Denise Fowler v. Menard Inc

STATE OF MICHIGAN
COURT OF APPEALS
DENISE FOWLER as Next Friend of UNPUBLISHED
VIRGINIA JANE RAWLUSZKI, September 15, 2015
Plaintiff-Appellee,
v No. 310890
Bay Circuit Court
MENARD, INC., LC No. 11-003317-NO
Defendant-Appellant.
Before: RONAYNE KRAUSE, P.J., and WILDER and STEPHENS, JJ.
WILDER, J., (dissenting).
I respectfully dissent. I would reverse the trial court and hold that plaintiff did not
establish that the crosswalk markings on the parking lot pavement were installed in such a way
that they constituted a special aspect sufficient to avoid the application of the open and obvious
doctrine in this case.
In affirming the trial court’s order denying summary disposition, the majority upholds the
trial court’s finding that Menard’s intentional design of the crosswalk was such that Menard
“created a safety zone, . . . a special aspect, [which]warranted the imposition of a duty of care.”
The majority further holds that plaintiff’s expert report purportedly supports this finding, and that
defendant failed to submit any evidence on the question whether the crosswalk design would
give a pedestrian a sense of safety or distraction. I disagree.
In Lugo v Ameritech Corp, Inc, 464 Mich. 512, 518; 629 NW2d 384 (2001), our Supreme
Court proffered two examples of conditions that would satisfy a special aspects exception—an
unguarded, 30–foot deep pit, which creates “a substantial risk of death or severe injury[,]” and a
standing pool of water in front of the only exit to a premises, which is “effectively unavoidable”
by a person trying to leave the premises. Moreover, Lugo emphasizes that “only those special
aspects which give rise to a uniquely high likelihood of harm or severity of harm if the risk is not
avoided will serve to remove that condition from the open and obvious danger doctrine.” Id. at
519 (emphasis added). In the first “published case[] dealing with the application of the open and
obvious doctrine to parking lot design[,]” this Court held in Richardson v Rockwood Center,
LLC, 275 Mich. App. 244, 248; 737 NW2d 801 (2007), that “[t]he lack of signs or other traffic
control devices or markings does not constitute a ‘special aspect’ that would remove [a] case
from an application of the open and obvious danger doctrine.” Id. at 249. The difficulty in
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establishing an exception to the open and obvious doctrine was amplified upon by our Supreme
Court in Hoffner v Lanctoe, 492 Mich. 450, 472; 821 NW2d 88 (2012):
[W]hen confronted with an issue concerning an open and obvious hazard,
Michigan courts should hew closely to the principles previously discussed. It
bears repeating that exceptions to the open and obvious doctrine are narrow and
designed to permit liability for such dangers only in limited, extreme situations.
Thus, an “unreasonably dangerous” hazard must be just that—not just a
dangerous hazard, but one that is unreasonably so. And it must be more than
theoretically or retrospectively dangerous, because even the most unassuming
situation can often be dangerous under the wrong set of circumstances. [Citations
omitted.]
The facts here do not establish a question of fact of the existence of an “unreasonably
dangerous” hazard. Plaintiff’s expert opined that “the design of the crosswalks . . . [were]
substandard for safety[,]” noting that at the site of the collision there were only “crosswalk hash
stripes” and that “[t]here [were] no warning signs, no pedestrian crosswalk warning signs or any
type of signage.” However, as noted by the Richardson Court, “it is typical for parking lots
outside businesses to lack signs or other traffic controls[,]” and “[a] common condition is not
uniquely dangerous, and, therefore, does not give rise to an unreasonable risk of harm.”
Richardson, 275 Mich. App. at 249 (citations and quotation marks omitted). The fact that Menard
installed crosswalk hash stripes but did not also install other signage did not create a question of
fact regarding whether this condition that is common in parking lots throughout the State of
Michigan was uniquely dangerous or gave rise to an unreasonable risk of harm. Because I
conclude the record does not demonstrate the existence of a special aspect as defined in our
caselaw, I would reverse.
/s/ Kurtis T. Wilder
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