United States 6th Circuit Court of Appeals Reports
KESSLER v. VISTEON CORP., 448 F.3d 326 (6th Cir. 2006)
Howard H. KESSLER; Jacqueline A. Kessler,
Plaintiffs-Appellants, v. VISTEON CORPORATION, a Delaware
Corporation, Defendant-Appellee. No. 04-2056. United
States Court of Appeals, Sixth Circuit. Argued: December 2,
2005. Filed March 31, 2006.[fn*]
[fn*] This decision was originally issued as an
“unpublished decision” filed on March 31, 2006. On April
27, 2006, the court designated the opinion as one
recommended for full-text publication.
Appeal from the United States District Court for the
Eastern District of Michigan. Page 327
ARGUED: Richard L. Steinberg, Detroit, MI, for Appellants.
John R. Trentacosta, Foley & Lardner, Detroit, MI, for
Appellee. ON BRIEF: Richard L. Steinberg, Detroit, MI, for
Appellants, John R. Trentacosta, Jenice C. Mitchell, Foley
& Lardner, Detroit, MI, for Appellee.
Before BOGGS, Chief Judge; BATCHELDER; Circuit Judge; and
KATZ, District Judge.[fn**]
[fn**] The Honorable David A. Katz, United States District
Judge for the Northern District of Ohio, sitting by
designation.
PER CURIAM.
Plaintiffs-Appellants, Howard H. Kessler and his wife,
Jacqueline A. Kessler (“Kessler”), appeal the decision of
the district court granting summary judgment to the
defendant, Visteon Corporation (“Visteon”), on their
negligence claims. While making a business visit to a
Visteon plant, Kessler was struck by a forklift driven by a
Visteon employee. He sought damages Page 328 for injuries
sustained in the accident and his wife presented claims for
loss of consortium. The district court, applying Michigan
law, found on summary judgment that Visteon did not owe
Kessler a duty of care because of the open and obvious
nature of the hazard. We reverse. The district court
erroneously combined and dismissed two distinct allegations
of unreasonable risk of harm when it dismissed the danger
as open and obvious. We hold that 1) Visteon, through its
employee, owed Kessler a duty of care to operate its
machinery in a reasonably safe manner and 2) Kessler has
raised a genuine issue of material fact as to whether the
operation of a forklift in proximity to pedestrians on the
loading dock that day is an open and obvious activity that
presents special aspects of danger under Michigan law.
I
Visteon is in the business of assembling automotive
components. Until recently, it was part of the Ford
Corporation. On November 6, 2000, Kessler was injured when
he approached an operating powered material handling
vehicle (“PMHV”), commonly known as a hi-lo or a forklift.
The PMHV, moving in reverse, rolled over and broke
Kessler’s foot, and its counterweight struck him in the
leg, knocking him over. Kessler was working for Dakota
Leasing/Short Freight Lines (“Dakota”), a company that
provides transportation services to and from Visteon’s
Utica facility, the site of the accident.
Kessler was a regular visitor to the Utica plant at the
time of the accident. He made a “dedicated run” to the
plant, five days a week. On the day of the accident,
Kessler was delivering a load of dashboards for the Ford
Taurus. He arrived between shifts, at about 4:00 pm, and
spent some time in the plant’s lounge waiting for
assistance. He walked through the facility to find a
Visteon employee to unload his trailer, which he parked
near the fully occupied loading dock. Upon entering the
loading dock, he saw Michael J. Hyde, a Visteon employee,
using a PMHV to unload another Dakota trailer. The trailer
in question was not Kessler’s, so, in an attempt to inform
Hyde that he should be unloading a different trailer,
Kessler approached, and was struck by the vehicle.
On February 19, 2003, Kessler filed his complaint
alleging, inter alia, that Visteon had been negligent in
its ownership and maintenance of the PMHV, that Visteon’s
employee had been negligent in the operation of the PMHV,
and that these breaches of duty had resulted in severe,
permanent, and irreversible injury to Kessler. He prayed
for compensatory damages. On March 11, 2003, Visteon
answered the complaint and asserted several affirmative
defenses, including comparative negligence, failure to
state a claim, and that the danger was open and obvious.
During discovery, the following evidence was produced: The
Utica plant is approximately two million square feet in
size. In this large facility, pedestrians share space with
PMHVs. In 1994, over twenty “significant” harmful events
occurred involving PMHVs and pedestrians in Visteon plants,
four resulting in permanent disability. Before the accident
that is the subject of this case, Visteon began a safety
campaign to eliminate the dangers posed by men and machine
working so closely together. The program included
pedestrian safety training, increased pedestrian visibility
through reflective vests on employees, and marking aisles
for pedestrian and vehicular traffic, creating “green” and
“red” zones. Truck drivers like Kessler who visit the plant
now watch a pedestrian safety video. The loading dock where
Kessler was hit is now a pedestrian red zone, a marked area
with Page 329 signs, where “pedestrians are not expected
to be.” Visteon’s training videotapes, and safety standards
promulgated by both the Michigan Occupational Safety and
Health Administration and the American Society of
Mechanical Engineers, all state that safe operation is the
responsibility of a PMHV operator, that pedestrians have
the right of way, and that an operator should always look
in the direction of travel. The deposition of Hyde revealed
that he had viewed the videotapes and that none of the
Visteon PMHVs that he operated sounded an audible warning
when moving in reverse.
On December 3, 2003, Visteon moved for summary judgment.
It argued that no duty was owed to Kessler where the
danger presented by the operating PMHV was open and
obvious. On December 22, 2003, Kessler filed a response to
the motion, asserting that the open and obvious nature of
the danger was irrelevant where Visteon’s operator owed
Kessler a duty of care to operate and maintain its PMHV in
a reasonably safe manner. Kessler noted that Visteon, in
its brief, had failed to cite a single case where the open
and obvious exception was applied to the conduct of a
defendant and not to a condition on the land. On June 30,
2004, the district court entered summary judgement for
Visteon on all claims. Kessler v. Visteon, No. 03-70700
(E.D. Mich. June 30, 2004).
On July 2, 2004, Kessler moved for reconsideration under
Rule 59(e). See Fed.R.Civ.P. 59(e). He also moved to
certify the question to the Michigan Supreme Court, arguing
that the validity of Visteon’s defense was a question of
first impression. See Mich. Ct. R. § 7.305(b)
(allowing federal judges to certify questions to the
Michigan Supreme Court). Both motions were denied. Kessler
v. Visteon, No. 03-70700 (E.D.Mich. July 21, 2004) (denying
motion to reconsider); Kessler v. Visteon, No. 03-70700
(E.D.Mich. Aug. 11, 2004) (denying motion to certify). On
August 19, 2004, Kessler timely filed his notice of appeal.
See Fed.R.App.P. 4.
II
Jurisdiction in the district court was proper due to the
diversity of the parties and the amount in controversy. See
28 U.S.C. § 1332. Kessler is a citizen of the state
of Ohio and Visteon is a corporation organized and
chartered under the laws of Delaware with its principal
place of business in Michigan. We have jurisdiction
pursuant to 28 U.S.C. § 1291.
We review a grant of summary judgment de novo. Williams v.
Ford Motor Co., 187 F.3d 533, 537-38 (6th Cir. 1999).
Summary judgment is appropriate where “the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(c). In reviewing a grant of summary
judgment, the evidence must be viewed in the light most
favorable to the opposing party. Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986). That party cannot rest on its
pleading or allegations, to prevail they must present
material evidence in support of their allegations. Celotex
Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). A mere scintilla of evidence is
insufficient; there must be evidence on which the jury
could reasonably find for the non-moving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In this case, jurisdiction is founded upon diversity of
citizenship pursuant to 28 U.S.C. § 1332(a)(1).
Accordingly, we apply Page 330 state law as decided by
the Michigan Supreme Court. See Erie R.R. Co. v. Tompkins,
304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); State Farm
Fire and Cas. Co. v. McGowan, 421 F.3d 433, 436 (6th Cir.
2005). If the Michigan Supreme Court has not yet addressed
the issue presented, we must predict how it would rule, by
looking to “all relevant data,” including state appellate
decisions. Kingsley Assocs., Inc. v. Moll PlastiCrafters,
Inc., 65 F.3d 498, 507 (6th Cir. 1995) (citing Bailey v. V
& O Press Co., Inc., 770 F.2d 601, 604 (6th Cir. 1985));
See also Owens Corning v. Nat’l Union Fire Ins. Co. of
Pittsburgh, Pa., 257 F.3d 484, 491 (6th Cir. 2001). “[I]n
all cases where a federal court is exercising jurisdiction
solely because of the diversity of citizenship of the
parties, the outcome of the litigation in the federal court
should be substantially the same, so far as legal rules
determine the outcome of a litigation, as it would be if
tried in a State court.” Guaranty Trust Co. of N.Y. v.
York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); See
also Powell v. Jacor Comm. Corp., 320 F.3d 599, 602-03 (6th
Cir. 2003).
III
A
We first examine whether Visteon owed Kessler a duty of
care from its employee’s conduct and operation of the PMHV
in its loading dock. The first element of an action in
negligence is duty. See Riddle v. McLouth Steel Prods.
Corp., 440 Mich. 85, 485 N.W.2d 676, 681 n. 10 (1992); W.
Page Keeton, et al., Prosser and Keeton on the Law of
Torts, § 30 (5th ed. 1984) [hereinafter Prosser &
Keeton]. “Duty exists because the relationship between the
parties gives rise to a legal obligation.” Bertrand v. Alan
Ford, Inc., 449 Mich. 606, 537 N.W.2d 185, 188 (1995); See
also Maiden v. Rozwood, 461 Mich. 109, 597 N.W.2d 817, 829
(1999). Duty is an obligation “to conform to a certain
standard of conduct, for the protection of others against
unreasonable risks.” Ibid. In Michigan, there is generally
“a duty to exercise reasonable care in how one acts to
avoid physical harm to persons and tangible things.” 18A
Michigan Civil Jurisprudence, Negligence § 9
(emphasis added).
Duty may be established “specifically by mandate of
statute, or it may arise generally by operation of law
under application of the basic rule of the common law,
which imposes on every person engaged in the prosecution
of any undertaking an obligation to use due care, or to so
govern his actions as not to unreasonably endanger the
person or property of others.”
Riddle, 485 N.W.2d at 681 (quoting Clark v. Dalman, 379
Mich. 251, 150 N.W.2d 755 (1967)) (emphasis added).
Congruently, the Restatement is broad in its initial
definition of negligence. It defines negligence as “conduct
which falls below the standard established by law for the
protection of others against unreasonable risk of harm.”
Restatement (Second) of Torts § 282 (emphasis
added). Of course, that standard “is that of a reasonable
man under like circumstances.” Id. at § 283. “A
negligent act or omission may be one which involves an
unreasonable risk of harm to another . . .” Id. at §
302 (emphasis added). We note these references to conduct
and actions because it is clear that actions are a main
source of negligent behavior. The Michigan Courts
acknowledge this:
It is well established that those who undertake
particular activities or enter into special relationships
assume a distinctive duty to procure knowledge and
experience regarding that activity, person, or thing. For
example, a landlord must inspect a premises to keep it in
a Page 331 reasonably safe condition. Physicians must
keep reasonably abreast of current advances in their
field. Manufacturers must diligently inspect their
products to discover lurking dangers. Lastly, a carrier
owes to its passengers the duty of discovering all
detectable defects.
Schultz v. Consumers Power Co., 443 Mich. 445, 506 N.W.2d
175, 178 (1993) (emphasis added). We think that the
Michigan Supreme Court would not hesitate to add that the
operators of PMHVs must take reasonable measures to avoid
injury to pedestrians. Whether Visteon’s employee breached
this duty, we think, should be a question for the jury.
In their complaint, the Kesslers clearly alleged a breach
of this duty. Kessler argues that Visteon should be held
liable “vicariously for the negligence of its employee” who
“failed to use due care and caution in the operation and
control” of the PMHV. Compl. at § 7. Visteon argues,
and the district court agreed, that regardless of the
actions of its employee it cannot be held liable because
the danger was open and obvious. Although Visteon has a
more limited duty to Kessler as an owner of the property on
which the injury occurred, it has an independent duty to
Kessler arising vicariously from its employee’s operation
of the PMHV. This latter duty is unaffected by the open and
obvious nature of the hazard because it is unrelated to
premises liability.
B
Separate and distinct from any duty that flows from
conduct, the Michigan courts recognize a duty of care that
arises solely from the possession of land — premises
liability. Kubczak v. Chem. Bank & Trust Co., 456 Mich.
653, 575 N.W.2d 745, 747 (1998) (premises liability
requires possession and control over the land). “In a
premises liability claim, liability emanates merely from
the defendant’s duty as an owner, possessor, or occupier of
land.” Laier v. Kitchen, 266 Mich.App. 482, 702 N.W.2d 199,
208 (2005).
[S]ocial policy imposes on possessors of land a legal
duty to protect their invitees on the basis of the special
relationship that exists between them. The rationale for
imposing liability is that the invitor is in a better
position to control the safety aspects of his property
when his invitees entrust their own protection to him
while entering his property.
Bertrand v. Alan Ford, Inc., 449 Mich. 606, 537 N.W.2d 185,
186 (1995) (citation omitted); see also Riddle v. McLouth
Steel Prods. Corp., 440 Mich. 85, 485 N.W.2d 676, 679
(Mich. 1992). Invitees are those who enter a premises on
the invitation of the owner to conduct some business there.
See Prosser & Keeton, § 61. Typically they are
people such as customers and “drivers calling for or
delivering goods purchased or sold.” Ibid. “In general, a
premises possessor owes a duty to an invitee to exercise
reasonable care to protect the invitee from an unreasonable
risk of harm caused by a dangerous condition on the land.”
Lugo v. Ameritech Corp., 464 Mich. 512, 629 N.W.2d 384, 386
(2001). But, because possessors of land are not the
“absolute insurers of the safety of their invitees,”
Bertrand, 537 N.W.2d at 188, “this duty does not generally
encompass removal of open and obvious dangers” Lugo, 629
N.W.2d at 386. See also Prosser & Keeton § 61.
Therefore, it is clear that ordinary negligence and
premises liability describe two distinct theories of
negligence liability: one flows from actions, the other
from possession. Both place the burden of limiting injuries
upon the person most likely to be effective in doing so.
Page 332
C
The district court in this case recognized that at least
two theories of liability were alleged in Kessler’s
complaint. The court identified the duty that the law
“imposes on every person engaged in the prosecution of any
undertaking an obligation to use due care,” Kessler v.
Visteon, No. 03-70700, slip op. at 5-6 (E.D. Mich. June 30,
2004) [hereinafter Kessler] (citing Riddle, 485 N.W.2d at
679), and a duty that a “premises owner owes to a visitor
on his property.” Ibid. From that point, however, the
district court conflated the two analyses into one and
proceeded to discuss duty exclusively in terms of premises
liability:
Defendant argues it owed no duty to Plaintiff because the
forklift presented an open and obvious danger and is
devoid of special aspects making it unreasonably
dangerous. Plaintiff seeks to avoid the open and obvious
doctrine by insisting this is not a premises liability
case, but a case of ordinary negligence, and that the open
and obvious doctrine is inapplicable. The Court disagrees
with Plaintiff’s theory [of] liability. Plaintiff was
injured while on Defendant’s premises from an activity on
the premises. The various standards of care owed to
visitors like Plaintiff apply because Defendant is the
landowner. The open and obvious doctrine applies not only
to conditions on the land, but to activities which occur
on the land as well.
Kessler at 8 (footnotes and citations omitted, emphasis
added). In reaching this conclusion, the district court
relied on James v. Alberts, 464 Mich. 12, 626 N.W.2d 158
(2001), Pelzner v. Meijer, Inc., 2002 WL 1275509 (Mich.App.
June 4, 2002) (unpublished, per curiam), and the
Restatement. We shall address each in turn.
In James, the Michigan Supreme Court held that it no
longer recognized the volunteer doctrine.[fn1] 626 N.W.2d
at 162. To guide the lower court on remand, the court
noted:
the present case is a premises liability action. James’
claim is that he was injured by a condition of the land.
The alleged injury occurred while he and Alberts were
digging the trench; however, James contends that it arose
out of a condition of the land, not out of the activity
itself. In his complaint, James alleges that Alberts
breached his duties as a landowner.
626 N.W.2d at 162. The district court, in the case at bar,
interpreted this language in a footnote and concluded that:
Nowhere does the Court rule that the analysis is
different when a injury occurs from an activity rather
than a condition of the land. To the contrary, the
Michigan Supreme Court has adopted § 343A of the
Restatement which expressly states that the open and
obvious doctrine applies to activities on a landowner’s
land as well as conditions on the land. . . . Finally,
Plaintiff’s pleading of “ordinary negligence” does not
change the result that the incident occurred on
Defendant’s property.
Kessler at 8 n. 5 (citations omitted). We disagree.
The purpose of the quoted language in James was to guide
the lower court’s analysis towards premises liability where
it otherwise might assume that ordinary negligence was
implicated. Since the injury resulted from an activity of
the defendant, the trial court might have simply assumed
Page 333 that a duty of due care was owed and used those
principles to settle the dispute. To avoid this conclusion,
and to respect the plaintiff’s position as the “master of
his complaint,” see Ernst v. Rising, 427 F.3d 351, 356 (6th
Cir. 2005) (en banc), the Michigan Supreme Court used the
conjunction “however” to introduce the premises liability
element and limit the assumption that the theory was
ordinary negligence. The court was not instructing that
ordinary negligence claims cannot proceed when the
defendant’s negligence occurs on his own land. To the
contrary, it was merely highlighting the duty that James
alleged was breached. Further, the Michigan Supreme Court
notes that James’s allegation is that Alberts “breached his
duties as a landowner” — not as a trench-digger.
The district court next relies on § 343A of the
Restatement to conclude that “the open and obvious doctrine
applies not only to conditions on the land, but to
activities which occur on the land as well.” That section
of the Restatement states:
(1) A possessor of land is not liable to his invitees for
physical harm caused to them by any activity or condition
on the land whose danger is known or obvious to them,
unless the possessor should anticipate the harm despite
such knowledge or obviousness.
The district court erred here by not reading § 343A
as being in pari materia with the rest of the Restatement.
When evaluating the scope of § 343A, we note that it
is located in a chapter entitled “Liability For Condition
And Use Of Land” and in a sub-topic entitled “Special
Liability Of Possessors Of Land To Invitees.” In contrast,
the definition of negligence in § 282 resides in a
section entitled “General Principles.” In our reading of
the Restatement, “General Principles” are not modified by
“Special Liability,” but are supplemented by them. It is
this special liability that needs further explanation
because there need not be any action by the landowner to
incur liability. The district court’s reading, however,
erroneously promotes the special liability of a premises
owner to a general principle.
The district court placed its heaviest reliance on Pelzner
v. Meijer, Inc., an unreported, per curiam opinion of the
Court of Appeals. No. 230448, 2002 WL 1275509 (Mich.App.
June 4, 2002). In Pelzner, the court held that the
defendant was not liable for injuries caused when its
employee injured a customer while pushing a train of
shopping carts because the hazard was open and obvious. Id.
at *2. The court held that neither Meijer nor their
employee owed any duty to the plaintiff. Id. at *1. The
court relied on Lugo, Bertrand, and Riddle, supra, for this
holding. The Pelzner court was in error and was
subsequently corrected by the Court of Appeals in Laier v.
Kitchen, 266 Mich.App. 482, 702 N.W.2d 199, 205 (2005).
Laier overruled Pelzner. See Tebo v. Havlik, 418 Mich. 350,
343 N.W.2d 181, 185 (1984) (decision by panel of the Court
of Appeals is controlling statewide until contradicted by
another panel or reversed or overruled by the Michigan
Supreme Court). See also White v. Ins. Co. of State of Pa.,
405 F.3d 455, 458 (6th Cir. 2005) (applying decision filed
after district court’s judgment to case pending on appeal).
In Laier, the court held that “the open and obvious danger
doctrine is inapplicable to [] ordinary negligence
claim[s].” Laier, 702 N.W.2d at 204. Laier was killed when
the bucket of a front-end loading tractor crushed him
during an attempted repair conducted on the property of the
defendant. Id. at 204-05. The ensuing wrongful death action
alleged defendant’s negligence. Id. at 205. The trial court
granted summary disposition, holding that the landowner had
no duty with regard to Page 334 open and obvious dangerous
activity conducted on his land. Ibid. The Court of Appeals
reversed, “because the trial court and the parties failed
to recognize ordinary negligence as a theory of recovery
separate from premises liability.” Id. at 213 (Hoekstra,
P.J., concurring). The rule in Laier is that when a claim
“sounds in ordinary negligence . . . the open and obvious
danger doctrine is inapplicable to such a claim.” Ibid.
Laier has been recognized by both the Michigan and federal
courts for this proposition. See Henderson v. Hammer Bldg.
& Restoration, Inc., 2005 WL 3234906 (2005); Summers v.
Carter’s Inc., 2005 WL 2372075 (2005); Walker v. Eagle
Press & Equip. Co., 2005 WL 2072083 (E.D.Mich. Aug.26,
2005).
In addition, the district court found that Kessler’s
reliance on Dooley v. Northwest Airlines, Inc., 2002 WL
31235765 (E.D.Mich. Sept.13, 2002), was misplaced. Although
the factual situation in that case was not directly
analogous to the one faced in the case at bar, we believe
that the law was accurately described when the Dooley court
declined the defendant’s invitation “to further expand the
open and obvious doctrine to encompass ordinary
negligence.” Id. at *6. In Dooley, the plaintiff asserted
ordinary negligence claims against Northwest after he was
hit by a Northwest vehicle operating near an airport
terminal. Id. at *1. The Dooley court held that a defense
of open and obvious was inapplicable where the plaintiff
was not injured on Northwest’s property, id. at *4, and was
also correct when it noted that “Michigan law only appears
to apply the [open and obvious] doctrine in the limited
areas listed above[, premises and products liability]” and
not in ordinary negligence. Id. at *5.
We note, however, that even if Laier had not been decided,
we would still hold that Pelzner is in error for two
reasons. First, the great weight of cases demonstrates that
the open and obvious exception is to be applied to premises
liability theories only and there exists an almost complete
lack of cases relying on the theory of the holding in
Pelzner. Second, the Michigan Supreme Court has stated a
vision of social policy that is fundamentally at odds with
the holding in Pelzner. This policy requires that the open
and obvious exception be confined to premises and products
liability theories. Pelzner, and one other case filed
subsequently, but before the judgment in Kessler, Jacob v.
Cont’l Lanes, Inc., 2004 WL 405889 (Mich.App. Mar.4, 2004)
(finding no duty where employee collided with customer),
stand alone as authority for the extension of the open and
obvious doctrine to claims of ordinary negligence. Neither
is a published case, so neither has any binding force in
Michigan courts. See Mich. C.R. 7.215(C)(1) (unpublished
opinion is not precedentially binding). Although the
doctrine has been extended in a reported case to an injury
caused by a loose dog, see Klimek v. Drzewiecki, 135
Mich.App. 115, 352 N.W.2d 361, 363-64 (1984), the open and
obvious exception has been applied only in premises
liability in the vast majority of cases.[fn2] Therefore,
even in the absence Page 335 of Laier, we would be
hesitant to use the open and obvious exception to defeat a
claim based upon a theory of ordinary negligence. A
possibility for the unraveling of numerous ordinary
negligence suits (e.g., Dooley), the unnatural reading of
the Restatement, and the lack of any reported cases
applying the doctrine in this new fashion all counsel
against Visteon’s proposed expansion of the doctrine.
Finally, we note that the policy considerations guiding
decisions of the Michigan Supreme Court would be
effectively undermined by an extension of the open and
obvious doctrine into the area of ordinary negligence.
Illustrative of this concern, a recent unanimous decision
of the Michigan Supreme Court held that the duty of a
general contractor on a job site under the common work area
doctrine is not limited by the open and obvious doctrine.
Ghaffari v. Turner Const. Co., 473 Mich. 16, 699 N.W.2d
687, 689 (Mich. 2005). The Ghaffari court considered
whether the open and obvious exception should apply to
injuries received on a construction site. Id. at 689. Under
Michigan law, a construction site is subject to a special
rule, the common work area doctrine:
At common law, property owners and general contractors
generally could not be held liable for the negligence of
independent subcontractors and their employees. However,
in Funk v. Gen. Motors Corp., this Court departed from
this traditional framework and set forth an exception to
the general rule of nonliability in cases involving
construction projects:
We regard it to be part of the business of a general
contractor to assure that reasonable steps within its
supervisory and coordinating authority are taken to guard
against readily observable, avoidable dangers in common
work areas which create a high degree of risk to a
significant number of workmen.
* * * * * *
Placing ultimate responsibility on the general contractor
for job safety in common work areas will, from a
practical, economic standpoint, render it more likely that
the various subcontractors being supervised by the general
contractor will implement or that the general contractor
will himself implement the necessary precautions and
provide the necessary safety equipment in those areas.
Id. at 689-90 (citing Funk, 392 Mich. 91, 220 N.W.2d 641
(1974)). The common work area doctrine is reserved only for
construction sites because “there exist unique and distinct
attributes of the construction Page 336 setting that would
make the rules applicable in the typical premises liability
setting inappropriate.” Id. at 694. The Ghaffari court
held:
[T]he two doctrines at issue [i.e., common work area and
open and obvious] are independent of and distinct from one
another. The open and obvious doctrine serves as an
“integral part of the definition” of the duty a premises
possessor owes invitees, see Lugo, while the common work
area doctrine “is an exception to the general rule of
nonliability for the negligent acts of independent
subcontractors and their employees,” under which “an
injured employee of an independent subcontractor [may] sue
the general contractor . . .”
[W]e hold that the open and obvious doctrine has no
applicability to a claim under the common work area
doctrine, and therefore the trial court erred in granting
summary disposition in favor of defendants on the basis
that the pipes at issue were an open and obvious hazard.
Id. at 694-95 (citing Lugo, 464 Mich. 512, 629 N.W.2d 384).
In reaching this conclusion the court discussed the policy
behind both doctrines. We think that it appropriately
encapsulates the problematic extension of the open and
obvious doctrine in the case at bar:
The adoption of the open and obvious doctrine in the
general contractor setting would tend to thwart the goals
of workplace safety advanced by our decisions . . . If we
were to adopt the rule set forth below . . . we would
effectively return to a contributory negligence regime. In
such a case, no matter how negligent the general
contractor was in creating or failing to ameliorate the
hazard, the employee would be barred from recovery because
the hazard was open and obvious.
[We] recognized that such bars to recovery “provide a
strong financial incentive [] to breach the duty to
undertake reasonable safety precautions.” Indeed, such a
rule might lead to a paradoxical result — the more
egregious (i.e., obvious) the safety violation, the less
incentive the contractor would have to ameliorate the
hazard, because of the knowledge that obviousness of the
hazard would bar [his] liability for the resulting injury.
Ghaffari, 699 N.W.2d at 693. An expansion of the open and
obvious doctrine into the realm of ordinary negligence
undermines the policy goal of placing responsibility for
accidents with those who are in the best position to
prevent them.
IV
A
We now examine what duty Visteon owed Kessler by virtue of
owning the Utica plant and the nature of the activities
conducted there — whether the district court
properly dismissed Kessler’s premises liability claim by
finding that the open and obvious nature of the hazard
obviated any duty Visteon might have owed, as a property
owner, to Kessler. To reiterate, Visteon’s duty of care as
a possessor of the land is limited.
The largest single area in which the concept of “duty”
has operated as a limitation upon liability has concerned
owners and occupiers of land. . . . This development has
occurred for the obvious reason that the person in
possession of property ordinarily is in the best position
to discover and control its dangers, and often is
responsible for creating them in the first place.
Prosser & Keeton § 57. For purposes of premises
liability, Michigan courts recognize three common-law
categories: trespasser, Page 337 licensee, and invitee.
James v. Alberts, 464 Mich. 12, 626 N.W.2d 158, 162 (2001).
A landowner’s duty to a visitor depends upon that visitor’s
status. Stitt v. Holland Abundant Life Fellowship, 462
Mich. 591, 614 N.W.2d 88, 91 (2000). The parties and the
district court in this case agree that Kessler should be
categorized as an invitee. “An `invitee’ is `a person who
enters upon the land of another upon an invitation which
carries with it an implied representation, assurance, or
understanding that reasonable care has been used to prepare
the premises, and make [it] safe for [the invitee’s]
reception.'” Stitt, 614 N.W.2d at 92 (citations omitted).
Where the visitor is an invitee,
[t]he landowner has a duty of care, not only to warn the
invitee of any known dangers, but the additional
obligation to also make the premises safe, which requires
the landowner to inspect the premises and, depending upon
the circumstances, make any necessary repairs or warn of
any discovered hazards. Thus, an invitee is entitled to
the highest level of protection under premises liability
law.
Ibid. (citations omitted).
However, the duty of a landowner to his invitees has clear
limits. A landowner does not owe a duty to invitees where
the dangers “are so obvious and apparent that an invitee
may be expected to discover them himself.” Riddle v.
McLouth Steel Prods. Corp., 440 Mich. 85, 485 N.W.2d 676,
680 (Mich. 1992). Under such a condition, our negligence
analysis is at an end — if there is no duty, then no
matter the standard of care, causation or harm, no
negligence can lie. The interaction between the open and
obvious exception and the duty owed to invitees has been
described in this way:
[T]he “no duty to warn of open and obvious danger” rule
is a defensive doctrine that attacks the duty element that
a plaintiff must establish in a prima facie negligence
case. A negligence action may only be maintained if a
legal duty exists which requires the defendant to conform
to a particular standard of conduct in order to protect
others against unreasonable risks of harm. If the
plaintiff is a business invitee, the premises owner has a
duty to exercise due care to protect the invitee from
dangerous conditions. However, where the dangers are known
to the invitee or are so obvious that the invitee might
reasonably be expected to discover them, an invitor owes
no duty to protect or warn the invitee unless he should
anticipate the harm despite knowledge of it on behalf of
the invitee.
Id. at 681 (citations omitted); see also Restatement
(Second) of Torts § 341A. But cf. Lugo v. Ameritech
Corp., Inc., 464 Mich. 512, 629 N.W.2d 384, 393 (2001)
(Cavanagh, J., concurring) (believing the majority opinion
to be in error and that § 341 and prior Michigan
cases refer not to duty, but to the applicable standard of
care). “Accordingly, the open and obvious doctrine should
not be viewed as some type of `exception’ to the duty
generally owed invitees, but rather as an integral part of
the definition of that duty.” Lugo, 629 N.W.2d at 386. If
the court finds that, as a matter of law, there is no duty
owed, that negligence claim must be dismissed.
The Michigan Supreme Court considered the application of
the open and obvious exception in two incidents involving
accidents befalling customers on the steps of the
businesses they patronized. Both actions were combined in
one case, Bertrand v. Alan Ford, Inc., 449 Mich. 606, 537
N.W.2d 185, 188 (1995). In Bertrand the court seized upon
those dangers that could be considered unreasonable and
held that the open and obvious exception should Page 338
not operate to eliminate a duty in those circumstances:
With the axiom being that the duty is to protect invitees
from unreasonable risks of harm, the underlying principle
is that even though inviters have a duty to exercise
reasonable care in protecting their invitees, they are not
absolute insurers of the safety of their invitees.
Consequently, because the danger of tripping and falling
on a step is generally open and obvious, the failure to
warn theory cannot establish liability. However, there may
be special aspects of these particular steps that make the
risk of harm unreasonable, and, accordingly, a failure to
remedy the dangerous condition may be found to have
breached the duty to keep the premises reasonably safe.
Ibid. (emphasis added). Applying this rule, the court found
the exception applied to negate any duty where the injured
plaintiff tripped on a restroom step because she “failed to
see it.” Id. at 191. Because “[t]he plaintiff failed to
establish anything unusual about the step . . . the
plaintiff has not presented any facts that the step posed
an unreasonable risk of harm.” Ibid.
In the second case, the plaintiff fell while waiting to
have her car serviced. To reach the cashier, she needed to
navigate a narrow passage between a door and a set of
vending machines. While doing this, she fell. Id. at
191-92. The court held that the premises “may be
unreasonably dangerous.” Id. at 192. When considering the
condition of the land, the court found a “genuine issue
regarding whether the construction of the step, when
considered with the placement of the vending machines and
the cashier’s window, along with the hinging of the door,
created an unreasonable risk of harm, despite the
obviousness or the invitee’s knowledge of the danger of
falling off the step.” Ibid.
In the light most favorable to the plaintiff, one can
reasonably argue that the defendant should have reasonably
anticipated a congested pedestrian traffic pattern causing
an invitee to fall off the step.
We cannot find as a matter of law that the risk of harm
was reasonable. Because a genuine issue existed regarding
whether the defendant breached its duty to protect the
plaintiff against an unreasonable risk of harm, in spite
of the obviousness or of the plaintiff’s knowledge of the
danger, summary disposition was inappropriate. Whether
this risk of harm was unreasonable and whether the
defendant breached a duty to exercise reasonable care by
failing to remedy the danger are issues for the jury to
consider.
Id. at 193 (emphasis in original). Under this standard, we
must apply the rules of summary judgment to our evaluation
of the unreasonableness of the danger presented to decide
if it is proper to eliminate the duty of the defendant and
deny any recovery to the plaintiff. See Howe v. Detroit
Free Press, Inc., 219 Mich.App. 150, 555 N.W.2d 738, 741
(1996) (where factual circumstances give rise to duty, the
existence of those facts must be determined by a jury).
Noting a clear distinction between Bertrand and this case,
Kessler argues that the open and obvious exception should
only be applied to relieve a premises owner of a duty of
due care where the danger is a condition on the land and
not an activity conducted on it. We cannot agree. Although
all controlling Michigan Supreme Court precedent (Lugo,
Bertrand, James, and Riddle, supra) arose from facts that
allege dangerous conditions on the land, (viz., a pothole,
steps, buried cable, and Page 339 slippery floors) those
cases lead us to the inexorable conclusion that, if the
Michigan Supreme Court had occasion to consider the issue,
it would hold that § 343A applies to activities as
well as conditions on the land. See Kingsley Assocs., Inc.
v. Moll PlastiCrafters, Inc., 65 F.3d 498, 507 (6th Cir.
1995) (where the Michigan Supreme Court has not considered
the issue we must predict its ruling).
The district court relied on the Michigan Supreme Court’s
comfort with the language of § 343A of the
Restatement and held that the open and obvious exception
applies to both activities and conditions on the land. “A
possessor of land is not liable to his invitees for
physical harm caused to them by any activity or condition
on the land whose danger is known or obvious to them,
unless the possessor should anticipate the harm despite
such knowledge or obviousness.” Kessler at 6 (quoting
Restatement (Second) of Torts § 343A). This
statement is reinforced by Bertrand where the court stated
that, “§ 343A applies in Michigan.” 537 N.W.2d at
187.
Kessler lists a number of cases purporting to show that
Michigan premises liability law supports a distinction
between activities and conditions on the land.
Specifically, James v. Alberts, 464 Mich. 12, 626 N.W.2d
158, 162 (2001), provides no support for this contention.
The court in James merely acknowledges the distinction
between two theories of negligence, premises liability and
simple negligence. The James court never discusses, or
mentions, the open and obvious exception in its discussion
of premises liability. Id. at 162-63. Madley v. The Evening
News Ass’n, 167 Mich.App. 338, 421 N.W.2d 682, 685 (1988),
is similarly unhelpful. Again, the open and obvious
doctrine is never implicated or discussed. Additionally,
the accident there was on a city street, not on the
defendant’s property, and any statement by the court
construing the scope of an exception to premises liability
is clearly dicta. Lastly, Stanton v. City of Battle Creek,
466 Mich. 611, 647 N.W.2d 508, 512 (2002), is a case
concerning exceptions that apply to the doctrine of
governmental immunity, not premises liability.
Visteon relies on Millikin v. Walton Manor Mobile Home
Park, Inc., 234 Mich. App. 490, 595 N.W.2d 152, 155 (1999),
for the proposition that the open and obvious doctrine
applies to both activities and conditions on the land.
Millikin does clearly evince support of the Restatement
when it says that, “[a] possessor of land is not liable to
his invitees for physical harm caused to them by any
activity or condition on the land whose danger is known or
obvious to them,” 595 N.W.2d at 155 (quoting Riddle, 440
Mich. 85, 485 N.W.2d 676 at 681) (emphasis in Millikin, not
in Riddle). Again, in Riddle, although not faced with facts
that required it adoption, the Michigan Supreme Court
quoted from the Restatement and noted that it “correctly
define[d] the law regarding a premises owner’s duty of care
to invitees.” 485 N.W.2d at 681.
B
Most recently, the Michigan Supreme Court considered the
open and obvious doctrine in Lugo v. Ameritech Corp.,
Inc., 464 Mich. 512, 629 N.W.2d 384 (2001). There, the
court held:
In sum, the general rule is that a premises possessor is
not required to protect an invitee from open and obvious
dangers, but, if special aspects of a condition make even
an open and obvious risk unreasonably dangerous, the
premises possessor has a duty to undertake reasonable
precautions to protect invitees from that risk.
* * * * * * Page 340
Consistent with Bertrand, we conclude that, with regard
to open and obvious dangers, the critical question is
whether there is evidence that creates a genuine issue of
material fact regarding whether there are truly “special
aspects” of the open and obvious condition that
differentiate the risk from typical open and obvious risks
so as to create an unreasonable risk of harm, i.e.,
whether the “special aspect” of the condition should
prevail in imposing liability upon the defendant or the
openness and obviousness of the condition should prevail
in barring liability.
Id. at 386-87. Accordingly, we evaluate the results of the
reasonableness investigation specified in Bertrand in light
of the summary judgment standard.
The Lugo court offered some examples of “special aspects.”
A risk that is unavoidable, such as the sole exit of a
store that is covered with standing water, making the
condition “effectively unavoidable,” presents special
aspects. Id. at 387. Or, “an unguarded thirty foot deep pit
in the middle of a parking lot.” Ibid. The danger of
falling in the pit presents a risk of injury so severe that
maintaining it without warning or protective measures
becomes unreasonable. A common pothole, in contrast, does
not “give rise to these special aspects.” Id. at 388. It is
open and obvious and does not present any special aspects
to rebut the open and obvious exception to premises
liability. “In sum, only those special aspects that 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.” Ibid.
(emphasis added). Finally, according to the Lugo court:
[T]his “special aspects” inquiry serves to concretely
focus trial courts on the showing that must be made in
evaluating motions for summary disposition in this
context. In our view, this approach is consistent with
§ 343A of the Restatement, which indicates that a
possessor of land is only liable to invitees for harm
caused by an obvious condition if the possessor should
“anticipate the harm.” Simply put, there must be something
out of the ordinary, in other words, special, about a
particular open and obvious danger in order for a premises
possessor to be expected to anticipate harm from that
condition.
Id. at 390.
In evaluating Kessler’s premises liability claim, the
district court correctly located the applicable law in Lugo
and understood that it “must determine whether the danger
was open and obvious” and if so, that it must “consider
whether the evidence presented creates a genuine issue of
material fact as to whether there are `special aspects’ of
the danger that should prevail in imposing [a duty] on the
defendant.” Kessler at 7. The district court, in this
analysis, considered Lugo — where the parking lot
pothole was open and obvious and the plaintiff had created
no issue of material fact as to whether the common pothole
possessed any special aspects of danger. The district court
noted that in the two situations considered by Bertrand,
one presented an issue sufficient to survive summary
judgment and was properly an issue for the jury to
consider. Kessler at 10 (citing Bertrand, 537 N.W.2d at
193). Yet, the district court granted summary judgment on a
set of facts we find to be far more complex and potentially
dangerous than the step in Bertrand. Here, the district
court held:
[T]he forklift’s only possible “special aspect,” its
potential for severe harm, was known to [Kessler] and
should have been known. Just as the danger of walking
behind a moving forklift was Page 341 open and obvious,
so was the severeness [sic] of the danger. A cause of
injury is not removed from the open and obvious doctrine
where the “special aspect” should have been known to the
plaintiff. Therefore Defendant’s motion for summary
judgment is granted and this case is dismissed.
Id. at 12. The conclusion of the district court requires
reversal for two reasons. First, it improperly analyses the
special aspects of the danger confronted by Kessler, and
secondly, it negates any significant factor contributing
toward a finding of special aspects by considering
Kessler’s subjective knowledge of the danger.
A diligent reading of Lugo, and a survey of the cases
presented by both Kessler and Visteon, are convincing
evidence that the district court wrongly granted summary
judgment where Kessler has created a genuine issue of
material fact as to whether the situation on the loading
dock that day was unreasonably dangerous. In Lugo, special
aspects are those characteristics of a danger that make the
risk of harm unreasonable. 629 N.W.2d at 390-91 (“if an
open and obvious condition lacks some type of special
aspect regarding the likelihood or severity of harm that it
presents, it is not unreasonably dangerous”). Lugo provides
an illustration: a puddle of standing water adjacent to a
door that makes traversing it, “effectively unavoidable,”
presents special aspects. Id. at 387. Here, there is enough
evidence in the record to create a material issue of fact
as to whether Kessler could have “effectively avoid[ed]” an
encounter with a PMHV. It is undisputed in the record that
Kessler had unrestricted movement in the Utica plant and
that conditions in the plant were constantly changing, with
PMHVs mixing with pedestrian traffic. Applying this
example, the district court should have recognized a set of
facts that could be considered special aspects.
The second example in Lugo is of a thirty-foot-deep pit.
Ibid. This example, according to the court, serves to
illustrate a situation presenting special aspects because of
its substantial risk of death or severe injury.
Accordingly, in this record, there is undisputed evidence
of a number of PMHV injuries occurring at Visteon plants,
many leading to severe injury. Thus, a jury could
reasonably conclude, and the district court ignored the
fact, that a thirty-foot fall might equal in severity a
collision with an PMHV. As a third example, we believe that
the factual situation in the case at bar is more hazardous
than the corridor and vending machine combination in
Bertrand that was held to be unreasonably dangerous, 537
N.W.2d at 193, a conclusion that was nowhere disputed in
Lugo.
We further note that other circumstances in premises
liability claims have been held to present special aspects
that also appear far less dangerous than the situation
described in the instant case. Situations found to contain
special aspects include: falling through a roof after
stepping upon an eave that collapses, Hughes v. PMG Bldg.,
Inc., 227 Mich.App. 1, 574 N.W.2d 691, 696 (1997); slipping
and falling on a spill in a supermarket aisle, Osontoski v.
Wal-Mart Stores, Inc., 143 F.3d 1027, 1028 (6th Cir. 1998)
(analysis under Bertrand); and falling from a roof while
repairing it, Hottmann v. Hottmann, 226 Mich.App. 171, 572
N.W.2d 259, 262 (1997).
Conversely, the situations found not to contain special
aspects are far more mundane than those presented in the
instant case. These include, walking into a fixed and
immovable guy wire, Millikin v. Walton Manor Mobile Home
Park, Inc., 234 Mich.App. 490, 595 N.W.2d 152, 157 (1999);
tripping into an ordinary pothole, Lugo, supra; falling
over a wheelchair access Page 342 ramp, Novotney v. Burger
King Corp., 198 Mich.App. 470, 499 N.W.2d 379, 380 (1993);
and slipping on snow and ice, Buckenmeyer v. Office Max,
Inc., 2003 WL 22399511 (Mich.App. Oct.21, 2003)
(unreported, per curiam), but see Mann v. Shusteric
Enters., Inc., 470 Mich. 320, 683 N.W.2d 573, 579 (2004)
(noting that accumulations of ice and snow can present
special aspects).
In looking to these examples, we further note that
Visteon’s own training videotapes included the statement,
“To do this job, you have to operate your vehicle in a
space that’s also occupied by pedestrians and other
vehicles. Your ability to safely control your vehicle and
the load you’re transporting is sometimes the one factor
that can prevent a potentially hazardous situation from
turning into a disaster” (emphasis supplied).
Accordingly, we hold that summary judgment was here
improper where there exists a genuine issue of material
fact as to whether or not the operation of PMHVs on the
Utica plant’s loading dock on the day in issue was
unreasonably dangerous. Assuming, arguendo, that the
activity was open and obvious, the determination was
properly a question for the jury.
Because a genuine issue existed regarding whether the
defendant breached its duty to protect the plaintiff
against an unreasonable risk of harm, in spite of the
obviousness or of the plaintiff’s knowledge of the danger,
summary disposition was inappropriate. Whether this risk
of harm was unreasonable and whether the defendant
breached a duty to exercise reasonable care by failing to
remedy the danger are issues for the jury to consider.
Bertrand, 537 N.W.2d at 193. See also Lugo, 629 N.W.2d at
387 (“the critical question is whether there is evidence
that creates a genuine issue of material fact regarding
whether there are truly `special aspects’ of the open and
obvious condition that differentiate the risk from typical
open and obvious risks so as to create an unreasonable risk
of harm”).
V
We think it appropriate to provide a guide to the correct
application of Kessler’s subjective knowledge of the
conditions at the Utica plant. First, it is proper to use
Kessler’s subjective knowledge of the plant as a factor in
concluding that the danger posed by the PMHV was open and
obvious. The district court was correct when it noted that:
Plaintiff is an experienced truck driver, having driven
tractor-trailers since he was 21 years old. For five days
a week, three to four weeks prior to the incident,
Plaintiff had been on dedicated run. . . . was admittedly
familiar with the dock and loading operations; namely that
forklifts operated in the dock. . . . Given Plaintiff’s
background and experience . . . there can be no question
Plaintiff understood the dangers presented by walking in
the loading dock behind a moving forklift.
Kessler at 10-11. This evidence and analysis is proper where
it is used to establish that the danger was open and
obvious. See Riddle, 485 N.W.2d at 681 (defining open and
obvious as including “where the dangers are known to the
invitee”) (emphasis supplied). We also note that another
factor the district court could properly weigh in its
analysis is that Kessler’s experience might inform him that
proper PMHV operation requires that the driver always face
the direction of travel.
However, using Kessler’s knowledge to evaluate the special
aspects of the danger presented by PMHVs on the loading
dock would be incorrect. In Lugo, the Michigan Supreme
Court makes clear that when evaluating a danger for special
aspects, it is the condition of the premises that is at
issue, nothing else. 464 Mich. 512, 629 N.W.2d 384, 390
(2001). So, “the fact that Page 343 the plaintiff was also
negligent would not bar a cause of action.” Ibid. “[I]t is
important for courts in deciding summary disposition
motions by premises possessors in `open and obvious’ cases
to focus on the objective nature of the condition of the
premises at issue, not on the subjective degree of care
used by the plaintiff”. Ibid. See also Mann v. Shusteric
Enters., Inc., 470 Mich. 320, 683 N.W.2d 573, 577 (2004)
(concluding that while investigating both open and obvious
and special aspects conditions, fact-finder must consider
the condition of the premises, not the condition of the
plaintiff.). Therefore, it would be error to conclude that
operation of PMHVs in a pedestrian occupied area does not
present special aspects because the “potential for severe
harm, was known to the Plaintiff.” Kessler at 12.
VI
For the reasons stated above, we REVERSE the district
court’s entry of summary judgement and REMAND for further
consideration not inconsistent with this opinion.
[fn1] The volunteer doctrine bars recovery from a servant’s
master where the servant’s negligence injures one who
voluntarily assists him.
[fn2] Some recent examples: Mann v. Shusteric Enters., 470
Mich. 320, 683 N.W.2d 573 (2004) (ice); Teufel v. Watkins,
267 Mich.App. 425, 705 N.W.2d 164 (2005) (snow and ice);
Stopczynski v. Woodcox, 258 Mich.App. 226, 671 N.W.2d 119
(2003) (swimming pool); Joyce v. Rubin, 249 Mich.App. 231,
642 N.W.2d 360 (2002) (snow and ice); Corey v. Davenport
Coll. of Bus., 251 Mich.App. 1, 649 N.W.2d 392 (2002)
(slippery steps); Millikin v. Walton Manor Mobile Home
Park, Inc., 234 Mich.App. 490, 595 N.W.2d 152 (1999) (guy
wire); Hughes v. PMG Bldg., Inc., 227 Mich. App. 1, 574
N.W.2d 691 (1997) (collapsing roof); Hottmann v. Hottmann,
226 Mich.App. 171, 572 N.W.2d 259 (1997) (collapsing roof);
Novotney v. Burger King, 198 Mich.App. 470, 499 N.W.2d 379
(1993) (wheelchair ramp); Burton v. Duran, 2005 WL 3304150
(Mich.App. Dec.6, 2005) (collapsing roof); Zelenko v.
Stites, 2005 WL 3179516 (Mich.App. Nov. 29, 2005) (tree
branch); Robertson v. Blue Water Oil Co., 2005 WL 2995676
(Mich.App. Nov.8, 2005) (ice); Summers v. Carter’s Inc.,
2005 WL 2372075 (Mich.App. Sep.27, 2005) (plastic wrap);
Brooks v. Burger King Corp., 2005 WL 1489488 (Mich.App.
June 23, 2005) (pothole, wild dogs!); Bizyk v. Joe
Randazzo’s Fruit & Vegetable, Inc., 2005 WL 387550
(Mich.App. Feb.17, 2005) (stack of boxes); Barrett v. Disc.
Tire & Battery, 2004 WL 1908335 (Mich.App. Aug.26, 2004)
(jack handle); Emmons v. Harden Acres, LLC, 2004 WL 1672435
(Mich.App. July 27, 2004) (ice); Huber v. Jo-Ann Stores,
Inc., 2004 WL 1621694 (Mich.App. July 20, 2004) (floor
mat); Knoll v. General Motors Corp., 2004 WL 512230
(Mich.App. Mar.16, 2004) (step/curb); Buckenmeyer v. Office
Max, Inc., 2003 WL 22399511 (Mich.App. Oct.21, 2003) (ice);
Vavrick v. Bill’s Auto., 2003 WL 1904350 (Mich.App. Apr.17,
2003) (cracked pavement); Morgan v. Makowski, 2003 WL
462535 (Mich.App. Feb.21, 2003) (tree sap); Vandall v. Post
Elec. Co., 1997 WL 33330692 (Mich.App. Dec.19, 1997)
(subsidence); Osontoski v. Wal-Mart Stores, Inc., 143 F.3d
1027 (6th Cir. 1998) (spill).