Court: Missing floor not 'open and obvious' hazard

By Kelly Caplan
BridgeTower Media Newswires
 
DETROIT — A woman who stepped into a dark room and then fell almost eight feet to the concrete floor below will have another day in court.

The Marquette County Circuit Court ruled that the woman’s claims sounded merely in premises liability and that her action was barred because there was no genuine issue of material fact dispute because the hazard was open and obvious and not unreasonably dangerous. But a Court of Appeals panel recently reversed that decision, saying that, as an invitee, the plaintiff was owed the greatest duty of care by the building’s owner.

And while that duty does not extend to open and obvious dangers, courts must look at the “objective nature of the condition of the premises” involved rather than focusing on the subjective degree of care used by a plaintiff.

“In this case, the hazard was a significant drop-off hidden behind an unlabeled and closed door in an office building,” the panel explained. “When this door was closed, the room appeared like any other room in an office, with nothing to indicate the danger behind it. ... There is no dispute that none of defendants’ agents warned plaintiff about this hazard, and there was no sign or other indication warning persons present on the premises that the hazard existed.”

The trial court also erred when it concluded the hazard was open and obvious and could have been discovered if the plaintiff had made a casual inspection.

“[T]he trial court here required too much: a hazard is not open and obvious if the danger could be revealed upon casual observation; it is open and obvious if the danger would have been discovered by an average person upon casual inspection,” they explained.

“The trial court used this ‘could’ language several times, implying that it treated a danger as open and obvious whenever some hypothetical casual inspection could have revealed the danger and prevented a fall, even if most casual inspections would not have revealed it.”

As such, reasonable minds could disagree whether the drop-off was open and obvious when looking at the evidence in a light most favorable to the plaintiff.

The case is Sundberg v. Oberstar Inc. Judges David H. Sawyer, Michael J. Kelly and Brock A. Swartzle sat on the panel that issued the unpublished per curiam opinion.

Ishpeming attorney Dominic Andriacchi Jr., who represented the plaintiff, was pleased with the appellate court’s decision.

“The court did a great job, especially when [the judges] emphasized that open-and-obvious hazards are those that would be discovered, not those that hypothetically could be. This is a very important and helpful distinction,” he said.

Sales representative Lee Anne Sundberg was at Oberstar Inc. to arrange a webinar presentation. Before the presentation, she asked an employee where the bathroom was; the employee pointed down a hallway toward two doors.

Sundberg opened one of the doors; she stepped over the threshold into a dark room, and felt for the light switch.

But the room she entered had no floor. She fell almost eight feet onto a concrete floor.

She was able to start the webinar and sit through the online presentation, but sought medical treatment for her injuries later that day.
Sundberg filed claims for premises liability and ordinary negligence against Oberstar.

Oberstar moved for summary disposition, saying Sundberg’s claims merely sounded in premises liability, adding that the hazard was open and obvious and not unreasonably dangerous.

The Marquette County Circuit Court agreed, granting Oberstar’s motion for summary disposition under MCR 2.116(C)(10).

The drop-off presented special aspects that made the risk unreasonably dangerous; therefore, Oberstar had a duty to take reasonable precautions to protect its invitees from that risk, the panel said, citing Lugo v. Ameritech Inc., 464 Mich 512 (2001).

In this case, the door opened inward toward the drop-off; one step over the threshold was enough to cause a person to fall more than seven feet onto a concrete floor. This showed a question of fact regarding whether the hazard was an unreasonably dangerous condition.

“Plaintiff’s medical expert concluded that an unexpected fall from that height onto a cement floor presented ‘a high risk of severe harm and/or death,’” the panel said. “Charles Oberstar, the president of Oberstar who had authority to speak on behalf of and bind both defendant organizations, testified that the door was supposed to be locked ‘[s]o nobody would fall down the basement,’ and he admitted that such a fall was dangerous and could result in death.”

Because there was a question of fact on the drop-off’s special aspects, the trial court erred when it granted summary disposition to the defendants.

Finally, the appellate court said the crucial issue is not whether a plaintiff is injured by a hazardous condition on the premises, but whether that injury is tied to some “additional conduct” by a defendant.

“The ordinary-negligence claim here is based on conduct: plaintiff ties her claim to the behavior of defendant’s employee moments before the fall, and not merely to the existence of the hazard on the premises” the panel said. “The trial court therefore erred by treating plaintiff’s claims as sounding solely in premises liability and subject to an open-and-obvious defense.”