Slip Fall open and obvious

Issues: Premises liability; Slip and fall on "floral debris"; Whether there was a genuine issue of material fact that an "open and obvious" condition caused the plaintiff's fall; Lugo v. Ameritech Corp.; Bertrand v. Alan Ford, Inc.; Whether there were "special aspects" giving rise to a "uniquely high likelihood" of harm

Court: Michigan Court of Appeals (Unpublished)

Case Name: Preston v. Loving Care Flowers, Inc.

e-Journal Number: 50398

Judge(s): Per Curiam – Wilder, Talbot, and Servitto

Holding that there was no genuine issue of material fact that the condition causing the plaintiff's fall was open and obvious, and contained no special aspects giving rise to a uniquely high likelihood of harm, the court reversed the trial court's order granting in part plaintiff's motion for reconsideration. Plaintiff was invited into a back office at the defendant-flower shop for a business meeting with the shop's owner. To reach the office, he had to walk through a work room where floral arrangements were made. Plaintiff stated that there was nothing on the floor when he walked to the office. However, when he tried to leave after a 30 to 45-minute meeting, he saw that the floor was covered in "floral debris." He slipped and fell as he tried to walk through the space, and sustained a torn rotator cuff. Defendant moved for summary disposition, arguing that the condition that caused the fall was open and obvious, with no special aspects that removed it from the open and obvious doctrine. The trial court initially granted defendant summary disposition, but on plaintiff's motion for reconsideration, determined that a question of fact existed as to whether the condition contained a special aspect such that defendant could be liable. Plaintiff testified at deposition that it appeared there were leaves, petals, and stems "scattered all over" the floor as he retraced his route to leave the building, so he tried to watch his step, but he slipped and fell. "Plaintiff testified that he did not ask anyone to remove the debris from his path and that he ‘didn't really consider' going around the work bench the opposite way but instead retraced his steps the way he entered the business." He also provided an affidavit in which he swore that he could not have avoided the debris no matter which way he walked around the work bench. Taking plaintiff's assertions as true, the court concluded that defendant was entitled to summary disposition, for two reasons. "First, plaintiff clearly admitted to seeing the floral debris and further indicated that two employees were present and near him when he fell. Plaintiff could easily have asked the employees to remove the debris or for assistance in navigating around it, but did neither." The court concluded that if he was effectively "trapped" by the debris, it was "reasonable to place a duty upon him to ask for readily available assistance before attempting to navigate over the hazard." Second, "the critical inquiry in Lugo 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 . . . .'" The court held that floral debris "on the floor near the workstation of a floral shop is a ‘typical' open and obvious danger, like a typical pothole in a parking lot. There is nothing unusual about the presence of floral debris in that setting and, more importantly, nothing suggests that the debris at issue created an unreasonable risk of harm despite its open and obviousness." Reversed and remanded.