If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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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

MICHAEL RADKE and KATHLEEN RADKE,

Plaintiffs-Appellants,

UNPUBLISHED

March 7, 2024

v No. 359866

Ingham Circuit Court

CHARLES TRUESDELL, doing business as 

TRUESDELL INDUSTRIES,

LC No. 20-000513-NO

Defendant-Appellee,

and

RONALD SWENSON, 

Defendant.

ON REMAND

Before: PATEL, P.J., and CAMERON and LETICA, JJ.

PER CURIAM.

This case returns to this Court on remand1for analysis under our Supreme Court’s recent 

decision in Kandil-Elsayed v F & E Oil, Inc, 512 Mich 95; ___ NW2d ___ (2023), which changed 

how courts analyze open and obvious conditions in premises-liability claims. Because plaintiff 

Michael Radke was a licensee, not an invitee, Kandil-Elsayed does not control the outcome of this 

case. Therefore, we affirm. 

 

1 Radke v Truesdell, ___ Mich ___; 997 NW2d 218 (2023) (Radke II).
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I. BACKGROUND FACTS AND PROCEDURAL HISTORY

The facts of this case are not in dispute, and were previously set forth by this Court in 

Radke v Truesdell, unpublished per curiam opinion of the Court of Appeals, issued December 29, 

2022 (Docket No. 359866), pp 1-2 (Radke I):

In 2019, Ronald Swenson hired general contractor Truesdell to construct 

Swenson’s new home in Williamston, Michigan. Swenson is a hobby electrician 

and Truesdell agreed that Swenson could complete much of the electrical 

installation in the home. Michael and Swenson were long-time friends who often 

helped each other with home projects. On October 9, 2019, when Swenson’s home 

was under construction, Swenson invited Michael to his home to help him install 

light fixtures on the front porch. While there, Michael went to retrieve a wooden 

plank from the home’s exterior. As he was walking backwards through the garage 

carrying the plank, he bumped into a wall, causing Michael to step backwards and 

fall through a large opening to the basement. Although a subcontractor was going 

to install stairs from the garage to the basement, he had yet to do so, and there were 

no barriers surrounding the opening. Michael was severely injured in the fall.

The Radkes filed this lawsuit alleging negligence against Truesdell for 

Michael’s injuries and a derivative claim for loss of consortium on Kathleen’s 

behalf. Truesdell moved for summary disposition under MCR 2.116(C)(10) 

contending that Michael’s claim sounded in premises liability. He further argued 

that Michael could not recover under premises liability because the opening was 

open and obvious and Truesdell had no duty to safeguard Michael, a licensee, from 

this danger. Moreover, no special aspects existed which could render Truesdell 

liable for Michael’s injuries. The trial court agreed and granted the motion for 

summary disposition.

In Radke I, this Court affirmed the grant of summary disposition. This Court agreed with the trial 

court that the Radkes’ claims sounded in premises liability and Truesdell had possession and 

control over the home when Michael fell. Id. at 3-4. This Court further concluded that Truesdell 

owed Michael no duty to warn of the open and obvious danger because Michael was a licensee, 

not an invitee. Id. at 4-6. This Court declined to address the Radkes’ argument “that the opening 

in the garage floor was unreasonably dangerous and, therefore, special aspects existed such that 

Truesdell had a duty to protect Michael from the danger,” because the special-aspects exception 

conferred a duty upon a premises possessor with respect to invitees, and there was no genuine 

issue of fact that Michael was not an invitee. Id. at 6. 

Later, our Supreme Court, in Kandil-Elsayed, 512 Mich at 148-149, substantially altered 

the legal framework governing premises-liability claims. Because our decision in Radke I relied 

on the former open and obvious framework, the Court vacated Radke I and remanded the case to 

this Court for reconsideration in light of Kandil-Elsayed. Radke v Truesdell, ___ Mich ___; 997 

NW2d 218 (2023) (Radke II).
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II. STANDARD OF REVIEW

“This Court reviews de novo a trial court’s decision on a motion for summary disposition, 

as well as questions of statutory interpretation and the construction and application of court rules.” 

Dextrom v Wexford Co, 287 Mich App 406, 416; 789 NW2d 211 (2010). A motion is properly 

granted pursuant to MCR 2.116(C)(10) when “there is no genuine issue with respect to any 

material fact and the moving party is entitled to judgment as a matter of law.” Id. at 415. This 

Court “must examine the documentary evidence presented and, drawing all reasonable inferences 

in favor of the nonmoving party, determine whether a genuine issue of material fact exists. A 

question of fact exists when reasonable minds could differ as to the conclusions to be drawn from 

the evidence.” Id. at 415-416. 

In presenting a motion for summary disposition, the moving party has the 

initial burden of supporting its position by affidavits, depositions, admissions, or 

other documentary evidence. The burden then shifts to the opposing party to 

establish that a genuine issue of disputed fact exists. Where the burden of proof at 

trial on a dispositive issue rests on a nonmoving party, the nonmoving party may 

not rely on mere allegations or denials in pleadings, but must go beyond the 

pleadings to set forth specific facts showing that a genuine issue of material fact 

exists. If the opposing party fails to present documentary evidence establishing the 

existence of a material factual dispute, the motion is properly granted. [Quinto v 

Cross & Peters Co, 451 Mich 358, 362-363; 547 NW2d 314 (1996) (citations 

omitted).]

III. ANALYSIS

“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.” Buhalis v Trinity 

Continuing Care Servs, 296 Mich App 685, 693; 822 NW2d 254 (2012) (quotation marks and 

citation omitted). The duty owed a visitor depends on whether the visitor is a trespasser, a licensee, 

or an invitee. Kandil-Elsayed, 512 Mich at 111. Invitees are afforded the highest level of care. 

Sanders v Perfecting Church, 303 Mich App 1, 5; 840 NW2d 401 (2013). Even so, under our 

former jurisprudence, a land possessor had no duty to protect invitees from open and obvious 

dangers. Lugo v Ameritech Corp, Inc, 464 Mich 512, 517; 629 NW2d 384 (2001), overruled by 

Kandil-Elsayed, 512 Mich 95 (2023). Kandil-Elsayed overruled Lugo, holding that the open and 

obvious nature of a condition does not relate to the land possessor’s duty. Kandil-Elsayed, 512 

Mich at 133. Instead, Kandil-Elsayed concluded that whether a condition is open and obvious is 

relevant to whether the defendant breached their duty of care. Id. at 144. Assuming an otherwise 

actionable premises-liability claim has been established, the open and obvious nature of the 

condition informs whether the plaintiff’s damages should be reduced on the basis of comparative 

fault. Id. at 144, 148-149.

This shift in the analysis of the open and obvious doctrine does not change the outcome of 

this case, because Michael was a licensee, not an invitee. The question whether a condition was 

open and obvious is not relevant to whether a land possessor breached their duty of care to a 

licensee, because land possessors only owe a duty to warn licensees of hidden dangers. See Stitt 
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v Holland Abundant Life Fellowship, 462 Mich 591, 596; 614 NW2d 88 (2000) (“A landowner 

owes a licensee a duty only to warn the licensee of any hidden dangers the owner knows or has 

reason to know of, if the licensee does not know or have reason to know of the dangers involved.”). 

Thus, we conclude that Kandil-Elsayed is inapplicable to this case, and we need not reverse on 

this basis.

Affirmed.

/s/ Sima G. Patel 

/s/ Thomas C. Cameron 

/s/ Anica Letica