Sandra Foster v. M & H Party Store Inc

STATE OF MICHIGAN
COURT OF APPEALS
SANDRA FOSTER and WILLIAM FOSTER, UNPUBLISHED
February 16, 2017
Plaintiffs-Appellants,
v No. 328283
Monroe Circuit Court
M & H PARTY STORE, INC., LC No. 14-036470-NI
Defendant-Appellee.
Before: STEPHENS, P.J., and SAAD and METER, JJ.
PER CURIAM.
In this premises liability action, plaintiffs appeal the trial court’s order that granted
defendant’s motion for summary disposition under MCR 2.116(C)(10). We affirm.
On October 13, 2012, plaintiff Sandra Foster patronized defendant’s convenience store to
purchase a bottle of wine. In images from defendant’s surveillance camera, plaintiff can be seen
walking through the parking lot toward defendant’s store at 7:54:54 p.m. The sidewalk appeared
to be damp and there were a number of puddles in the far side of the parking lot. As Ms. Foster
entered the store, there was a yellow wet-floor sign a few feet from the door, which she passed
on her left side. At the same time, defendant’s employee was mopping by the front door. At
7:55:05 p.m., plaintiff walked through the aisle in the back of the store and passed a second wet-
floor sign on her left side. Ms. Foster entered the wine aisle at 7:55:11 p.m. and fell within 30
seconds, though her actual fall was not visible from any of the surveillance footage.
Plaintiff testified that she did not see any warning signs in defendant’s store before she
fell. She also recalled that before she slipped, she was looking straight ahead and was not taking
any special precautions out of concern that the floors may be wet or slippery. However, after she
fell, she discovered that the floor was wet and observed a small puddle of water near the side of
the aisle. Ms. Foster acknowledged that the surveillance video showed her walking past two
wet-floor signs but testified that “[t]hey weren’t there” and that “I did not see it.”
Plaintiffs filed a complaint against defendant and alleged that Ms. Foster slipped on a
liquid on the floor of defendant’s store, which plaintiffs asserted was present because defendant’s
employee had recently mopped the floor. Ms. Foster sought damages for the injuries she
sustained in the fall based on theories of premises liability, “storekeeper’s liability,” and general
negligence. Plaintiffs also alleged that her husband, plaintiff William Foster, was entitled to
damages for loss of consortium.
-1-
Defendant filed a motion for summary disposition and argued that it was entitled to
judgment as a matter of law because there was no genuine issue of material fact that (1)
defendant met its duty of care to warn when it placed wet-floor signs in the store and,
alternatively, (2) the condition was open and obvious. The trial court ruled that defendant
satisfied its duty to warn invitees of the risk posed by the wet floor by the placement of the
caution signs in strategic locations. The court also cited the open and obvious doctrine when it
granted defendant’s motion for summary disposition.1
On appeal, plaintiffs raise three issues that purportedly show that the court erred when it
relied on the open and obvious doctrine. However, plaintiffs do not specifically address the trial
court’s primary ground for granting summary disposition: that defendant fulfilled its duty to
protect invitees from unknown dangers when its signs warned customers that the floors were
wet. Because plaintiffs do not challenge this necessary ground, they are precluded from any
relief on appeal. See City of Riverview v Sibley Limestone, 270 Mich. App. 627, 638; 716 NW2d
615 (2006) (“[A] party’s failure to brief an issue that necessarily must be reached precludes
appellate relief.”); Roberts & Son Contracting, Inc v N Oakland Development Corp, 163 Mich
App 109, 113; 413 NW2d 744 (1987). Although not necessary for us to address, we nonetheless
find that the trial court did not err when it ruled that there is no question of fact that defendant
fulfilled its duty to warn.
This Court reviews rulings on summary disposition motions de novo. Wilson v Alpena
Co Rd Comm, 474 Mich. 161, 166; 713 NW2d 717 (2006). “Summary disposition is appropriate
under MCR 2.116(C)(10) 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). “When deciding a motion for summary disposition under this rule, a
court must consider the pleadings, affidavits, depositions, admissions, and other documentary
evidence then filed in the action or submitted by the parties in the light most favorable to the
nonmoving party.” Bialick v Megan Mary, Inc, 286 Mich. App. 359, 362; 780 NW2d 599 (2009).
It is undisputed that Ms. Foster was an invitee of defendant’s business when she fell on
October 13, 2012. As an invitee, defendant owed her a duty to exercise reasonable care to
protect her against unreasonable risks of harm from potentially hazardous conditions on its
property. Hoffner v Lanctoe, 492 Mich. 450, 460; 821 NW2d 88 (2012). A premises owner is
liable for a breach of this duty when the owner “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.” Id. (emphasis added).
1
While the court acknowledged that the open and obvious doctrine can bar a plaintiff from
recovery in a premises liability action, it noted how the wet floor signs were open and obvious—
not the hazard itself. Because the open and obvious doctrine relates to the obviousness of the
hazard, see Riddle v McLouth Steel Prod Corp, 440 Mich. 85, 96; 485 NW2d 676 (1992);
Williams v Cunningham Drug Stores, Inc, 429 Mich. 495, 500; 418 NW2d 381 (1988); Slaughter
v Blarney Castle Oil Co, 281 Mich. App. 474, 478; 760 NW2d 287 (2008), it is not clear to what
extent the court actually relied on this doctrine when it granted summary disposition.
-2-
Here, as the trial court correctly noted, there were multiple wet-floor signs present and
Ms. Foster “almost had to walk around” two of them while she was inside the store. Thus, we
agree with the trial court that there is no question of fact that defendant complied with its duty to
warn invitees, such as plaintiff, of the wet-floor dangers present in the store. Accordingly, the
court properly granted defendant’s motion for summary disposition.
Although plaintiffs do not address the adequacy of the signs related to whether defendant
successfully discharged its duty to warn, we will address the adequacy of the signs in this
context. As an initial matter, plaintiffs cite no authority for the proposition that a warning must
be directly visible from every location that presents a risk of injury. “An appellant may not
merely announce his position and leave it to this Court to discover and rationalize the basis for
his claims, nor may he give only cursory treatment with little or no citation of supporting
authority.” Kubicki v Mortgage Elec Registration Sys, 292 Mich. App. 287, 291; 807 NW2d 433
(2011). In any event, it was undisputed that the establishment was a small convenience store.
Ms. Foster walked by two signs—one at the entrance to the store and one at the rear of the
store—on her way to the wine aisle. Because it was wet outside from rain, which clearly could
be brought into the store by patrons, a reasonable person would not take such notice as a warning
to only those two specific locations. Instead, one would view the warnings as applying to the
entire store. Indeed, in addition to the two signs that Ms. Foster passed, there was at least one
other wet-floor sign located elsewhere in the store, and the employee who was mopping was
using a yellow mop bucket that also had a “wet floor” warning. Accordingly, we hold that it
would be unreasonable to require a shop owner under these circumstances to place wet-floor
signs in every aisle. The several signs located throughout the small store complied with the
weather conditions, and were more than adequate notice that wet conditions could exist
anywhere in the store.
Because there was no issue of material fact with respect to whether defendant had
fulfilled its duty to warn customers of any potential wet hazards (and because plaintiffs do not
challenge this aspect of the trial court’s ruling), we need not address plaintiffs’ arguments related
to whether the particular hazard here was open and obvious.2
2
Of course, a premises owner owes no duty to protect or warn an invitee of dangers that are open
and obvious. Hoffner, 492 Mich. at 460-461. The reason for this rule is that open and obvious
dangers “by their nature, apprise an invitee of the potential hazard, which the invitee may then
take reasonable measures to avoid.” Id.
Plaintiffs also argue that there “should” be an independent duty for storekeepers to
provide reasonably safe aisles that obviates the open and obvious doctrine. But this suggestion
has been rejected in binding precedent in Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich
App 710; 737 NW2d 179 (2007). The case that plaintiffs rely on, Quinto v Woodward Detroit
CVS, 305 Mich. App. 73; 850 NW2d 642 (2014), merely suggested a different outcome than
Kennedy, but it nonetheless acknowledged that Kennedy was controlling. Id. at 74-75. Notably,
this Court declined the Quinto panel’s request to convene a conflict panel. Accordingly, were
-3-
Affirmed. Defendant, as the prevailing party, may tax costs pursuant to MCR 7.219.
/s/ Henry William Saad
/s/ Patrick M. Meter
we inclined to agree with plaintiffs, which we do not, we would likewise be bound by Kennedy.
See MCR 7.215(J)(1).
-4-