Belanger Dep, p 13; Lenhart Dep, p 29; Probst Dep, p 11.)
Lenhart’s employees admitted that they directed people out of the maze and onto the very
path where Davis was injured. Specifically, Balenger testified that he “set up . . . two spots” to
divert traffic. (Belanger Dep, p 11.) The area below Balenger’s post “was being closed down”
and “[t]he area above me, it was where we were diverting people through.” (Belanger Dep, pp
11-12.) At that point, several paths converged. Belanger directed people down “the exit path.”
(Belanger Dep, p 12.) “All the other ones were dead ends,” Belanger asserted, “so that’s why we
were assisting people down this path.” (Id.) Belanger continued that “[t]here was only one area”
to divert people from the closed-off area. (Belanger Dep, p 13.) And Belanger remembered
directing Davis and his party along that route. (Id.)
Davis filed his premises liability action on July 18, 2014. (Complaint.)1 Davis alleged
that Lenhart had a duty to maintain his premises in a manner to prevent injury, including by
employing “reasonable measures to prevent and remedy the hazards posed by defects where
invitees may traverse.” (Complaint, pp 2-3.) Davis averred that Lenhart was required “to have
in place adequate measures for responding to such conditions.” (Complaint, p 3.) Davis further
contended that the condition that caused his fall was neither open nor obvious. (Id.) Davis took
issue with Lenhart’s failure to warn of the maze’s condition and his design of defective trails
within the maze. (Complaint, p 4.)
Following discovery, Lenhart sought summary dismissal of Davis’s claim under MCR
2.116(C)(10). (Defendant Jeffrey Lenhart’s, d/b/a Witches of New Salem, Motion for Summary
Disposition, June 12, 2015.) Lenhart argued that the conditions within the maze were open and
obvious and were natural and expected. In relation to lighting, Lenhart argued that the very
nature of a “haunted” corn maze required little to no light. To achieve the haunted effect, the
maze was open only after dark and “lighting remained intentionally low.” Patrons were warned
of the low lighting and informed that they could use flashlights. (Brief in Support, p 2.) Lenhart
continued:
Based on the very nature of a corn maze located on farmland, patrons,
including Davis, knew that they would be traversing dirt paths, on ground of
varying elevation and topography, in between tall rows of corn, and in low
lighting at night. Moreover, the entire purpose of a corn maze is to allow
individuals to enter at one location, between tall rows of corn that limit your
vision and perspective, in order for those individuals to navigate their way out of
the maze. Thus, individuals enter with the knowledge that they could be
1
Mrs. Davis filed a derivative action that is not at issue in this appeal
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“trapped” or “lost” in the maze—this is of course the supposed attraction of a corn
maze. [Brief in Support, pp 4-5.]
Lenhart contended that a reasonable person would understand that the dirt ground would become
muddy in the rain. (Brief in Support, p 5.) He thereby urged that every condition complained of
by Davis was open and obvious, negating any liability on his part. (Id.)
In relation to the “washout” that Davis crossed, Lenhart argued that the condition was
open and obvious given that Davis testified that he saw it. (Brief in Support, p 6.) That
conditions were ripe for a slip and fall in such a muddy area during a rainstorm was also easily
ascertainable. (Brief in Support, p 5.)
Lenhart contended that no special aspect removed the muddy condition in the corn maze
from the open and obvious doctrine. The area where Davis fell was not “unavoidable.”
Although Davis claimed that he felt “trapped” in the maze, he could have turned around and
gone back the way he came or chosen a different path at the intersection. (Brief in Support, pp
7-8.) Lenhart made no argument in relation to the other strand of special aspect cases—those
where the condition presents a uniquely high likelihood and severity of harm.
Davis challenged Lenhart’s summary disposition motion. He first posited that he was
completely unfamiliar with the general nature of corn mazes as this was his first visit to such an
attraction. (Plaintiff’s Response to Defendant’s Motion For Summary Disposition and Plaintiff’s
Counter Motion for Summary Disposition, July 6, 2015, p 3.) Moreover, when Davis’s party
entered the maze, the ground was dry and no employee gave any instruction beyond forbidding
alcoholic beverages inside the maze. (Id.) Once it started raining, as conceded by Lenhart, the
ground became slippery. And just when employee assistance was required to safely and quickly
navigate out of the maze, all employees disappeared, essentially trapping the patrons inside.
(Plaintiff’s Response, p 4.) Davis conceded that he observed the employee described by Lenhart
and his witnesses who was tasked with redirecting patrons from the closed part of the maze.
However, Davis accused, that employee ignored his party and assisted only an intoxicated
patron. (Plaintiff’s Response, p 5.)
Davis further contended that Lenhart admitted the design flaws that caused Davis’s
injuries. Davis emphasized, but misinterpreted, Lenhart’s deposition testimony “that the corn
maze is on a gravellier, sandier soil which is like clay and gets ‘greasy, slippery.’ ” Lenhart was
aware that part of the maze was carved out in a lower area and that water would pool there when
it rained. (Plaintiff’s Response, pp 5-6.)
Davis summarized his allegations as addressing the design and construction of the maze,
the failure to warn patrons of the danger posed when the maze becomes wet, and the failure to
provide “a safe means of egress from the maze in the event conditions change.” (Plaintiff’s
Response, p 7.) He contended that summary disposition of these claims in Lenhart’s favor was
inappropriate because the conditions were not open and obvious. Davis described the dangers as
“hidden” and asserted that Lenhart was aware of the nature and location of these secret traps.
(Plaintiff’s Response, p 8.) He further urged that the lack of lighting and absence of safe,
alternative means of egress were special aspects. (Plaintiff’s Response, p 9.) Davis “had no
choice but to walk in the muddy, slippery area where he fell as he had no other means of egress
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from the corn maze.” (Plaintiff’s Response, p 10.) And “where a dangerous condition is
obscured by darkness, it is plainly not ‘obvious’.” (Plaintiff’s Response, p 11.) As such, Lenhart
could not hide behind the open and obvious defense. (Plaintiff’s Response, p 12.)
The court heard the parties’ arguments on July 13, 2015. At the hearing, Lenhart’s
counsel summarized his understanding of Davis’s complaint:
What they’re saying here is that [1] it’s low lighting, well it’s a haunted maze, it’s
going to have low lighting, has to be at dark; [2] it’s in a cornfield, so unless
you’re setting up the corn stalks in the middle of the parking lot normally it’s
going to be on muddy ground with varying levels of topography and terrain; and
[3] then we’re also talking about the time of year. It’s fall. Fall in Michigan
involves precipitation. [H, p 5.]
In response to Davis’s complaint about the length of time he roamed without assistance, unable
to find an exit, counsel iterated, “the whole point of [corn mazes] is to get lost in there.” (H, p
8.) If you added lighting, the attraction would no longer be a haunted maze. If you had to
remove mud from the equation, the attraction no longer could be built in a cornfield. Removing
the “dangerous” conditions, removed the attraction all together. (H, p 5.) That the nature of a
maze is to confuse and distort, does not render the condition “unavoidable” either. (H, p 8.)
Lenhart also did not create the hazard, counsel argued. Although “[h]e intended to build a maze,
and a maze in a corn field is going to have hills,” that is “just the nature of the land.” (H, p 12.)
Defense counsel further noted that Davis approached his retort subjectively—what he as a first
time visitor should know—when the standard is objective. (H, p 6.) The court inquired of
Lenhart’s counsel why he had not raised assumption of risk in the summary disposition motion.
Counsel indicated that the defense “would necessarily implicate” facts that were in dispute. (H,
p 15.)
During Davis’s rebuttal, the court queried whether Davis had the option to stand still until
the rain passed or until assistance came. Plaintiff’s counsel responded that this was not a
reasonable course of action because Davis and his party had not seen an employee for an
extended period. (H, p 22.) The court further questioned why Davis did not cut through the corn
rows and make his own exit. (H, pp 23-24.) Counsel again opined that such action would have
been unreasonable given that Davis did not know the lay of the farmland and could have ended
up in the middle of the back fields. (H, p 25.) The more reasonable option, counsel argued, was
for Lenhart and his employees to take action: “Turn on some kind of lights, get on a loud speaker
and say stay where you are we’re going to come find you and get you out of here. We’re going
to bring flashlights out to you people so you can get out safer or easier.” (H, p 24.)
Ultimately, the circuit court ruled in Lenhart’s favor and dismissed Davis’s lawsuit. The
court noted, “In this case the open and obvious danger doctrine is invoked as the impetus for
summary disposition.” Exceptions to the doctrine, explained the court, “include the presentation
to the injured person of a route which makes encountering the risk and transversing [sic] the risk
or engaging with the risk effectively unavoidable, or that the risk proposes a substantial risk of
death or serious injury or uniquely high severity of harm.” (H, p 32.) In relation to the current
case, the court could not “rule out that some corn mazes, if they led to a 30 foot pit that’s going
to absorb in a dead fall some of those unfortunate corn maze travelers who misstep in the dark, I
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would find that (inaudible) and not at all comical.” In this case, however, the court did not
“actually find the risk [Davis] encountered effectively unavoidable” and “while it pose[d] some
risk of injury,” the court discerned no “risk of death or serious injury or very severe injury.” (H,
p 33.) In this regard, the court refused to use hindsight to deem the maze unreasonably
dangerous simply because Davis was injured. (H, p 34.)
The court then considered the evidence presented by Davis. First, the court recited
Davis’s admission “that he saw the water he encountered.” The court reasoned that Davis “had
the option to turn around and go out the other way even though that might have been a longer
trip and it would have taken more time and it would have been uncomfortable because it was
raining” and acknowledged that such a route “would have had its own risk” and Davis’s safety
could not have been “perfectly assured.” (H, p 34.) The court continued that Davis could have
“walk[ed] through the corn field knocking down stalks.” (Id.) In the court’s estimation, that
would have been “an objectively reasonable measure that other objectively reasonable people
would have taken.” (H, pp 34-35.) That Davis had already fallen once “play[ed] a role in
addressing objectiveness and reasonableness in this context because having fallen he’s on alert to
the risk of falling,” the court noted. With this knowledge, “an objectively reasonable assessment
of risk would have moved the plaintiff at that point to leave the maze, or cry for help when [sic]
employees, if they were around.” Moreover, the court asserted, “it was always an option to just
stand pat and be soaked and maybe annoyed or aggravated but not encounter any risks.” The
court also acknowledged that the maze was dark and the ground slanted. Although the risk was
“intensified by darkness and some degree of incline,” the court determined that “the incline was
not so radical as I can establish here to present a chute or a ditch similar to the 30 foot ditch
mentioned in another precedent.” (H, p 35.)
The court proceeded to reason that the dangers faced by Davis are innate to a corn maze.
[B]y its very nature a corn maze has to provide some degree of unfamiliarity with
the exact terrain. You’re not given a topographical map. . . . That’s by very
nature of a corn maze part of the excitement and the challenge of that enterprise.
If we reduce every land used for recreational purposes to some artificially
sanitized and maneuvered territory that the land owner actively combs to give a
perfectly flat well lighted surface, we won’t have corn mazes, we won’t have
haunted houses, we won’t have challenging circumstances, and challenging
circumstances is exactly what brings the objective and reasonable public to this
kind of an enterprise. In fact one could say even though well lighted, that’s what
brings people out to a golf course when they don’t have the skills to really play a
high degree of professional golf, they’re out there for the challenge and the beauty
and the uphill/down dale through sand and marshy territory and so on. There’s
some limited amount of comparison between a golf course in broad daylight.
Certainly the darkness here added something to the risk.
It isn’t the darkness itself that’s the problem. It’s the land owner’s failure
to put up towering lights he can trigger at a switch or anybody in the maze can
trigger, but if they had that capability one person out in the maze would turn off
the entertainment for everybody else by hitting the alarm switch or the light bath
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switch similar to a fire alarm. Again, a corn maze can’t be operated under those
circumstances, it’s very nature would be compromised and destroyed by that. [H,
pp 36-37.]
Accordingly, the court determined that the particular dangers posed to Davis in the haunted corn
maze were open and obvious and were neither effectively unavoidable nor unreasonably risky.
(H, p 37.) The circuit court therefore dismissed Davis’s suit.
II. ANALYSIS
We review a trial court’s decision on a motion for summary disposition de
novo. Wayne Co v Wayne Co Retirement Comm,
267 Mich App 230, 243; 704
NW2d 117 (2005). . . .
A motion under MCR 2.116(C)(10) “tests the factual support of a
plaintiff’s claim.” Walsh v Taylor,
263 Mich App 618, 621; 689 NW2d 506
(2004). “Summary disposition is appropriate . . . if there is no genuine issue
regarding any material fact and the moving party is entitled to judgment as a
matter of law.” West v Gen Motors Corp,
469 Mich 177, 183; 665 NW2d 468
(2003). “In reviewing a motion under MCR 2.116(C)(10), this Court considers
the pleadings, admissions, affidavits, and other relevant documentary evidence of
record in the light most favorable to the nonmoving party to determine whether
any genuine issue of material fact exists to warrant a trial.” Walsh, 263 Mich App
at 621. “A genuine issue of material fact exists when the record, giving the
benefit of reasonable doubt to the opposing party, leaves open an issue upon
which reasonable minds might differ.” West, 469 Mich at 183. [Zaher v Miotke,
300 Mich App 132, 139-140; 832 NW2d 266 (2013).]
Davis’s claim sounds in premises liability. Davis, as a paying customer, was an invitee
on Lenhart’s land.
[A] landowner owes a duty to use reasonable care to protect invitees from
unreasonable risks of harm posed by dangerous conditions on the owner’s land.
Michigan law provides liability for a breach of this duty of ordinary care when the
premises possessor 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. [Hoffner v Lanctoe,
492 Mich 450,
460; 821 NW2d 88 (2012).]
A landowner bears no duty to warn or to protect invitees from dangers that are open and obvious,
however. Id. at 460-461. “Perfection is neither practicable nor required by the law,” and
“[u]nder ordinary circumstances, the overriding public policy of encouraging people to take
reasonable care for their own safety precludes imposing a duty on the possessor of land to make
ordinary [conditions] ‘foolproof.’ ” Id. at 460. In determining whether a condition is open and
obvious, a court must ask “whether it is reasonable to expect that an average person with
ordinary intelligence would have discovered it upon casual inspection.” Id. at 461. This test is
completely objective. Id.
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Our Supreme Court has recognized a narrow exception to the open and obvious danger
doctrine, generally termed “special aspects.” Liability attaches “when special aspects of a
condition make even an open and obvious risk unreasonable.” Id. (emphasis in original).
Special aspects exist when the risk created by a condition on the land qualifies as
“unreasonable,” i.e., a risk that poses “a uniquely high risk of severe harm.” Id. at 461-462
(citation omitted). In this vein, “liability may be imposed only for an ‘unusual’ open and
obvious condition that is ‘unreasonably dangerous’ because it ‘present[s] an extremely high risk
of severe harm to an invitee’ in circumstances where there is ‘no sensible reason for such an
inordinate risk of severe harm to be presented.’ ” Id. (alteration in original, citation omitted).
An “effectively unavoidable” danger also falls within the ambit of a “special aspect.” Id.
at 463. An “effectively unavoidable” condition is one that is “inescapable,” or incapable of
being avoided. Id. at 468. “[T]he standard for ‘effective unavoidability’ is that a person, for all
practical purposes, must be required or compelled to confront a dangerous hazard. As a parallel
conclusion, situations in which a person has a choice whether to confront a hazard cannot truly
be unavoidable, or even effectively so.” Id. at 469 (emphasis in original). This Court has held
that a plaintiff must be “effectively trapped” by the hazard for the exception to apply. Joyce v
Rubin,
249 Mich App 231, 242; 642 NW2d 360 (2002).
The condition in this case was open and obvious. Although this is an objective test, it is
important to note that Davis testified that he saw the water funneling down the path. Indeed,
Davis actively tried to step over the water, losing his footing in the process. Davis’s observation
of the condition is strong evidence that others would perceive the water as well.
Davis makes much of the fact that the paths were dry when he first entered the maze,
suggesting that he could not have predicted how difficult traversing the maze would become.
However, it would have been acutely obvious to a person of ordinary intelligence that the base of
the corn maze was a dirt corn field. It is clearly common knowledge that rain turns dirt into mud
and that mud is slippery. Davis testified that it began to lightly rain even before he entered the
maze, and the weather only got worse as the night wore on. Similarly, it would be obvious to an
ordinary person that a corn field, like any other field, is not perfectly flat. Any expanse of
landscape has divots, ruts and slopes, rocks, differing soil textures and other obstacles. Lenhart’s
corn field slowly sloped so one end of the corn maze was slightly higher than the other. The
laws of gravity dictate that water flows downhill. Accordingly, that water would flow and pool
in the lower areas of the maze was open and obvious.
Overall, that an outdoor recreation area in a natural setting may become wet, muddy, and
slippery is simply not surprising. This Court made this very observation in relation to golf
courses. See Canady v Country Club of Lansing, unpublished opinion per curiam of the Court of
Appeals, issued November 16, 2001 (Docket No. 224699); Odisher v Snow Snake Mountain, Inc,
unpublished opinion per curiam of the Court of Appeals (Docket No. 223764).2 A reasonable
2
Although unpublished cases of this Court are not binding precedentially, they can be
instructive. Paris Meadows, Inc v City of Kentwood,
287 Mich App 136, 145 n 3; 783 NW2d
133 (2010).
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person visiting such an attraction would be mindful of the weather and the impact it would have
on the terrain.
We further discern no evidence that this condition was so dangerous as to be excepted
from the open and obvious arena. Davis contends that the darkness rendered the muddy and
slick condition of the corn maze paths unreasonably dangerous. Defense counsel aptly argues
that darkness was an integral part of this “haunted” corn maze. As reasoned by the Louisiana
Court of Appeals in Mays v Gretna Athletic Boosters, Inc, 668 So2d 1207, 1209 (La Ct App,
1996), “The very nature of a Halloween haunted house is to frighten its patrons. In order to get
the proper effect, haunted houses are dark . . . .” So too with a haunted corn maze. And
flashlights were permitted in the maze to assist patrons. Davis chose not to use one himself,
relying instead on his friends’ iPhone flashlight applications. When Davis fell, he had fallen too
far behind for those lights to be useful. (M Davis Dep, pp 30-31.) Lenhart was not to blame for
that.
Moreover, the wet, muddy condition was not unreasonably dangerous on its own. Rain
makes the ground wet and sometimes slippery; this is to be expected. Nothing about this muddy
puddle was so unique or “unusual” that it created an unreasonable risk of severe harm. See
Hoffner, 492 Mich at 461-462.
However, Davis did create a factual question whether the area of his fall was effectively
unavoidable. In this regard, Davis argues that Lenhart failed to provide a means of safe egress
and insufficient employees were available to guide visitors out of the maze when it began to rain
heavily. Davis described that he and his party were essentially trapped in the maze for over an
hour in the pouring rain, trying in vain to find their way out. The record evidence supports that
employees were present and were actively assisting corn maze visitors toward the exit.
However, the path the employees insisted visitors travel was arguably unsafe.
In Lugo v Ameritech Corp,
464 Mich 512, 518; 629 NW2d 384 (2001), the Supreme
Court illustrated an “effectively unavoidable” condition as follows: “a commercial building with
only one exit for the general public where the floor is covered with standing water. While the
condition is open and obvious, a customer wishing to exit the store must leave the store through
the water.” Consistent with Lugo, this Court held that an effectively unavoidable condition must
“trap” the plaintiff to overcome an owner’s open and obvious defense. Joyce, 249 Mich App at
242.
Here, Lenhart’s employees testified that they closed a section of the corn maze because
of the wet conditions. The employees moved to strategic locations to guide patrons out of the
maze. Employee Belanger stood at the path intersection where Davis was hurt. He directed
traffic down a path that required people to cross the subject area. Belanger even claimed to have
held Mrs. Davis’s hand as she crossed. (Belanger Dep, p 13.) Belanger directed people in this
manner “because this is the exit path. All the other ones were dead ends.” (Belanger Dep, p 12.)
Considering the evidence in the light most favorable to Davis, as we must when faced with a
(C)(10) motion, the flowing water blocked the only means of exit from the corn maze. The
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landowner’s employees sent Davis directly into the water. This is precisely the scenario
described in Lugo,
464 Mich at 518, and was more than adequate to overcome summary
disposition.3
Accordingly, we vacate the summary disposition order and remand for continued
proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Deborah A. Servitto
/s/ Jane E. Markey
/s/ Elizabeth L. Gleicher
3
Davis also contends that summary disposition was improper because Lenhart created the hazard
by designing and constructing the maze on uneven ground, ensuring that people regularly would
be required to wallow through the wet low-lying area to navigate the maze. The reality is that
Lenhart did not create the incline on the land and the incline caused the water to pool, not
Lenhart’s maze design. However, Lenhart’s employees did create a situation where patrons were
required to traverse a slick area of pooled water in order to reach safety.
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