Where summary disposition was denied in a premises liability action, the defendants should have been awarded summary disposition because the evidence presented concerning the defendants’ alleged breach generates no questions of fact.
“Appellants appeal by leave granted1 an October 5, 2021 order denying summary disposition in their favor on plaintiff’s premises-liability claim. This Court previously reversed the trial court’s October 5, 2021 order as it related to Olympia Entertainment Events Center, LLC, Ilitch Holdings, Inc., and Little Caesars Arena, LLC, (hereafter ‘defendants’). Wright-Burton v Olympia Dev of Michigan, LLC , unpublished opinion of the Court of Appeals, issued December 22, 2022 (Docket No. 359032) (‘ Wright-Burton I ’). Our Supreme Court, however, vacated ‘that part of the judgment of the Court of Appeals reversing the Wayne Circuit Court’s denial of summary disposition’ and remanded the case back to this Court for reconsideration ‘in light of Kandil-Elsayed v F & E Oil, Inc , and Pinsky v Kroger Co of Mich [512 Mich 95; 1 NW3d 44(2023)]’. Wright-Burton v City of Detroit , 998 NW2d 697 (2024). Having reconsidered the matter as directed, we again reverse and remand for entry of summary disposition in defendants’ favor.
“It is undisputed that defendants, as land possessors owed plaintiff a duty to exercise reasonable care to protect her, an invitee, from an unreasonable risk of harm caused by dangerous conditions of the land. ... Under Kandil-Elsayed , the next step in our inquiry, then, is whether defendants breached that duty. That is where the open and obviousness of the alleged dangerous condition of the land (here, the curb) comes into play.
“In this Court’s prior decision, we determined that curbs, like steps were generally discoverable on casual inspection. ... This Court also found that the evidence supported there was lighting on the street, the lighting outside of Little Caesars Arena was readily apparent, and that plaintiff implicitly acknowledged the curb would have been visible to her, or to any other average person with ordinary intelligence, upon casual inspection by looking down toward the pavement before walking forward. ... Further, this Court noted plaintiff’s testimony that she passed the curb on her way into the arena several hours prior to her fall, as well the fact that plaintiff would have seen the people in front of her step down off the curb onto the street, making her aware of the curb, to find that the curb was open and obvious. ... Although Kandil-Elsayed shifted the element to which the open and obvious danger doctrine was relevant, it did not otherwise alter the substance of the doctrine. Kandil-Elsayed , 512 Mich at 134-135. Wright-Burton I carefully considered what an average person would have discovered under the circumstances, consistent with Kandil-Elsayed ’s admonishment that the open and obvious danger doctrine is an objective inquiry that should not focus strictly on the plaintiff’s own failure to discover the dangerous condition. ... The finding that the curb is open and obvious remains unchanged.
“That being true, we consider whether any breach of duty on defendants’ part with respect to the curb has been identified, or whether there is a question of fact concerning whether defendants breached any duty owed to plaintiff. We find the answer to both questions to be no.
“Plaintiff testified at her deposition that she was walking from the sidewalk area down into the street and simply did not notice the curb. There is nothing unusual about a curb separating the difference in elevation between a street and a sidewalk in front of a business and plaintiff has identified nothing defective or different about the curb. Plaintiff has also not identified anything about the curb that would render it dangerous or that would indicate it posed an unreasonable risk of harm. Defendants’ only duty, after all, was to exercise reasonable care to protect plaintiff from an unreasonable risk of harm caused by a dangerous condition of the land, Williams , 429 Mich at 499. Because the evidence presented concerning defendants’ alleged breach generates no questions of fact, the defendants are entitled to a judgment in their favor as matter of law.
“Reversed and remanded for entry of summary disposition in defendants’ favor.”
Wright-Burton v. City of Detroit; MiLW 08-107993, 5 pages; Michigan Court of Appeals unpublished per curiam; Jansen, J., Gadola, J., Servitto, J.; on remand from Michigan Supreme Court; Joseph T. Seward for appellant; David R. Parker for appellee.
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