Sharon Debano v. McCarthy & Smith Inc ( 2023 )

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
SHARON DEBANO, UNPUBLISHED
June 22, 2023
Plaintiff-Appellant,
v No. 362766
St. Clair Circuit Court
MCCARTHY & SMITH, INC., LC No. 20-000694-NO
Defendant,
and
FLOORING EDGE and LANSING CARPENTER,
Defendants-Appellees.
Before: SWARTZLE, P.J., and CAVANAGH and LETICA, JJ.
PER CURIAM.
Flooring Edge and Lansing Carpenter were contracted to do some construction work on
the hallway floors of Keewahdin Elementary School. Plaintiff was a teacher at Keewahdin, and
she slipped and fell on glue that had been spread on the hallway floor to repair it. The trial court
granted Flooring Edge and Lansing Carpenter summary disposition. We affirm.
Plaintiff was walking in the hallway when her foot abruptly became stuck on wet glue that
was placed on the hallway floor by Flooring Edge and Lansing Carpenter. As a result, plaintiff
fell and severely injured her right arm and wrist. Plaintiff alleged that Flooring Edge and Lansing
Carpenter were liable for her injuries because of their ordinary negligence.
During her deposition, plaintiff testified that she received an email from Keewahdin that
informed her that construction was going to be occurring on the hallway floors. Plaintiff stated
that she did not see the glue on the floor, and the hallway was not sectioned off with any warning.
In contrast, Shayne Carpenter, an employee who was working on the flooring, testified during his
deposition that the glue was a dark grey when it was wet and applied to the floor, and it was easy
to see in contrast to the floor. Further, Shayne removed the caution tape around the glue because
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the Fire Marshal needed to come through the hallway, but he stated that the caution tape was still
on the wall leading into the hallway.
Lansing Carpenter moved for summary disposition under MCR 2.116(C)(10), concurred
with by Flooring Edge, and argued that plaintiff’s claim sounded in premises liability, not ordinary
negligence, because plaintiff alleged that the hazardous conditions of the hallway caused her fall.
Accordingly, Lansing Carpenter argued that he did not have possession and control of the premises
to be liable, and that in the alternative the hazard was open and obvious. In conjunction with the
motion, Lansing Carpenter attached a photo of the hallway that demonstrated that there were signs
of construction work in the vicinity of the glue, including warning tape and stacks of tiles, and that
the glue was a noticeably darker color than the floor.
The trial court agreed that plaintiff’s claim sounded in premises liability because it occurred
as a condition of the land, and plaintiff had admitted that neither Lansing Carpenter nor Flooring
Edge had possession of the premises. The trial court then granted Lansing Carpenter and Flooring
Edge summary disposition.
Plaintiff now appeals.
“We review de novo a trial court’s decision to grant or deny a motion for summary
disposition.” Sherman v City of St Joseph, 332 Mich App 626, 632; 957 NW2d 838 (2020)
(cleaned up). This Court reviews a motion brought under MCR 2.116(C)(10) “by considering the
pleadings, admissions, and other evidence submitted by the parties in the light most favorable to
the nonmoving party.” Patrick v Turkelson, 322 Mich App 595, 605; 913 NW2d 369 (2018).
“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.” Sherman, 332 Mich App at 632.
Plaintiff’s claim is based on an injury she received from a condition of the property—
namely the wet glue that was on the floor. “A claim based on the condition of the premises is a
premises liability claim.” Finazzo v Fire Equip Co, 323 Mich App 620, 626; 918 NW2d 200(2018) (citation omitted). “Because plaintiff’s injury arose from an allegedly dangerous condition
on the land, [her] 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.” Id. (cleaned up). For a party to be subject to premises liability, that party must
possess and control the property at issue but not necessarily be its owner. Id. at 627.
This Court explained in Finazzo that “contractors performing changes to the property by
methods that were under defendants’ control, were also best able to prevent any harm to others.”
Id. at 629-630 (cleaned up). “So, it is appropriate to impose premises liability on defendants with
respect to the work they controlled relating to changing the premises.” Id. at 630 (cleaned up).
Plaintiff repeatedly concedes, however, that neither Flooring Edge nor Lansing Carpenter
were premises possessors in this case. Instead, even on appeal, plaintiff argues that Port Huron
Public Schools owned the property where plaintiff fell, and it was the premises possessor instead.
By conceding that neither Flooring Edge nor Lansing Carpenter were a possessor of the premises,
plaintiff has failed to create a genuine issue of material fact that would subject Flooring Edge or
Lansing Carpenter to premises liability.
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Nevertheless, the hazard in this case was also open and obvious. The open and obvious
doctrine generally shields premises possessors from liability where the harm is caused by a
condition on the land that was open and obvious. Id. at 626. “A condition of the land is open and
obvious when it is reasonable to expect that an average person with ordinary intelligence would
have discovered it upon casual inspection.” Id. (cleaned up). In this case, the glue was open and
obvious because it was a different color, when wet, than the surrounding floor. There were also
signs of construction work in the vicinity of the glue, including warning tape and stacks of tiles.
Additionally, plaintiff testified that she knew that construction work was going on. Thus, even if
Flooring Edge and Lansing Carpenter are considered premises possessors for the purposes of being
subject to premises liability, the hazard was open and obvious such that it shields them from that
premises liability in this case.
Assuming for argument’s sake that plaintiff’s claim sounded in ordinary negligence,
plaintiff still did not establish a prima facie case for Flooring Edge or Lansing Carpenter’s liability.
“Contractors have a common-law duty to perform their work with ordinary care so as not to
unreasonably endanger employees of other subcontractors or anyone else lawfully on the
worksite.” Id. at 634. “To establish a prima facie case of negligence, plaintiff must prove four
elements: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation,
and (4) damages.” Id. at 635 (citation omitted).
As this Court explained, the “general duty of a contractor to act so as not to unreasonably
endanger the well-being of employees of either subcontractors of inspectors, or anyone else
lawfully on the site of the project, is well settled.” Id. (cleaned up). In this case, plaintiff was
warned of a known and observable hazard that would be temporarily on the floor. Thus, for many
of the same reasons that the glue on the floor was an open and obvious hazard, neither Flooring
Edge nor Lansing Carpenter breached a general duty to perform work “so as not to unreasonably
endanger the well-being of…anyone else lawfully on the site of the project.” Id. at 637 (cleaned
up).
Therefore, the trial court did not err when it granted Flooring Edge and Lansing Carpenter
summary disposition under MCR 2.116(C)(10).
Affirmed. Flooring Edge and Lansing Carpenter, as the prevailing parties, may tax costs
under MCR 7.219.
/s/ Brock A. Swartzle
/s/ Mark J. Cavanagh
/s/ Anica Letica
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