Michigan Court of Appeals; Docket # 338966; Unpublished
Judges O’Connel, Servitto, and Cavanagh per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion; Link to Dissent
STATUTORY INDEXING:
General / Miscellaneous [§3135]
TOPICAL INDEXING:
CASE SUMMARY:
In this non-unanimous unpublished per curiam opinion, the Court of Appeals upheld the trial court’s grant of summary disposition regarding the application of the open and obvious doctrine against Plaintiff .The Court of Appeals upheld the trial court’s grant of summary disposition and found the open and obvious doctrine to be applicable because Plaintiff’s mother Kathleen Scola (“Kathleen”) exited a marked drive way into oncoming traffic that was also marked.
On June 27, 2003, Plaintiff was a passenger in a vehicle that was involved in a head-on collision. Plaintiff was riding in a station wagon that was driven by his mother Kathleen. Kathleen was driving southbound on Wayne Road and intended to turn east on Michigan Avenue. Kathleen missed her turn at the intersection of Wayne Road and Michigan Avenue. Kathleen turned into a parking lot owned by JP Morgan Chase Bank (“Chase Bank”) and exited the parking lot onto Michigan Avenue. Unfortunately, Kathleen unknowingly turned into one-way traffic on Michigan Avenue because this section of Michigan Avenue splits into two one-way streets. After turning east into the one-way westbound traffic, the vehicle was struck head-on by another vehicle driving west. Plaintiff brought an action against Chase Bank alleging that it was negligent for not placing a sign on the exit warning that the road was one-way traffic. The trial court found that this was a premises liability action and Plaintiff was barred from recovery by the open and obvious doctrine. Plaintiff appealed the trial court’s grant of summary disposition arguing that Plaintiff’s action was ordinary negligence, not premises liability, and the open and obvious doctrine was not applicable.
The Court of Appeals first analyzed whether the action was one for premises liability or ordinary negligence. Citing to Adams v Adams (On Reconsideration), 276 Mich App 704, 710-711, (2007), the court articulated that “[t]he 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.” In this action, Plaintiff maintained that Chase Bank had a duty to safely maintain the transition from its exit-way to the roadway and the lack of signs created an unsafe condition. Thus, the Court determined that the substance of the action was a premises liability action, even though Plaintiff labeled it otherwise.
The Court next determined what duty of care Defendant owed. The trial court assumed that Plaintiff was an invitee and the Court maintained that assumption. The Court explained that a landlord has a duty to exercise due care to protect invitees from conditions that might result in injury. However, a premises possessor does not owe a duty to protect or warn an invitee regarding dangers that are open and obvious. The Court finally explained the test to determine if a condition is open and obvious is “whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection.” While Plaintiff argued that the open and obvious doctrine did not apply because Michigan Avenue is not on Defendant’s premises, the Court concluded that the open and obvious doctrine did apply because the issue was Defendant’s lack of a safety sign on the property. The Court next concluded that an average person with reasonable intelligence would have discovered that Michigan Avenue has one-way traffic at the exit because there were one-way signs at the Wayne Road Michigan Avenue intersection, Kathleen drove through the intersection, and there were only white lines in the road. Thus, the Court concluded that the open and obvious doctrine did apply, and a person of reasonable intelligence would have discovered that the road was one-way traffic.
“[T]he alleged dangerous condition, the lack of warning signage at the exit driveway, was located (or should have been located, according to plaintiff) on the bank’s premises. Thus, application of the open and obvious doctrine to the lack of signage regarding the one-way nature of Michigan Avenue is not precluded. . . . An average person with ordinary intelligence would have discovered the traffic signs at the intersection and the white lines on the roadway upon casual inspection in the absence of signs in the parking lot.”
Although Plaintiff did not raise the issue, the Court also found that no special circumstances existed that would preclude the open and obvious doctrine. The two special circumstances that will circumvent the open and obvious doctrine are: (1) an unavoidable hazard or (2) unreasonably dangerous. The Court found that the hazard was avoidable because Kathleen could have correctly gone eastbound on Michigan Avenue without going through the bank. The Court also found that the hazard was not unreasonably dangerous because traffic accidents are not out of the ordinary when an individual is traveling in a car.
“An exit from a business without one-way warning signs is a typical hazard that does not constitute a limited extreme situation. Although plaintiff incurred a serious injury to his kidney, “even the most unassuming situation can often be dangerous under the wrong set of circumstances.” Hoffner, 492 Mich at 472. . . . Kathleen chose to enter the bank parking lot solely as a route to get eastbound on Michigan Avenue. She could have turned around in a different business, or taken other roads to get onto eastbound Michigan.
Thus, the Court of Appeals found that Plaintiff’s action for negligence was based on premises liability, the open and obvious doctrine did apply, and there were no special circumstances that circumvented the open and obvious doctrine.
Dissent by Judge Cavanagh:
Judge Cavanagh dissented from the majority. First, Judge Cavanagh explained that invitees are owed a duty from landowners to make known dangerous conditions that are hidden or latent.” In the case at bar, Defendant had been warned several times by a neighbor about cars turning the wrong way onto Michigan Avenue, just as Kathleen had done. An accident reconstructionist also presented evidence that Defendant had a misleading arrow that guided driver to drive straight, even though turning left out of the parking lot was the only safe direction. Finally, there was evidence from the responding officer to the crash that it was typical for people to get lost at the intersection and drive the wrong way on Michigan Avenue. According to Judge Cavanagh these facts demonstrated a failure from Chase Bank to make known a dangerous condition that was hidden or latent.
Second, Judge Cavanagh explained that the open and obvious doctrine test is “whether it is reasonable to expect that an average person with ordinary intelligence would [discover the condition] upon casual inspection.” The judge argued that a one-way sign at the intersection and white lines at the road would not be open and obvious if a person casually inspected the road. Further, the judge argued that the case of Balcer v Forbes, 188 Mich App 509 (1991), which Defendant relied upon, was not applicable to this case because the issue on appeal in that case was not what duty was owed to invitees and it involved pedestrian-plaintiffs.
“Accordingly, I would hold that, considering the record evidence in the light most favorable to plaintiff as the nonmoving party, plaintiff established that a genuine issue of material fact existed as to whether defendants had a duty to warn drivers exiting their parking lot that they must only turn left because it is not reasonable to expect that an average person with ordinary intelligence would discover upon casual inspection that the intersecting road is a oneway, westbound road.”
Thus, Judge Cavanagh would have vacated the order for summary disposition and remanded the case.
