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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

ESTATE OF CHARLES MEREDITH, by LINDA 

MEREDITH, Personal Representative,

Plaintiff-Appellant,

UNPUBLISHED

May 29, 2018

v No. 339045

Washtenaw Circuit Court

BRT PROPERTIES LLC, LC No. 16-000513-NO

Defendant-Appellee.

Before: METER, P.J., and GADOLA and TUKEL, JJ.

PER CURIAM.

In this premises liability action, plaintiff appeals as of right the order granting defendant’s 

motion for summary disposition pursuant to MCR 2.116(C)(8) and MCR 2.116(C)(10). We 

affirm.

This case arises from a slip-and-fall injury that occurred on April 5, 2016. On that day, 

plaintiff’s decedent, Dr. Charles Meredith,1 slipped and fell while descending a staircase in 

defendant’s two-story office building. Dr. Meredith leased a second-floor office from defendant

and consistently traversed the staircase at issue since 2010. When facing down the stairs, on the 

left there was a wooden bannister with a non-graspable handrail, and on the right there was a 

plain wall with a piece of artwork hung toward the bottom of the staircase. While descending the 

stairs on April 5, 2016, Dr. Meredith lost his balance and fell a few steps. At some point, a piece 

of art that had been hanging on the wall near the bottom of the stairs came loose and fell on top 

of Dr. Meredith as well.

Plaintiff, Linda Davis Meredith, filed an amended complaint alleging separate counts of 

premise liability and negligence.

2

 Defendant moved for summary disposition pursuant to MCR 

 1 Dr. Meredith died after the filing of this lawsuit from a heart attack unrelated to the alleged 

incident.

2 The original complaint named both Linda Meredith and Dr. Meredith as plaintiffs, but after Dr. 

Meredith’s death, the complaint was amended to name Linda as the sole plaintiff in her capacity 

as the personal representative of Dr. Meredith’s estate. Both complaints also alleged a count of 
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2.116(C)(8) and MCR 2.116(C)(10), claiming that plaintiff’s claims were barred by the open and 

obvious doctrine. Plaintiff responded that “Defendant created a dangerous and unsafe condition 

on its premises by failing and/or neglecting to install graspable handrails down the length of an 

unavoidable stairway.” Plaintiff also argued that “Defendant did not maintain its property in a 

reasonably safe manner” by “failing to properly secure a twelve (12) pound wooden art-piece 

that protruded into the stairs that Defendant knew, or should have known, many elderly invitees 

traverse on a regular basis.”

At the conclusion of the hearing on defendant’s motion, the trial court granted 

defendant’s motion and held that

reasonable minds could not differ, that there was no defect, or that the fall was 

caused by any alleged defect. The claim is barred by the open and obvious 

doctrine. There are no special effects [sic] in the staircase that would exclude it 

from application of that doctrine. The property was not in violation of any 

applicable codes. And for all of the reasons argued by the defendant, the motion 

is granted.

Plaintiff moved for reconsideration. Plaintiff argued, inter alia, that the trial court failed 

to consider the argument related to the “loosely hung heavy piece of art that was not properly 

secured to the wall adjacent to the staircase.” The trial court denied plaintiff’s motion and stated

that there was no evidence that the staircase or the artwork violated any applicable building 

codes or constituted dangerous conditions that were not open and obvious.

Plaintiff argues on appeal that the trial court erred in granting defendant’s motion for 

summary disposition. We disagree.

Although defendant moved for summary disposition under both MCR 2.116(C)(8) and 

MCR 2.116(C)(10), because the trial court and the parties relied on documents outside the 

pleadings, we consider the motion as having been decided solely under MCR 2.116(C)(10). See 

Steward v Panek, 251 Mich App 546, 554-555; 652 NW2d 232 (2002). “This Court reviews the 

grant or denial of summary disposition de novo to determine if the moving party is entitled to 

judgment as a matter of law.” Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).

A motion for summary disposition under MCR 2.116(C)(10) tests the factual 

support for a claim. When reviewing a trial court's decision to grant a motion for 

summary disposition, we consider the pleadings, affidavits, depositions, 

admissions, and other documentary evidence submitted in the light most favorable 

to the nonmoving party. The court should grant the motion only if there is no 

genuine issue of material fact and the moving party is entitled to judgment as a 

matter of law. [Steward, 251 Mich App at 555 (citations omitted).]

 

loss of consortium, but because that claim is derivative to the other claims that were dismissed, 

we need not discuss it.
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At the outset, we note that plaintiff alleged claims of premises liability and negligence in 

the amended complaint. The trial court dismissed these claims based on the open and obvious 

doctrine. However, because the open and obvious doctrine only applies to premises liability 

claims and not to ordinary negligence claims, Laier v Kitchen, 266 Mich App 482, 494, 497; 702 

NW2d 199 (2005), the trial court necessarily viewed plaintiff’s non-derivative claims as 

sounding solely in premises liability, see Buhalis v Trinity Continuing Care Servs, 296 Mich App 

685, 691; 822 NW2d 254 (2012) (“Courts are not bound by the labels that parties attach to their 

claims.”); Adams v Adams (On Reconsideration), 276 Mich App 704, 710-711; 742 NW2d 399 

(2007) (“It is well settled that the gravamen of an action is determined by reading the complaint 

as a whole, and by looking beyond mere procedural labels to determine the exact nature of the 

claim.”). Plaintiff does not argue that the trial court erred in this respect; therefore, we likewise 

will treat plaintiff’s non-derivative claims solely as a premises liability claim.3 Thus, plaintiff’s 

complaint alleges a claim of premises liability with two alternative theories: (1) the lack of a 

graspable handrail and (2) the loosely secured art which fell on plaintiff causing him to in turn 

lose his balance and fall. See AFSCME Council 25 v Faust Public Library, 311 Mich App 449, 

459; 875 NW2d 254 (2015) (“[P]arties are permitted to plead inconsistent claims and facts in the 

alternative.”).

“In a premises liability action, a plaintiff must prove the elements of negligence: (1) the 

defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the 

proximate cause of the plaintiff’s injury, and (4) the plaintiff suffered damages.” Benton v Dart 

Props, Inc, 270 Mich App 437, 440; 715 NW2d 335 (2006). “The starting point for any 

discussion of the rules governing premises liability law is establishing what duty a premises

possessor owes to those who come onto his land.” Hoffner v Lanctoe, 492 Mich 450, 460; 821 

NW2d 88 (2012). Here, there is no dispute that Dr. Meredith, as a tenant of defendant, was an 

invitee. And with regard to invitees, a premises owner has a duty “to exercise reasonable care to 

protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land 

that the landowner knows or should know the invitees will not discover, realize, or protect 

themselves against.” Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185 (1995) 

(quotation marks and citation omitted).

However, this duty to protect or warn does not extend to hazards that are open and 

obvious. Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). The rationale 

for the doctrine is that “there should be no liability for failing to warn someone of a risk or 

hazard [that] he appreciated to the same extent as a warning would have provided.” Glittenberg 

v Doughboy Recreational Indus, Inc, 436 Mich 673, 683-684; 462 NW2d 348 (1990) (quotation 

marks and citation omitted). To determine whether a danger is open and obvious, we utilize an 

 3 We note that the trial court’s treatment was not erroneous because plaintiff alleges that Dr. 

Meredith was injured as a result of a dangerous condition on the land, i.e., the lack of a graspable 

handrail and an insecure piece of artwork. See Buhalis, 296 Mich App at 692 (stating that if the 

plaintiff’s injury arose from an allegedly dangerous condition on the land, then the action sounds 

in premises liability rather than ordinary negligence, even if the premises possessor created the 

condition giving rise to the plaintiff’s injury).
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objective test: “[w]ould an average user with ordinary intelligence have been able to discover 

the danger and the risk presented upon casual inspection?” Novotney v Burger King Corp (On 

Remand), 198 Mich App 470, 475; 499 NW2d 379 (1993); see also Watts v Mich Multi-King, 

Inc, 291 Mich App 98, 102-103; 804 NW2d 569 (2010).

In this case, the condition of the staircase and handrail was open and obvious. The 

submitted photo exhibits make it clear that there were no graspable handrails on either side of the 

staircase. However, the exhibits also show that there was a bannister with a non-graspable 

handrail located on the left side of the staircase when facing downward. Accordingly, to the 

extent that plaintiff argues that the lack of a graspable handrail was the hazard which caused Dr. 

Meredith to fall, such hazard was quite open and obvious, and defendant had no duty to protect 

Dr. Meredith from it.

However, the open and obvious doctrine will not cut off a possessor’s duty to protect or 

warn “if special aspects of a condition make [the] open and obvious risk unreasonably 

dangerous.” Lugo, 464 Mich at 517. One such special aspect exists when the hazard “imposes 

an unreasonably high risk of severe harm.” Id. at 518. Plaintiff argues that the absence of a 

graspable handrail rendered the staircase unreasonably dangerous. However, this argument is

without merit. Dr. Meredith successfully descended the staircase for seven years without having 

any issues. The staircase was not defective and was not dangerous to invitees who were paying 

attention to where they were walking. See Kroll v Katz, 374 Mich 364, 373; 132 NW2d 27 

(1965) (concluding that the mere existence of a defect or danger is not enough to establish 

liability). Indeed, this is not a situation where there was no handrail at all. There is no dispute 

that there was a handrail on the one side of the staircase. The fact that the handrail that was 

present was not “graspable” does not make the staircase unreasonably dangerous. Dr. Meredith, 

while being aware of the configuration of the staircase, for unknown reasons decided to carry his 

briefcase in his left hand while descending the stairs, which severely limited his ability to utilize 

the existing bannister/handrail.

We further note that defendant was not required to install a graspable handrail. The 

building was converted to business use in 1987. The building code in effect at the time of the 

building’s conversion to business use was the 1981 Basic Building Code, and the 1981 Code did 

not require graspable handrails. Further, while later versions of the Building Code required the 

use of graspable handrails, these new requirements were not imposed on already-existing 

structures unless those already-existing structures were altered or remodeled, which was not the 

case here.

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 Regardless, “although violation of an ordinance may be some evidence of 

 4 Indeed, the first time Ann Arbor implemented a graspable handrail requirement was when, in 

1994, it adopted the 1993 version of the Building Code. And this 1993 version of the Code 

specifically provides:

The legal occupancy of any structure existing on the date of the adoption of this 

code, or for which it has been heretofore approved, shall be permitted to continue 

without change, except as is specifically covered in this code, the property 

maintenance or fire prevention codes listed in Chapter 35, or as is deemed 
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negligence, it is not in itself sufficient to impose a legal duty cognizable in negligence.” 

Summers v Detroit, 206 Mich App 46, 51-52; 520 NW2d 356 (1994). The critical inquiry is

whether there was something unusual about the stairs because of their character, location, or 

surrounding conditions. Bertrand, 449 Mich at 617. Here, the trial court properly held that the 

lack of graspable hand railings on a staircase is not something so unusual that would support an 

exemption from the application of the open and obvious doctrine.

Plaintiff also avers that the condition of the artwork hanging on the wall was not open 

and obvious. However, while plaintiff dedicated her argument in her brief on appeal to the 

handrail issue, she provided cursory analysis regarding the art work. Accordingly, we deem this 

issue abandoned. See Prince v MacDonald, 237 Mich App 186, 197; 602 NW2d 834 (1999).

In any event, no reasonable jury could conclude that the art caused Dr. Meredith to fall, 

which necessitates the grant of defendant’s motion for summary disposition. The uncontradicted

evidence demonstrated that the art was secured by a cable and two hooks. In the unusual context 

of this case, the evidence also clearly established, for purposes of summary disposition, that Dr. 

Meredith was the cause of the art work falling—not that the art (or defendant) somehow caused 

Dr. Meredith to fall.

“The reviewing court should evaluate a motion for summary disposition under MCR 

2.116(C)(10) by considering the substantively admissible evidence actually proffered in 

opposition to the motion. A reviewing court may not employ a standard citing the mere 

possibility that the claim might be supported by evidence produced at trial. A mere promise is 

insufficient under our court rules.” Maiden, 461 Mich at 121. Here, the only piece of evidence 

that even remotely suggests that the art somehow caused Dr. Meredith to fall is found in Dr. 

Meredith’s answers to defendant’s interrogatories, in which Dr. Meredith claimed, “While 

descending, I was struck by [a] heavy piece of hanging wall art, which was not secured to the 

wall, and fell onto me causing me to lose my balance.” That evidence exists only in Dr. 

Meredith’s answers to defendant’s interrogatories, and because Dr. Meredith passed away before 

he could be deposed, there can be no additional evidence produced on this point. However, the 

admissibility of the interrogatory answers at trial is dubious, at best. These answers, while made 

under oath, nevertheless are statements “other than the one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” 

The interrogatory answers are thus hearsay when offered by plaintiff. See MRE 801(c); MRE 

802; Hanlon v Firestone Tire & Rubber Co ̧ 391 Mich 558, 574-575; 218 NW2d 5 (1974) 

(opinion of Coleman, J.). Further, because Dr. Meredith was never subjected to crossexamination by defendant, there is no apparent exception to the hearsay rule which would permit 

 

necessary by the code official for the general safety and welfare of the occupants 

and the public. [1993 BOCA, § 102.2 (emphasis added).]

Further, this type of “grandfathering” provision has been carried over through to the time of Dr. 

Meredith’s accident. See, e.g., 2012 Michigan Building Code, § 102.6.
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plaintiff to admit Dr. Meredith’s answers in evidence to prove that the art caused Dr. Meredith to 

fall. See MRE 803; MRE 804.

But beyond merely being unable to carry his burden of producing some admissible 

evidence to preclude summary disposition, plaintiff’s position actually is undercut by the 

admissible evidence. There was testimony that Dr. Meredith admitted to several other people

that the art did not cause him to lose his balance. His medical records indicate that he told the 

treating physicians that he “tripp[ed] over his own feet” while descending the stairs and that 

during the fall, “[h]e brushed up against a wood statue/object on the wall which fell on top of his 

back.” Further, Dr. Meredith told another person who works in the same building that his office

was in that the fall “was [his] own fault” because he “had too much” in his briefcase, which 

caused him to “los[e] [his] balance” and, while falling, hit the art work. As a party opponent, 

those statements are not hearsay and are admissible against plaintiff by defendant, even though 

they are hearsay and thus inadmissible if offered by plaintiff on his own behalf. See MRE 

801(d)(2)(A). Thus, there not only was no admissible evidence to support plaintiff’s claims, but 

the uncontroverted evidence established that plaintiff himself was the cause of the accident. As 

noted, if a reasonable jury could not find that the art caused Dr. Meredith to fall, then summary 

disposition is warranted. See Maiden, 461 Mich at 122; Quinto v Cross & Peters Co, 451 Mich 

358, 367; 547 NW2d 314 (1996). Accordingly, even if plaintiff had not abandoned this aspect of 

her claim, summary disposition was warranted in favor of defendant.

Affirmed. Defendant, as the prevailing party, may tax costs pursuant to MCR 7.219.

/s/ Patrick M. Meter 

/s/ Michael F. Gadola 

/s/ Jonathan Tukel