Paul Weiss v. Blarney Castle Oil Company ( 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
PAUL WEISS, UNPUBLISHED
December 21, 2023
Plaintiff-Appellant,
v No. 364327
Isabella Circuit Court
BLARNEY CASTLE OIL CO, LC No. 2022-017617-NO
Defendant-Appellee.
Before: RIORDAN, P.J., and MURRAY and M. J. KELLY, JJ.
PER CURIAM.
In this premises liability action, plaintiff, Paul Weiss, appeals as of right the trial court’s
opinion and order granting defendant, Blarney Castle Oil Company’s, motion for summary
disposition under MCR 2.116(C)(10), and dismissing his complaint in its entirety. On appeal,
plaintiff argues that the court erred by granting summary disposition in favor of defendant because
the hazard that caused his fall was not open and obvious as a matter of law, the hazard was not
effectively unavoidable, and this cause of action did not sound solely in premises liability. Because
the law concerning the open and obvious danger doctrine has changed, we affirm in part, and
vacate the trial court’s order in part, and remand for the trial court to consider defendant’s
summary-disposition motion under the new framework provided by Kandil-Elsayed v F & E Oil,
Inc, ___ Mich ___; ___ NW2d ___ (2023) (Docket Nos. 162907 and 163430).
I. FACTUAL AND PROCEDURAL HISTORY
This case arises out of plaintiff’s slip and fall at an EZ Mart gas station owned and operated
by defendant. According to a part-time gas station clerk, she was the sole employee on the property
when the incident occurred on February 4, 2021, at approximately 7:20 p.m. She had just finished
mopping the floor. She explained in her deposition that she was required to mop the floor at least
once during her shift. However, she commonly mopped more than once, especially during the
winter months, because customers tracked snow into the store. She placed a yellow “wet floor”
sign at the front of the store so that customers would see it as soon as they entered. She placed a
second wet floor sign near the back of the store. It was placed in front of an end cap display
between the second and third aisles. The sign was placed at an angle so that it was visible from
-1-
different directions. The clerk stated that the store’s floor was typically “kind of a dull—like a
matte finish.” In her experience, moisture caused the floor to be “shiny.” She could not recall
whether anything prompted her to mop the floors at 7:20 p.m. She was supposed to complete her
assigned tasks, such as mopping, before the store closed so that she could leave shortly after
closing. Before the incident involving plaintiff, she was not aware of anyone slipping and falling
within the store.
When plaintiff entered the store, he wiped his feet on the rug in front of the door.
According to the clerk, she greeted plaintiff and warned him that she just mopped the floor.
Plaintiff responded, “yes.” On the other hand, plaintiff testified during his deposition that he did
not encounter any employees before he fell, and that he was not warned that the floor had recently
been mopped.
According to plaintiff, he stopped by the EZ Mart to purchase a pop. He went to the store
at least once a week to purchase pop or cigarettes. He noticed something “glossy” on the floor so
he “leaped” from one rug to another to avoid stepping on the bare floor. Plaintiff stated that he
retrieved a pop from the cooler at the rear of the store. As he was moving toward the front of the
store, he walked around a corner, and then slipped and fell. Both of his feet slipped out from under
him and he fell on his right side. He landed on his right elbow. Plaintiff stated that he was looking
straight ahead when he fell. He did not know what caused him to fall. He did not see anything on
the floor. In any event, his pants were wet after he fell. The clerk also denied seeing anything on
the floor in the area where plaintiff fell. He fell in the area near the second wet floor sign.
Defendant provided surveillance video of the incident.
Plaintiff filed a two-count complaint against defendant, alleging negligence and premises
liability. After conducting discovery, defendant moved for summary disposition under
MCR 2.116(C)(10). Defendant asserted that the alleged condition, to the extent that plaintiff could
even substantiate what caused him to fall, was open and obvious upon casual inspection. The trial
court agreed and granted the motion. This appeal followed.
II. ANALYSIS
A. STANDARD OF REVIEW
We review a trial court’s ruling on a motion for summary disposition de novo. Auto Club
Group Ins Co v Burchell, 249 Mich App 468, 479; 642 NW2d 406 (2001). When reviewing a
motion brought under MCR 2.116(C)(10), we “must consider the pleadings, affidavits,
depositions, admissions, and any other documentary evidence in favor of the party opposing the
motion.” Baker v Arbor Drugs, Inc, 215 Mich App 198, 202; 544 NW2d 727 (1996). Our “task
is to review the record evidence, and all reasonable inferences drawn from it, and decide whether
a genuine issue regarding any material fact exists to warrant a trial.” Id. A genuine issue of
material fact exists when the record, “giving the benefit of reasonable doubt to the opposing party,
would leave open an issue upon which reasonable minds might differ.” Shallal v Catholic Social
Servs of Wayne Co, 455 Mich 604, 609; 566 NW2d 571 (1997) (quotation marks and citations
omitted).
-2-
B. PREMISES LIABILITY
First, plaintiff argues that the trial court erred by granting defendant’s motion for summary
disposition because the hazardous condition was not open and obvious as a matter of law.
“All negligence actions, including those based on premises liability, require a plaintiff to
prove four essential elements: duty, breach, causation, and harm.” Kandil-Elsayed, ___ Mich
at ___; slip op at 8. The duty element “is essentially a question whether the relationship between
the actor and the injured person gives rise to any legal obligation on the actor’s part for the benefit
of the injured person.” Id. (quotation marks and citation omitted). In addition to the relationship
between the parties, courts may consider the following factors to determine whether a duty exists:
“(1) foreseeability of the harm, (2) degree of certainty of injury, (3) closeness of connection
between the conduct and injury, (4) moral blame attached to the conduct, (5) policy of preventing
future harm, and (6) the burdens and consequences of imposing a duty and the resulting liability
for breach.” Id. (quotation marks and citations omitted).
In a case involving premises liability, the applicable duty to a visitor depends on that
visitor’s status. Id. at ___; slip op at 9. There was no dispute in this case that plaintiff was an
invitee. See id. (stating that invitee status is commonly afforded to persons entering upon the
property of another for business purposes). “[A]n invitee is entitled to the highest level of
protection under premises liability law.” Id. (quotation marks and citation omitted). As a result,
“[l]and possessors owe a duty to exercise reasonable care to protect invitees from an unreasonable
risk of harm caused by a dangerous condition of the land.” Id. (quotation marks and citation
omitted). The question of “whether the defendant owes an actionable legal duty to the plaintiff is
one of law which the court decides.” Id. (quotation marks and citation omitted).
In Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001), overruled by
Kandil-Elsayed, ___ Mich at ___; slip op at 2, our Supreme Court held that the duty of a premise’s
possessor did not encompass the removal of open and obvious dangers. As explained by the Court
in Lugo, 464 Mich at 516, “[w]here the dangers are known to the invitee or are so obvious that the
invitee might reasonably be expected to discover them, an invitor owes no duty to protect or warn
the invitee unless he should anticipate the harm despite knowledge of it on behalf of the invitee.”
(Quotation marks and citation omitted.) The Court further stated that “a premises possessor is not
required to protect an invitee from open and obvious dangers, but, if 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.” Id. at 517.
The Lugo framework was the law at the time that the trial court ruled on defendant’s motion
for summary disposition. However, on July 28, 2023, the Court issued Kandil-Elsayed, ___ Mich
at ___; slip op at 2, which overruled Lugo in two respects. First, the Court held that the open and
obvious danger doctrine was relevant to breach and the parties’ comparative fault, rather than a
land possessor’s duty. Id. Second, the Court overruled “the special-aspects doctrine and [held]
that when a land possessor should anticipate the harm that results from an open and obvious
condition, despite its obviousness, the possessor is not relieved of the duty of reasonable care.” Id.Accordingly, the fact that a condition is open and obvious no longer cuts off liability for
the land possessor. Id. at ___; slip op at 41. In summary, the Court explained:
-3-
[A] land possessor owes a duty to exercise reasonable care to protect invitees from
an unreasonable risk of harm caused by a dangerous condition of the land. If the
plaintiff establishes that the land possessor owed plaintiff a duty, the next step in
the inquiry is whether there was a breach of that duty. . . . As part of the breach
inquiry, the fact-finder may consider, among other things, whether the condition
was open and obvious and whether, despite its open and obvious nature, the land
possessor should have anticipated harm to the invitee. If breach is shown, as well
as causation and harm, then the jury should consider the plaintiff’s comparative
fault and reduce the plaintiff’s damages accordingly. A determination of the
plaintiff’s comparative fault may also require consideration of the open and obvious
nature of the hazard and the plaintiff’s choice to confront it. [Id. at ___; slip op at
43-44 (quotation marks, citation, and footnote omitted).]
Because the trial court considered defendant’s motion for summary disposition under the
Lugo framework, it considered whether the open and obvious danger doctrine affected defendant’s
duty. As that legal framework has changed so significantly, as described above, we vacate the
portion of the trial court’s opinion and order granting summary disposition on the basis that the
condition causing plaintiff’s fall was open and obvious, thereby negating defendant’s duty to take
reasonable care to protect him from that danger, and remand to the trial court for application of the
open and obvious danger framework announced in Kandil-Elsayed.
C. NEGLIGENCE
Second, plaintiff contends that the trial court erred by concluding that the cause of action
sounded solely in premises liability. We disagree, and affirm that portion of the trial court’s
opinion and order rejecting this argument.
“Courts are not bound by the labels that parties attach to their claims.” Buhalis v Trinity
Continuing Care Serv, 296 Mich App 685, 691; 822 NW2d 254 (2012), overruled in part on other
grounds by Kandil-Elsayed, ___ Mich at ___ (2023). Rather, “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.” Id. at 691-692 (quotation marks and citation omitted).
“Michigan law distinguishes between claims arising from ordinary negligence and claims
premised on a condition of the land.” Id. at 692. In a premises liability case, “liability arises solely
from the defendant’s duty as an owner, possessor, or occupier of land.” Id. “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.” Id.
Plaintiff’s two-count complaint asserted both negligence and premises liability. However,
in the negligence count, plaintiff alleged,
At all times, the Defendant owed to Plaintiff a duty to maintain its premises
and place of business in a reasonably safe condition, to exercise ordinary care to
protect Plaintiff from unreasonable risks of injury that were known or should have
been known by Defendant, to warn Plaintiff of any and all dangerous conditions
-4-
existing on Defendant’s property, to inspect and discover possible dangerous
conditions, and to render assistance to Plaintiff after she [sic] was injured.
Plaintiff further alleged that defendant knew or should have known that the floor was dangerous.
Moreover, plaintiff asserted that defendant breached its duties to him in numerous ways, including
by failing to keep the floor safe, failing to warn its invitees of dangers associated with the walkway,
failing to maintain the premises in a reasonably safe condition, and failing to inspect and clear
improper conditions.
As a result, plaintiff’s theory of liability arose solely from defendant’s duty as an owner,
possessor, or occupier of land. Indeed, he asserted that his injury arose from an alleged dangerous
condition in the store—the wet floor. The fact that plaintiff alleges that the clerk created the
condition by mopping the floor during business hours is immaterial. The action sounded solely in
premises liability, and the trial court properly identified it as such. See Buhalis, 296 Mich App at
691-692.
Accordingly, we affirm that portion of the trial court’s opinion and order concluding
plaintiff’s complaint sounded solely in premises liability, but vacate that portion granting summary
disposition on the basis that the condition causing plaintiff’s fall was open and obvious, thereby
negating defendant’s duty to take reasonable care to protect him from that danger, and remand to
the trial court for application of the open and obvious danger framework announced in Kandil-
Elsayed. We do not retain jurisdiction.
/s/ Michael J. Riordan
/s/ Christopher M. Murray
/s/ Michael J. Kelly
-5-