O Arlene D Davidson v. Steve's Family Dining II 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
ARLENE D. DAVIDSON, UNPUBLISHED
December 28, 2023
Plaintiff-Appellee,
v No. 361730
Wayne Circuit Court
STEVE’S FAMILY DINING II, INC., LC No. 21-005288-NO
Defendant-Appellant.
ON REMAND
Before: K. F. KELLY, P.J., and MURRAY and SWARTZLE, JJ.
PER CURIAM.
In our prior opinion in this premises liability case, we addressed the propriety of the trial
court’s order denying defendant’s motion for summary disposition under MCR 2.116(C)(10). On
appeal, defendant argued that the trial court erred by holding that there was a genuine issue of
material fact as to whether the wet floor had special aspects that made it an effectively unavoidable
hazard. We agreed with that argument, and therefore reversed the trial court’s order and remanded
for entry of an order granting defendant’s motion for summary disposition. Plaintiff appealed to
the Supreme Court. After release of Kandil-Elsayed v F & E Oil, Inc, ___ Mich ___, ___; ___
NW2d ___ (2023) (Docket Nos. 162907 and 163430), the Supreme Court remanded this matter
back to us to reconsider plaintiff’s appeal in light of Kandil-Elsayed. We now vacate the trial
court’s order denying defendant’s motion for summary disposition and remand the matter back to
the trial court for further proceedings under the standards outlined in Kandil-Elsayed.
Prior to Kandil-Elsayed, the open and obvious danger doctrine governed the duty element
of a premises-liability claim. Hoffner v Lanctoe, 492 Mich 450, 476; 821 NW2d 88 (2012).
Generally, it was held that “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). In Kandil-
Elsayed, the Court overruled Lugo and held that “the open and obvious nature of a danger” is only
“relevant to the defendant's breach and the plaintiff's comparative fault.” Kandil-Elsayed, ___
Mich at ___; slip op at 39-40. Kandil-Elsayed further clarified that “the three traditional status-
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based categories” for determining the duty a possessor of land owes to a person on the land—
licensee, invitee, and trespasser—remained unchanged. Id. at ___; slip op at 39.
There is no dispute that Kandil-Elsayed changed the legal landscape for premises liability
cases. The governing law for these claims at the time the trial court decided defendant’s motion
has changed, and we conclude that it is most prudent to simply vacate the trial court’s order
denying defendant’s motion for summary disposition and remand the matter back to the trial court
for further proceedings under the standards outlined in Kandil-Elsayed.
The trial court’s order is vacated and the matter remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
/s/ Kirsten Frank Kelly
/s/ Christopher M. Murray
/s/ Brock A. Swartzle
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