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

revision until final publication in the Michigan Appeals Reports.

-1-

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

SORIN Z. MIHALTAN, Personal Representative of 

the ESTATE OF SORIN MIHALTAN SR.,

Plaintiff-Appellee,

UNPUBLISHED

January 11, 2024

v No. 359598

Wayne Circuit Court

REDFORD TOWNSHIP HARDWARE REALTY, 

LLC and REDFORD TOWNSHIP HARDWARE, 

INC.,

LC No. 20-012645-NO

Defendants-Appellants.

Before: YATES, P.J., and JANSEN and SERVITTO, JJ.

ON REMAND

PER CURIAM.

In this wrongful-death action, defendants appeal by leave granted1the trial court order 

denying their motion for summary disposition and the order denying their motion for 

rehearing/reconsideration of the order denying their motion for summary disposition. We initially 

reversed and remanded for entry of summary disposition in defendants’ favor. Mihaltan v Redford 

Twp Hardware Realty, LLC, unpublished opinion of the Court of Appeals, issued February 9, 2023 

(Docket No. 359598) (“Mihaltan I”). Relevant here, we based our opinion, in part, on the open 

and obvious nature of the condition on defendants’ premises that caused the decedent’s harm and 

on the prevailing law pertaining to the open and obvious doctrine stated in Lugo v Ameritech Corp, 

Inc, 464 Mich 512; 629 NW2d 384 (2001). Our Supreme Court vacated this panel’s prior opinion 

and remanded the case to this Court for reconsideration in light of Kandil-Elsayed v F & E Oil, 

Inc (Docket No. 162907) and Pinsky v Kroger Co of Mich (Docket No. 163430), 512 Mich __, 

__NW2d __ 2023 WL 4845611 (July 28, 2023), in which the Court overruled Lugo, supra. 

 

1Estate of Sorin Mihaltan Sr v Redford Twp Hardware Realty, 

unpublished order of Court of Appeals, entered April 1, 2022 (Docket No. 359598).
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Mihaltan v Redford Twp Hardware Realty, LLC, 996 NW2d 457 (2023). For the reasons set forth 

in this opinion, we again reverse and remand for entry of summary disposition in defendants’ favor.

I. Background

We set forth the salient, largely undisputed facts in Mihaltan I as follows: 

Defendant, Redford Township Hardware, Inc., conducts business as 

Township True Value Hardware in Redford, MI, and defendant, Redford Township 

Hardware Realty, LLC, owns the real property on which Township True Value 

Hardware (“True Value”) conducts business. As acknowledged by the parties and 

established by video camera surveillance footage, on February 29, 2020, at 

approximately 6:00 p.m., plaintiff’s decedent Sorin Mihaltan Sr. (“Mihaltan”) went 

to True Value as a customer.

The customer entrance to True Value is located on the southwest corner of 

the building and Mihaltan parked his car in one of the ten nose-in parking spaces 

located on the south side of the building. The ten spaces are separated from each 

other by yellow lines and there is one continuous yellow line located about four feet 

out from the building and running the length of the building that provides a 

walkway to the store entrance. On the date Mihaltan visited the True Value, there 

were winter items for sale, such as bags of rock salt, piled on pallets in the majority 

of the four-foot walkway space in front of the building. The east end of the 

walkway contained two propane gas tank cages, in front of which were four posts 

protecting the cages.

As shown on the video footage, Mihaltan parked his vehicle in a nose-in 

space several spaces down from the customer entrance and proceeded to walk along 

the available edge of the walkway line toward the entrance. A U-Haul truck was 

parked, with its engine running and two occupants in it, a few spaces closer to the 

entrance than Mihaltan’s vehicle. As Mihaltan passed in front of the U-Haul, it 

slowly began moving toward the building. Mihaltan moved away from the U-Haul 

and closer to the building, into the only area in the walkway that was free from 

pallets and other items (which, incidentally, was directly in front of the U-Haul). 

As he did so, the U-Haul suddenly lurched forward, crushing him between the truck 

and the building.2 Approximately six weeks later, Mihaltan died from the injuries 

he sustained in the incident.

Mihaltan’s estate, through its personal representative (plaintiff), filed suit 

against defendants. In a first amended complaint, plaintiff asserted negligence in 

defendants’ failure to maintain their premises in a reasonably safe manner, namely: 

failing to design the parking lot to provide a safe manner of ingress and egress from 

parking spaces and failing to provide barriers between nose-in parking spaces and 

 

2

It appears that the driver of the U-Haul stated that her leg cramped up, causing her to push on the 

accelerator of the U-Haul.
-3-

the store front to prevent this type of accident. Plaintiff also claimed that defendants 

were negligent in that they breached their duties as possessors of land to protect 

Mihltan from the foreseeable negligent acts of the U-Haul driver. Plaintiff moved 

to file a second amended complaint, which the trial court granted but, before 

plaintiff actually filed its amended complaint, defendants moved for summary 

disposition under MCR 2.116(C)(8) and (10).

Defendants asserted that the parking lot configuration, lack of safety 

devices, and the existence of potentially errant vehicles in the parking lot were open 

and obvious and subject to no exceptions, thereby absolving defendants of any 

liability. Defendants additionally argued they owed no duty where it was not 

reasonably foreseeable that the configuration of the parking lots, the lack of safety 

devices between the storefront and parking spaces, or the unforeseen acts of the 

nonparty driver of the U-Haul truck would lead to Mihaltan’s claimed injuries or 

plaintiff’s damages. Finally, they argued there are no genuine issues of material 

fact, thus entitling defendants to judgment as a matter of law.

Plaintiff responded that the allegations in the complaint do not lie solely in 

premises liability, but in defendants’ negligence in exposing Mihaltan to the 

foreseeable negligent acts of third persons as well. It also responded that the 

negligent acts of third parties are not conditions of the land and are thus not subject 

to the open and obvious defense, and that the accident was foreseeable, based on 

evidence that nationwide, there are 500 deaths each year, and 4,000 nonfatal

injuries, from these types of accidents. Finally, plaintiff’s second amended 

complaint would add a claim of negligence premised upon defendants’ active 

negligence in creating a new hazard by placing pallets of sales goods in the 

walkway leading to the store’s only customer entrance.

The trial court held a hearing on the summary disposition motion on June 

21, 2021 and took the motion under advisement. On the same day, plaintiff filed 

its second amended complaint, adding a second count of negligence for defendants’

alleged creation of a dangerous condition by placing pallets in the only path of 

travel provided from the parking spaces to the customer entrance.

On September 2, 2021, the trial court issued an opinion and order denying 

defendants’ motion for summary disposition. The trial court noted that there were 

two issues for it to decide: whether the conditions of the land were open and obvious 

and whether the acts of the third-party U-Haul driver were foreseeable. The trial 

court found that the conditions were not open and obvious, opining that the 

condition of the land causing the accident (a truck crashing into Mihaltan) was not 

discoverable upon casual inspection to an average person with ordinary 

intelligence. The trial court, relying primarily upon statistical evidence provided 

by plaintiff showing that there were approximately 500 deaths per year and more 

than 4000 non-fatal injuries per year nationwide due to storefront crashes, opined 

the actions of the negligent third parties were, however, foreseeable. Defendants 

moved for reconsideration, which the trial court denied and, after this Court granted 
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leave to appeal, the trial court entered a stipulated order staying the trial court 

proceedings pending the outcome of the proceedings in this Court. Slip op at 1-2.

II. Law

Michigan law distinguishes between a claim of ordinary negligence and a claim of premises 

liability. Jeffrey-Moise v Williamsburg Towne Houses Coop, Inc, 336 Mich App 616, 625; 971 

NW2d 716 (2021). A negligence claim stems from the basic idea that “[e]very person who engages 

in the performance of an undertaking has an obligation to use due care or to act so as not to 

unreasonably endanger the person or property of another.” Laier v Kitchen, 266 Mich App 482, 

494; 702 NW2d 199 (2005), quoting 18A Michigan Civil Jurisprudence, Negligence, § 15, p 103. 

In a negligence claim, the theory of liability determines the specific obligation (duty) owed. Id. at 

493.

In a premises liability action, liability arises solely from the defendant’s duty as an owner, 

possessor, or occupier of land. Jahnke v Allen, 308 Mich App 472, 475; 865 NW2d 49 (2014). 

“Terms such as ‘premises possessor’ and ‘dangerous condition on the land’ relate to the elements 

of a premises liability, rather than ordinary negligence, claim.” Id., quoting Wheeler v Central

Mich Inns, Inc, 292 Mich App 300, 304; 807 NW2d 909 (2011). If it is alleged that the plaintiff’s 

injuries arose from a dangerous condition on the land, the claim is one of premises liability rather 

than one of ordinary negligence. Id. Courts are not bound by the labels parties affix to their claims; 

rather, the gravamen of an action is determined by considering the plaintiff’s complaint as a whole. 

Id.

A plaintiff must prove the same elements in a premises liability action that are required in 

a negligence action: “(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.” Sanders v Perfecting Church, 303 Mich App 1, 4; 840 NW2d 401 (2013). The duty 

element represents the legal obligation that arises from the relationship between the parties.

Bertrand v Alan Ford, Inc, 449 Mich 606, 614; 537 NW2d 185 (1995). The relationship between 

a business owner who holds his business open to the public and a member of the public who visits 

the business for commercial purposes is that of landowner-invitee. Sanders, 303 Mich App at 5. 

A 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.” Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 597; 614 NW2d 

88 (2000), as amended (Sept. 19, 2000) (internal citation omitted).

Until recently, our Supreme Court held that the duty of a landowner did not extend to 

dangerous conditions that are open and obvious. Estate of Livings v Sage’s Inv Group, LLC, 507 

Mich 328, 337; 968 NW2d 397 (2021). An open and obvious danger is one that is known to the 

invitee or is so obvious that the invitee might reasonably be expected to discover it. Id. Our 

Supreme Court explained in Lugo, 464 Mich at 516, that the open and obvious danger doctrine 

should not be viewed as an exception to the duty generally owed to invitees; rather, it is “an integral 

part of the definition of that duty.” It is only if one of two special aspects of the open and obvious 

condition exist that liability could nevertheless arise: where the danger is unreasonably dangerous 

or when the danger is effectively unavoidable. Id. at 517-518.
-5-

However, our Supreme Court overruled the precedent set forth in Lugo in Kandil-Elsayed

and Pinsky, 512 Mich __. In Kandil-Elsayed, the Court explained that, under the common law, 

the open and obvious nature of a condition is relevant to defendant’s breach of duty and the parties’

comparative fault. Id. at __; slip op. at 42 (emphasis added). Additionally, the Court expressly 

overruled the special-aspects doctrine, explaining that when a land possessor should anticipate the 

harm that results from an open and obvious condition, despite its obviousness, the possessor is not 

relieved of the duty of reasonable care. Id. at __; slip op. at 43. The Kandil-Elsayed Court 

summarized the state of the law now as follows:

a land possessor owes a duty to exercise reasonable care to protect invitees from an 

unreasonable risk of harm caused by a dangerous condition of the land. If the 

plaintiff establishes that the land possessor owed plaintiff a duty, the next step in 

the inquiry is whether there was a breach of that duty. Our decision does not alter 

the standard of reasonable care owed to an invitee, ... Rather, as has always been 

true, a land possessor need only exercise reasonable care under the circumstances. 

As part of the breach inquiry, the fact-finder may consider, among other things, 

whether the condition was open and obvious and whether, despite its open and 

obvious nature, the land possessor should have anticipated harm to the invitee. If 

breach is shown, as well as causation and harm, then the jury should consider the 

plaintiff’s comparative fault and reduce the plaintiff’s damages accordingly. A 

determination of the plaintiff’s comparative fault may also require consideration of 

the open and obvious nature of the hazard and the plaintiff’s choice to confront it. 

[Id. at __; slip op. at 43-44.]

III. Count I-Negligence

In his first amended complaint,

3

plaintiff’s first count is entitled “Negligence.” The 

specific allegations in that count are:

38. Defendants failed to maintain their premises in a reasonably safe manner in the 

following ways:

39. Failure to design the parking lot to provide a reasonably safe manner of 

pedestrian ingress and egress from designated parking spaces to the customer 

entrance of the business.

40. Failure to provide bollards4or another suitable barrier between nose-in parking 

spots and the store front where customers would be expected to be present.

41. Failure to provide bollards or another suitable barrier between the nose-in 

parking spots facing the building and the route where customers would be expected 

 

3 Plaintiff’s second amended complaint contains the same allegations.

4A “bollard” is “any of a series of short posts set at intervals to delimit an area (as a traffic island) 

or exclude vehicles.” Merriam-Webster’s Collegiate Dictionary (11th Ed.).
-6-

to walk to get from the designated parking spaces to the customer entrance to the 

store.

42. Defendants’ failure to maintain their premises as outlined above was a 

proximate cause of Mr. Mihaltan’s injuries and Plaintiffs damages.

Despite plaintiff’s claims or label otherwise, the above allegations appear to present a claim 

for premises liability. Plaintiff’s allegations concern the design of the parking lot and defendants’

failure to take specific cautionary measures to ensure the safety of customers when walking from 

the parking lot into defendants’ building, not on defendant’s ability to conform to a particular 

standard of care.

In Cornwell v Castaneda, unpublished per curiam opinion of the Court of Appeals, issued 

September 17, 2020 (Docket No. 347563) this Court reviewed a similar situation. In Cornwell, 

the plaintiff was sitting on a bench in a Verizon store, with her back to the parking lot. Starting at 

the building and heading to the parking area, there was a sidewalk with a curb, a two-lane rightof-way for vehicles entering and exiting the strip mall, and then parking spaces set perpendicular 

to the storefront. Cornwell, unpub op at 1. “While [the defendant] was attempting to park in one 

of the perpendicular spaces in front of the Verizon store, she lost control of her vehicle, crossed 

the two-lane right of way, jumped the curb, crossed the sidewalk, and crashed through the Verizon 

storefront, hitting the plaintiff.” Id. at 2. The plaintiff sued the driver as well as the landlord, 

K&M Real Estate, LLC, and the tenant, Verizon. Id. at 1.

This Court first analyzed whether the matter sounded in premises liability or ordinary 

negligence. Much like the present case, the plaintiff “alleged that K&M was liable for her injuries 

because the way it designed its parking lot—namely by painting parking lines perpendicular to the 

Verizon storefront and not installing any additional safety ‘devices including but not limited to 

bollards’—caused (at least to some extent) [the driver’s] vehicle to crash into Verizon’s 

storefront.” Id. at 3. The plaintiff alleged that Verizon was liable because of how it arranged its 

store (with benches next to the front window, placing the plaintiff in the vehicle’s path) and for 

failing to install exterior or interior safety devices, such as bollards, to stop or deflect any oncoming 

vehicles. Id. This Court concluded that these claims sounded in premises liability because 

ultimately, the plaintiff alleged dangerous conditions of the premises. Id.

While Cornwell is not binding precedent (MCR 7.215(C)(1)), we find it particularly 

instructive in this matter where the facts are substantially similar to those in Cornwell. Thus, 

parking lot design and a lack of barriers are necessarily “conditions of the land” and implicate 

defendants’ liability based upon their status simply as owners/possessors/occupiers of the land 

upon which the incident occurred.” See, e.g., Richardson v Rockwood Ctr, 275 Mich App 244, 

248; 737 NW2d 801 (2007) (finding that the hazards associated with a pedestrian moving through 

a parking lot and across traffic lanes to a store sound in premises liability.).

In count one of his first amended complaint, plaintiff sought to impose liability against 

defendants because of how the parking lot was set up, and the lack of protective devices. Plaintiff 

offers no argument on appeal that the specific allegations contained in count one of its first 

amended complaint do not sound in premises liability. Indeed, plaintiff offers no argument 

whatsoever concerning count one of his complaint. Plaintiff instead focuses solely on the 
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allegations contained in count two of the first amended complaint. A party may not leave it up to 

this Court to discover and rationalize the basis for his claims. Wilson v Taylor, 457 Mich 232, 

243; 577 NW2d 100 (1998). That being true, we can reach no other conclusion but that count one

of plaintiff’s complaint is for premises liability.

Defendants, being the land possessors, owed a duty to exercise reasonable care to protect 

invitees such as decedent from an unreasonable risk of harm caused by a dangerous condition of 

the land. The dangerous conditions complained of in count one of the complaint were the design 

of the parking lot and lack of barriers such as bollards between the nose-in parking spaces facing 

the building and the route customers would be expected to walk to get from the parking spot to the 

front of the store. Under the next step of the Kandil-Elsayed analysis, our inquiry turns to whether 

defendants breached their duty of reasonable care.

Here, the design of the parking lot and the lack of bollards were open and obvious. The 

definition of “open and obvious” remains unchanged post-Kandil-Elsayed, continuing to be a 

danger that an average user with ordinary intelligence would have been able to discover upon 

casual inspection. Joyce v Rubin, 249 Mich App 231, 238; 642 NW2d 360 (2002). Anyone, 

including decedent, driving into the parking lot would be able to see its layout and the lack of 

barriers immediately. Plaintiff has not suggested or provided any evidence to indicate otherwise. 

Moreover, there has been no evidence presented that defendants should have anticipated a risk of 

harm presented to decedent due to a lack of barriers and the design of the parking lot despite their 

open and obvious nature. Kandil-Elsayed, 512 Mich __; slip op. at 43-44. Plaintiff having failed 

to establish a breach of the duty of reasonable care by defendants in count one of its complaint, 

defendants are entitled to summary disposition in their favor on this count.

IV. Count II–Negligence.

Count two of plaintiff’s first amended complaint is also entitled “negligence.” The specific 

allegations in that count are:

43. Possessors of land who hold it open to the public for entry for their business 

purposes, like Defendants, are subject to liability to members of the public while 

they are upon the land for such a purpose, for physical harm caused by the 

accidental or negligent harmful acts of third persons.

44. Defendants failed to exercise reasonable care to discover whether such 

accidental or negligent acts were likely to occur, or give a warning adequate to 

enable business visitors to avoid the harm, or otherwise to protect them against it.

45. Defendants had a duty to protect Plaintiff’s decedent from the foreseeable 

negligent and/or accidental conduct of third parties.

46. The negligent/accidental act of the third-party business invitee (the pedal 

accident) was reasonably foreseeable.

47. Defendants’ failure to protect Plaintiff’s decedent from the foreseeable 

negligent/accidental conduct of third parties proximately caused Plaintiff’s

decedent’s injuries and death.
-8-

The trial court did not specify whether it found the allegations in count two to serve as a 

claim of premises liability or negligence, but the allegations also appear to be a claim for premises 

liability. Plaintiff references defendants’ position as possessors of land, holding their property 

open to the public for business purposes and defendants being subject to liability to persons coming 

onto their property for business purposes. Plaintiff also describes the specific duties owed to 

decedent as a business invitee, and how defendants breached those duties. We thus find that count 

two of plaintiff’s complaint is a claim for premises liability.

Again, being the land possessors, defendants owed a duty to protect invitees such as 

decedent from an unreasonable risk of harm caused by a dangerous condition of the land. The 

dangerous condition asserted by plaintiff in count two is the foreseeable negligent and/or 

accidental conduct of third parties. In Cornwell, supra, this Court found that the action of a driver 

losing control of his or her vehicle in a parking lot was a condition of the land. This Court 

explained:

Motor vehicles are a ubiquitous part of society, and where motor vehicles 

travel, the danger posed by their operation follows. One such danger is that an 

operator of a motor vehicle can lose control of their vehicle, either through 

negligence or as a result of defective equipment, and crash. This is not a dangerous 

condition created by a possessor of property, but is a dangerous condition inherent 

in the operation of a motor vehicle. While the likelihood of an operator of a motor 

vehicle losing control of the vehicle and crashing it into a building is low, it is an 

obvious fact that where there are motor vehicles, there is a risk that an operator 

might lose control of it and crash.

It is a risk that we are confronted with on a near-daily basis—whenever we 

operate a motor vehicle, walk through a parking lot, walk on a sidewalk next to a 

street, or even when a motor vehicle drives by our home. When plaintiff entered 

K&M’s parking lot or Verizon’s store, the danger posed by motor vehicles—the 

same danger that plaintiff confronted in order to get to the Verizon store in the first 

place—did not change. A land possessor’s duty to an invitee generally does not 

extend to providing the invitee with “a safer environment on his premises than his 

invitees would encounter in the community at large.” Williams [v Cunningham 

Drug Stores, Inc], 429 Mich [495, 502; 418 NW2d 381 (1988)]. See also Stanley 

v Town Square Co-op, 203 Mich App 143, 151; 512 NW2d 51 (1993)[, lv den 445 

Mich 942 (1994)] (“We find that a landlord does not owe a duty to invitees to make 

open parking lots safer than the adjacent public streets.”). This is because land 

possessors “are not absolute insurers of the safety of their invitees,” Bertrand, 449 

Mich at 614, but rather they have a duty to use reasonable care to protect the invitees 

from unreasonable risks of harm, Hoffner [v Lanctoe], 492 Mich [450,] 460[; 821 

NW2d 88 (2012)]. [Cornwell, unpub op at 5.]

Plaintiff contends that the Cornwell Court’s ruling:

conflates two separate and distinct tort doctrines and duties which are in turn 

governed by separate and distinct sections of the Restatement 2d on Torts: the duty 

of merchants to protect their patrons from the foreseeable negligent acts of third 
-9-

parties, which is governed by § 344 of Restatement of Torts, 2d, and the duty of 

premises owners/occupiers to keep their premises in a reasonably safe condition, 

which is governed by § 343 and § 343A of Restatement Torts, 2d.

It does not. Sections 343, 343A, 343B, and 344 all appear in Restatement of Torts 2d under Title 

E. SPECIAL LIABILITY OF POSSESSORS OF LAND TO INVITEES. Restatement of Torts 

2d § 344 states:

A possessor of land who holds it open to the public for entry for his business 

purposes is subject to liability to members of the public while they are upon the 

land for such a purpose, for physical harm caused by the accidental, negligent, or 

intentionally harmful acts of third persons or animals, and by the failure of the 

possessor to exercise reasonable care to

(a) discover that such acts are being done or are likely to be done, or

(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise 

to protect them against it.

However, comment f states:

f. Duty to police premises. Since the possessor is not an insurer of the visitor’s 

safety, he is ordinarily under no duty to exercise any care until he knows or has 

reason to know that the acts of the third person are occurring, or are about to occur. 

He may, however, know or have reason to know, from past experience, that there 

is a likelihood of conduct on the part of third persons in general which is likely to 

endanger the safety of the visitor, even though he has no reason to expect it on the 

part of any particular individual. If the place or character of his business, or his past 

experience, is such that he should reasonably anticipate careless or criminal conduct 

on the part of third persons, either generally or at some particular time, he may be 

under a duty to take precautions against it, and to provide a reasonably sufficient 

number of servants to afford a reasonable protection.

There is no assertion or evidence provided that defendants knew or should have known that the UHaul truck incident was occurring or about to occur, that similar accidents had happened in the 

past at defendants’ store, or that defendants were familiar with statistics concerning parking lot 

accidents.

On the issue of foreseeability of the harm suffered by decedent the trial court opined that 

plaintiff:

provided evidence that between 2014 and 2020 there were approximately 500 

deaths per year and more than 4,000 non-fatal injuries nationwide due to storefront 

crashes. As accidents similar to the accident that occurred in this case are likely to 

happen, the acts of [] the negligent third party, were foreseeable.

This evidence was derived from Exhibit 8 to plaintiff’s response to defendants’ motion for 

summary disposition, which is a lengthy affidavit prepared by Robert Reiter, the principal of Reiter 
-10-

and Reiter Consulting, Inc. According to the affidavit, the firm provides consulting, product 

development, and business services for companies worldwide related to the prevention of vehicle 

incursions into commercial and public areas. In the affidavit, Reiter references his research and 

statistics concerning storefront crashes. Reiter analyzed the video of the incident and defendants’

layout of the parking spaces and lot and ultimately opined:

48. Because of my research, experience, and training as an expert in the areas 

of pedestrian injuries due to vehicle incursions in parking lots, sidewalks and 

storefronts, and retail parking lot and pedestrian safety, it is my opinion that a 

hazardous condition was present at this location that was unaddressed by the 

defendants. There was no safe path of travel for pedestrians anywhere along the 

store frontage, so customers like Mr. Mihaltan was in fact unprotected from 

wayward vehicles. The presence of pallets of merchandise for display or sale on 

either side of the area where Mr. Mihaltan was walking when struck by the U-Haul 

likely acted as entrapments, which created an added hazard [] by preventing any 

chance of evasion. The failure of the defendants to protect pedestrians and invitees 

at the True Value Hardware store was negligent.

49. Had effective and affordable safety devices such as bollards been installed 

to protect this portion of the storefront, no vehicle incursion into this pedestrianonly area would have occurred, and no injuries would have been suffered by Mr. 

Mihaltan on that day, 29 February 2020. The negligent behavior on the part of the 

defendants resulted in the absence of safety barriers to offer protection to the 

plaintiff in the foreseeable event of a vehicle failing to stop at the end of a marked 

parking space. As a result, the plaintiff was very seriously injured.

The trial court’s reliance on the affidavit to deny summary disposition is troublesome for several 

reasons. First, Reiter’s affidavit speaks to safety barriers and protective measures defendants 

should have had in the parking lot—issues brought up in count one of plaintiff’s complaint and 

undeniably sounding in premises liability. The hazardous conditions that Reiter indicates are 

present in defendants’ parking lot were not addressed by plaintiff on appeal.

Second, that, statistically, accidents had happened in other parking lots with drivers and 

pedestrians in the past does not equate with defendants’ knowledge that the incident at issue was 

foreseeable in their parking lot.

Third, the actual statistics cited by the trial court—between 2014 and 2020 there were 

approximately 500 deaths per year and more than 4,000 non-fatal injuries nationwide due to 

storefront crashes—appear to be gleaned from paragraphs 10 and 30 of the affidavit. In paragraph 

10, Reiter swears, “In addition, storefront crashes occur as in excess of 20,000 times per year in 

the United States, and each year as many as 500 people are killed and more than 4,000 people are 

seriously injured in what are almost always preventable incidents. See the National Institute of 
-11-

Building Sciences/Whole Building Design Guide: https://www.wbdg.org/designobjectives/secure-safe.” However, that specific statistic does not appear on that specific site page.5

Finally, the trial court’s determination that “an average person with ordinary intelligence 

would not discover upon casual inspection that an operator of a motor vehicle would lose control 

of their vehicle in a parking lot and crash into a person” while at the same time find that a 

landowner would foresee such event happening is logically inconsistent. It is difficult to 

understand how defendants should have predicted the event at issue long before it happened, and 

yet at the same time, how decedent would not immediately see the risk of the event (being struck 

by a clearly running U-Haul) when he chose to walk in front of it.

In sum, while defendants owed decedent a duty to protect him from an unreasonable risk 

of harm caused by a dangerous condition of the land, plaintiff has failed to establish that defendants 

breached any such duty with respect to a third-party hitting decedent in the parking lot. The danger 

of being hit by a car while traversing a parking lot and/or an area adjoining a parking lot is open 

and obvious. It is a dangerous condition inherent in all parking lots and other places cars traverse,

in all societies that rely heavily upon cars for transportation. There was also no unreasonable risk 

of harm posed to decedent, as to find otherwise would require us to find that any time someone 

crossed a parking lot or was in the vicinity of moving cars he or she would be facing an 

unreasonable risk of harm and any business owning a parking lot would automatically be found to 

owe a duty to all in the parking lot, no matter what the circumstances. Premises liability was not 

intended to equal strict liability. As a result, defendants were entitled to summary disposition on 

count two of plaintiff’s complaint.

V. Plaintiff’s Second Amended Complaint

Defendants contend that this Court should reverse the trial court’s order denying their 

motion for reconsideration/rehearing of the summary disposition order because plaintiff’s 

 

5There is a section of that website that briefly mentions Storefront and Public Space Safety and 

states that:

According to the latest data from the Storefront Safety Council[] Vehicle-into-Building 

crashes occur 100 times a day causing nearly 2,600 deaths and more than 16,000 injuries 

annually. Further, forty-six percent of all storefront crashes result in an injury and eight 

percent result in a fatality. These figures, reviewed by Lloyd’s of London, equate to more 

than 36,000 storefront crashes every year in the United States.

The “statistics” page of the Storefront Safety Council Website shows a statement that 100 

storefront incidents occur every day, with 16,000 injuries annually, 2600 death every year, and 

24% happening in retail stores. Paragraph 30 of Reiter’s affidavit states, “We estimate that 

vehicle-into-building crashes occur more than 60 times per day, which means that there are more 

than 20,000 such crashes annually. Our very conservative estimate is that as many as 4,000 

invitees, employees, and pedestrians are seriously injured each year, with as many as 500 killed.” 

So, the statistics appear to vary and be based on estimates.
-12-

assertion that the presence of bollards or absence of pallets would have prevented the accident is 

speculative and conjecture. Defendants acknowledge that this specific issue was not decided by 

the trial court because, at the time of the hearing on defendants’ motion for summary disposition, 

while plaintiff had been permitted to file a second amended complaint adding the above assertions, 

the second amended complaint had not yet been filed.

In its second amended complaint, filed on the same day the summary disposition hearing 

was held, plaintiff added a third count, entitled “negligence.” The allegations in the third count 

are:

54. Defendants had a duty to take reasonable precautions to protect business visitors 

from foreseeable harm.

55. Defendants agents created a dangerous condition and subjected Mr. Mihaltan 

to foreseeable harm by placing the pallets in the only path of travel provided from 

the parking spaces to the customer entrance as described above.

56. The dangerous conditions created by Defendants were a cause in fact and a 

proximate cause of Plaintiffs decedent’s injuries and death.

This Court generally does not consider issues not raised below. Walters v Nadell, 481 

Mich 377, 387; 751 NW2d 431 (2008). However, we may consider an issue not raised below if it 

involves a question of law and if the facts necessary for its resolution have been presented. Poch 

v Anderson, 229 Mich App 40, 52; 580 NW2d 456 (1998). That is the case here.

As previously indicated, in its opinion, the trial court determined that:

It may be open and obvious that no bollards or other safety devices were placed in 

the parking lot and pallets were placed against the wall of the storefront. However, 

the condition on the land which directly caused harm to Mr. Mihlatan [sic] and led 

to his death was the motor vehicle that crashed into him.

We agree that, as noted by the trial court, the condition which directly caused harm to 

Mihaltan was the motor vehicle that crashed into him—the pallets had nothing to do with the UHaul crashing into Mihaltan. The U-Haul crashed into him because the driver allegedly had a leg 

cramp that caused her to press the accelerator of the U-Haul and the presence or absence of pallets 

had no influence on that. As previously discussed, it would not be logically consistent to find that 

defendants could and should anticipate this particular risk of harm but that Mihaltan and others in 

his position could and should not. Thus, the additional allegations in plaintiff’s second amended 

complaint would be futile.

We reverse and remand for entry of summary disposition in defendants’ favor.

/s/ Christopher P. Yates

/s/ Kathleen Jansen

/s/ Deborah A. Servitto