Novotney v. Burger King Corp.

ON REMAND

Before: Sawyer, P.J., and Michael J. Kelly and Murphy, JJ. Sawyer, P.J.

This matter is before us for decision a third time, now on remand by the Supreme Court. Plaintiffs initially appealed from an order of the circuit court granting summary disposition in favor of defendants under MCR 2.116(0(10) (no genuine issue of material fact). We affirmed in an unpublished opinion per curiam, decided October 3, 1990 (Docket No. 116731), by a two-to-one decision. Thereafter, plaintiffs moved for rehearing, and this Court granted rehearing in a two-to-one decision. On rehearing, this Court reversed the grant of summary disposition. Novotney v Burger *472 King Corp (On Rehearing), 188 Mich App 705; 470 NW2d 93 (1991). Thereafter, the Supreme Court remanded the matter to us for reconsideration in light of Riddle v McLouth Steel Products Corp, 440 Mich 85; 485 NW2d 676 (1992). 441 Mich 897 (1992). In light of Riddle, we again affirm the grant of summary disposition in favor of defendants.

Plaintiff Luella Novotney fell at defendants’ restaurant when she stepped from a sidewalk onto an inclined, handicap access ramp. According to Novotney, she did not expect the incline and had anticipated stepping onto a flat surface level with the sidewalk she was stepping from. The unexpected incline caused her to fall, and, as a result, she has allegedly suffered injury. In our original opinion, we held that a possessor of land does not owe a duty to invitees with respect to conditions that are so obvious and apparent that an invitee may be expected to discover them himself. We concluded that there was no genuine issue of material fact concerning the ramp’s open and obvious nature.1 On rehearing, this Court concluded that the doctrine concerning open and obvious dangers did not survive the adoption of comparative negligence and, therefore, summary disposition was inappropriate. Novotney (On Rehearing), supra.2

In Riddle, the Supreme Court discussed the continued viability of the doctrine of open and obvious dangers in light of the adoption of comparative negligence. The Supreme Court concluded *473 that this Court "incorrectly determined that the 'no duty to warn of open and obvious danger’ rule is inconsistent with comparative negligence and should be abolished.” Riddle, supra at 95. The Court specifically held that the rule that there is no duty to warn of open and obvious dangers remains viable in Michigan. Id. at 99-100.

Turning to the case at bar, we conclude that defendants had no legal duty to warn plaintiffs of the handicap access ramp. The Supreme Court in Riddle, supra at 96, stated:

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. Williams [v Cunningham Drug Stores, Inc, 429 Mich 495, 500; 418 NW2d 381 (1988)].

Thus, the question arises whether the handicap access ramp, and the dangers posed by that ramp, were so obvious that the invitee might reasonably be expected to discover them. In answering this question, we find guidance in the Supreme Court’s decision in Glittenberg v Doughboy Recreational Industries (On Rehearing), 441 Mich 379; 491 NW2d 208 (1992).

In Glittenberg, the Court applied the doctrine of open and obvious dangers to a products liability case involving a swimming pool. The Court stated, id. at 394, that "the narrow issue presented here is whether there is a duty to warn of the dangerous characteristics of a simple product that are readily apparent or easily discoverable upon casual inspection by the average user of ordinary intelligence.” The Court answered that question in the negative. The Court noted that the obvious nature of the *474 product’s potential danger serves as an inherent warning that the risk is present. Id. The Court further noted that the obvious danger rule in the context of a warning with regard to a simple product is fair and logical. Id. at 395-396. That is, a warning is not needed because the product’s potentially dangerous condition is fully evident, thus providing a warning would not serve to make the product safer. Id. at 396. In other words, an obvious danger is no danger to a reasonably careful person. Id. Thus, where the very condition that may cause injury is wholly revealed by casual observation, the duty to warn serves no purpose. Id. at 397.

Although this is not a products liability case, we nevertheless conclude that the Court’s observation in Glittenberg is analogous to this action, a premises liability case. A sidewalk, with a handicap access ramp, is for all practical purposes a simple product. Its nature, as well as any dangers presented, is apparent upon casual inspection by an average user with ordinary intelligence. That is, a person can observe in what direction a sidewalk goes, and what incline the sidewalk presents, upon casual inspection. There is no indication in this case that plaintiff could not have determined the existence of the handicap access ramp, or the incline of that ramp, had she inspected the sidewalk in front of her. The allegations are only that she did not discover the nature of the handicap access ramp and that she would have been more likely to discover the ramp had warning signs been posted or had the ramp been painted a contrasting color.

However, the analysis whether a danger is open and obvious does not revolve around whether steps could have been taken to make the danger more open or more obvious. Rather, the equation in *475 volved is whether the danger, as presented, is open and obvious. The question is: Would an average user with ordinary intelligence have been able to discover the danger and the risk presented upon casual inspection? That is, is it reasonable to expect that the invitee would discover the danger? With respect to an inclined handicap access ramp, we conclude that it is.

Thus, it is not relevant to the disposition of this matter whether plaintiff actually saw the handicap ramp. Rather, it is necessary for plaintiffs, to have their claim survive the motion for summary disposition, to come forth with sufficient evidence to create a genuine issue of material fact that an ordinary user upon casual inspection could not have discovered the existence of the inclined handicap access ramp. Plaintiffs have not brought forth such facts. Plaintiffs brought forth no evidence to show that the nature of the inclined ramp was not discoverable upon casual inspection. Rather, plaintiffs include excerpts from Luella Novotney’s deposition that the ramp was "not very noticeable.” The question, however, is not how noticeable the ramp was to plaintiff, but whether it was noticeable to the ordinary user upon casual inspection.

Plaintiffs also presented the affidavit of a construction safety expert who opined that the ramp should have been marked with yellow paint. Again, however, the question is not whether the ramp could have been made more noticeable or safer upon the issuance of warnings, or the painting of the ramp in a contrasting color, but whether the ramp was noticeable in its existing condition. Nowhere in his affidavit does the expert opine that the ramp was not noticeable by the ordinary user.3 *476 Furthermore, plaintiffs’ brief on appeal includes a photocopy of a photograph of the sidewalk and ramp. Although the photograph is of relatively poor quality, the ramp is nevertheless noticeable, as is its incline. 4

Moreover, as noted in Judge Sawyer’s dissent in the previous opinion on rehearing, Novotney (On Rehearing), supra at 715, buildings open to the public are required to be accessible to the handicapped and, therefore, an invitee must expect to encounter a handicap ramp somewhere on the premises. Thus, an ordinary user would expect to encounter a handicap ramp at some point and it is not unreasonable to expect the user to be on the lookout for such a ramp.5 Indeed, defendants presented an affidavit in the trial court from the local township building inspector that he had inspected the handicap ramp at issue and that the ramp met all the state regulations and specifications with respect to handicap access ramps promulgated pursuant to MCL 125.1351 et seq.; MSA 3.447(121) et seq.

In sum, defendants built a restaurant with a sidewalk and handicap access ramp constructed in conformity with the applicable construction code. There is no indication from the record that the ramp was not in plain view or that, upon casual inspection, an ordinary user could not ascertain the nature of the incline and use the ramp with safety. Accordingly, we conclude that there was no *477 genuine issue of material fact concerning the open and obvious danger posed by the ramp. Therefore, summary disposition in favor of defendants was appropriate.

The grant of summary disposition is affirmed. Defendants may tax costs.

Michael J. Kelly, J., concurred.

Judge Murphy dissented, concluding that there was a genuine issue of material fact concerning the unsafe condition of the ramp, defendants’ knowledge of the danger, and the open and obvious nature of the hazard.

Judge Sawyer dissented, concluding that the adoption of comparative negligence did not affect the viability of the doctrine of open and obvious dangers.

The closest that plaintiffs’ expert comes to so opining is his statement that plaintiff’s injuries were caused as a result of defendants’ failing to maintain a reasonably safe walkway. That, however, *476 does not equate to an opinion concerning whether an ordinary user would have noticed the ramp upon casual inspection.

The ramp itself, rather than being part of the sidewalk, sticks out from the sidewalk, providing an inclined surface from the parking lot level to the sidewalk level.

In fact, in her deposition, plaintiff Luella Novotney testified that she was intending to walk down the handicap ramp. Thus, she was in fact aware of the existence of the ramp, but had failed to ascertain the nature of the incline.