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### STATE OF MICHIGAN

COURT OF APPEALS

ROBERT M. SPRAGA, JR.,

Plaintiff-Appellant, UNPUBLISHED November 19, 2015

v No. 325891 Oakland Circuit Court PHILIP C. KUNTZMAN and ANNE M. KUNTZMAN, LC No. 2014-139730-NO

Defendants-Appellees.

Before: J ANSEN , P.J., and M URPHY and R IORDAN , JJ.

P ER C URIAM

. Plaintiff, Robert Spraga, Jr., appeals as of right the trial c ourt order granting summary disposition in favor of defendants, Philip and Anne Kuntzman, i n this premises liability case. We affirm.

I. FACTUAL BACKGROUND

On March 1, 2013, plaintiff was picking up donations in a Purp le Heart truck as an employee of A-1 Recycling. At approximately 10:45 a.m., plaint iff arrived at defendants’ home in Rochester, Michigan, to pick up a prescheduled donation. 1 Plaintiff pulled the truck up to the curb, saw the donation in a paper bag on the porch, activated t he truck’s flashers, and exited the truck to retrieve the donation. Plaintiff first walked across the sidewalk that passes in front of defendants’ house. He then cut across a corner of the grass an d walked onto the sidewalk that leads directly to defendants’ por ch. After walking two or thre e steps, he slipped and fell due to black ice on the sidewalk. Plain tiff suffered extensive injuri es as a result of his fall.

1 Before the incident, Purple Heart called defendants’ home and asked if the household had any items to donate. When defendant Anne Kuntzman confirmed that d efendants did have items to donate, she was instructed to leave the items in a bag on the p orch before 8:00 a.m. on the date of pickup. She also received a reminder phone call from Purple He art prior to the scheduled pickup time.-2- Plaintiff brought an action against defendants, alleging, inter alia , that he was an invitee at defendants’ residence when he slipped and fell on black ice, and that defendants failed to properly maintain and inspect their property, failed to warn of the hazardous condition, and failed to correct the dangerous condition.

Defendants moved for summary disposition pursuant to MCR 2.116( C)(10), arguing that there is no genuine issue of material fact that plaintiff was a licensee on defendants’ property, and, as a result, defendants had no duty to prepare their prope rty for his arrival or inspect it for hidden dangers. The trial court granted defendants’ motion for summary disposition, concluding that plaintiff was a licensee because Purple Heart’s solicitati on of donations from defendants did not constitute a commercial activity; the only business or comm ercial relationships involved in the incident were between (1) Pur ple Heart and A-1 Recycling an d (2) plaintiff and A-1 Recycling; and even if defendants received a tax benefit from t he donation, this benefit was not from plaintiff and did not establish a commercial activity. Ad ditionally, the trial court concluded that defendants did not have a duty to warn plaintiff of the ic y condition, as there was no evidence in the record that defendants knew or had reason to kn ow about the black ice, or that the ice was unreasonably dangerous.

II. STANDARD OF REVIEW

This Court reviews de novo a tria l court’s grant or denial of s ummary disposition. Moraccini v Sterling Hts , 296 Mich App 387, 391; 822 NW2d 799 (2012). When reviewing a motion for summary disposition pursuant to MCR 2.116(C)(10), th is Court may only consider, in the light most favorable to the party opposing the motion, the evidence that was before the trial court, which consists of “the ‘affidavits, together with the pl eadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties.’ ” Calhoun Co v Blue Cross Blue Shield Michigan , 297 Mich App 1, 11; 824 NW2d 202 (2012), quoting MCR 2.116(G)(5). Under MCR 2.116(C)(10), “[s]ummary disposition is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.” Latham v Barton Malow Co , 480 Mich 105, 111; 746 NW2d 868 (2008). “There is a genuine issue of material fact when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP , 481 Mich 419, 425; 751 NW2d 8 (2008). “This Court is liberal in finding genuine issues of material fact.” Jimkoski v Shupe , 282 Mich App 1, 5; 763 NW2d 1 (2008).

III. ANALYSIS

On appeal, plaintiff argues that the trial court erred in grant ing defendants’ motion for summary disposition because plaintiff was an invitee on defenda nts’ premises, not a licensee. Plaintiff reasons that he was an invitee on the basis that his act of retrieving charitable donations from defendants’ home provided an economic benefit to defendant s, such that plaintiff, as the driver of a delivery truck, enter ed defendants’ property for a commercial purpose that resulted in a shared benefit. Defendants respond that plaintiff was a lice nsee at the time of his injury because there was no genuine issue of material fact that plaint iff entered defendants’ premises only to pick up a charitable donation, and defendants did not i nvite plaintiff onto their property for a commercial purpose. We agree with defendants.-3- “In a premises liability action, a plaintiff must prove the el ements of negligence: (1) the defendant owed the plaintiff a dut y, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff’s injury, and (4) the plaintif f suffered damages.” Benton v Dart Props, 270 Mich App 437, 440; 715 NW2d 335 (2006). However, the duty owed by a landowner depends on the visitor’s status as a trespasser, lice nsee, or invitee at the time of the injury. Stitt v Holland Abundant Life Fellowship , 462 Mich 591, 596; 614 NW2d 88 (2000). Here, there is no dispute that p laintiff was not a trespasser o n defendants’ property. See id

. Thus, the question is whether pla intiff was a licensee or an in vitee.

“A ‘licensee’ is a person who is privileged to enter the land of another by virtue of the possessor’s consent.” Id . “[A] landowner owes a licensee a duty to warn the licensee o f any hidden dangers the owner knows or has reason to know of, if the hidden danger involves an unreasonable risk of harm and the licensee does not know or hav e reason to know of the hidden danger and the risk involved.” Kosmalski v St John’s Lutheran Church , 261 Mich App 56, 65; 680 NW2d 50 (2004). “The landowner owes no duty of inspection or affirmative care to make the premises safe for the licen see’s visit. Typically, social guests are licensees who assume the ordinary risks associat ed with their visit.” Stitt , 462 Mich at 596 (citation omitted).

On the other hand,

[a]n “invitee” is “a person who enters upon the land of another upon an invitation which carries with it an implied representation, assurance, or understanding that reasonable care has been used to prepare the premises, and make [it] safe for [the invitee’s] reception.” The la ndowner has a duty of care, not o nly 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 prem ises and, depending upon the circumstances, make any necessary repairs or warn of any discovered hazards. Thus, an invitee is entitled to the highes t level of protection under premises liability law. [ Id. at 596-597 (citations omitted; alterations in original).]

In Stitt , the Michigan Supreme Court re cognized that earlier cases dive rged with regard to the “circumstances [that] create invitee status.” Id . at 603. As such, it stated, “In harmonizing our cases, we conclude that the imposition of additional expens e and effort by the landowner, requiring the landowner to inspect the premises and make them s afe for visitors, must be directly tied to the owner’s commercial business interests.” Id . at 603-604. Thus, the Court “h[e]ld that the owner’s reason for inviting persons onto the premises is th e primary consideration when determining the visitor’s status[.] In order to establish invi tee status, a plaintiff must show that the premises were held open for a commercial purpose.” Id . at 604. See also Sanders v Perfecting Church , 303 Mich App 1, 5; 840 NW2d 401 (2013) (“[A] plaintiff will b e granted invitee status only if the purpose for which she was invited on to the owner’s property was-4- directly tied to the owner’s commercial business interests.” [ Quotation marks and citation omitted.]). 2

Here, there is no dispute that plaintiff was invited onto defe ndants’ property for the sole purpose of retrieving a donation from defendants’ home on behal f of Purple Heart. While it is possible that defendants would receive a pecuniary gain from th eir charitable donation to Purple Heart in the form of a tax deduction, it is apparent that defen dants were not receiving pecuniary gain directly from plaintiff, A-1 Recycling, or even Purple Hea rt as a result of a commercial or business relationship. As the Michigan Supreme Court stated in Stitt , “[t]he solicitation of entirely voluntary donations by a nonprofit organization is pla inly not a commercial activity.” Stitt, 462 Mich at 606 n 11. Similarly, given Purple Heart’s request for voluntary donations, defendants’ invitation for plaint iff to enter their property in order to collect the charitable donation for Purple Heart was clearly not “directly tied to [ defendants’ ] commercial business interests.” Id . at 603-604. Therefore, there is no genuine issue of material fact that plaintiff did not share a commercial relationship with defendants. As a resu lt, plaintiff was a licensee as a matter of law.

Because plaintiff was a licensee, defendants had no duty to wa rn him unless they knew of, or had reason to know of, a hidden danger on their property that involved an unreasonable risk of harm, and plaintiff did not know, or have reason to kno w, of that hidden danger and the risk that it involved. Id . at 596; Kosmalski , 261 Mich App at 65. As stated above, a landowner does not owe a duty of insp ection to a licensee. Stitt , 462 Mich at 596.

Here, plaintiff presented no evid ence that defendants were awar e of the black ice on which he fell. Further, even if defendants were aware, or had reason to be aware, of the black ice, the record includes no evidence that the condition was unr easonably dangerous. Whether a condition constitutes an unreasonably dangerous condition is a question of law. Bullard v Oakwood Annapolis Hosp , 308 Mich App 403, 410; 864 NW2d 591 (2014). A condition is unreasonably dangerous if it poses “a substantial risk of death or severe injury.” See Lugo v Ameritech Corp, Inc , 464 Mich 512, 518; 629 NW2d 384 (2001). In addition, “an unr easonably dangerous hazard must be just that—not just a dangerous hazard, but one that is unreasonably so. And it must be more than theoretically or retrospectivel y dangerous, because even the m ost unassuming situation ca n often be dangerous under the wrong set of circumstances. Bullard , 308 Mich App at 410, quoting Hoffner v Lanctoe , 492 Mich 450, 472; 821 NW2d 88 (2012) (quotation marks omitted).

Here, there is no indication that the patch of black ice on whi ch plaintiff fell posed “a substantial risk of death or severe injury.” Lugo , 464 Mich at 518. 3 This Court has expressly

2 Plaintiff’s claim that he had invitee status based on his “mut ually beneficial relationship” with defendants, given defendants’ benefit of having unwanted items retrieved from their home, is unavailing in light o f the clear rule under Stitt and its progeny that invitee status only arises when the premises is held open for a commercial business purpose. Stitt , 462 Mich at 604.

3 Like in the trial court, plaintiff does not now assert that th e ice on which he fell was unreasonably dangerous.-5- recognized that “ice is not unrea sonably dangerous in and of it self.” Bullard , 308 Mich App at 411. Likewise, unlike “an unguarded thirty foot deep pit in th e middle of a parking lot,” which has been recognized as an unreas onably dangerous condition, Lugo
, 464 Mich at 518, this Court has reasoned that “[f]alling several feet to the ground is not the same as falling an extended distance such as into a thirty-foot deep pit,” and “it cannot b e expected that a typical person [falling a distance of several feet] would suffer severe injury or a substantial risk of death,” Corey v Davenport College of Business (On Remand) , 251 Mich App 1, 7; 649 NW2d 392 (2002) (quotation marks and citation omitted).

Accordingly, we cannot conclude that black ice, which may cause a person to fall several feet to the ground, constitutes an unreasonably dangerous condi tion. Thus, even if we assume, arguendo, that defendants knew or had reason to know about the black ice, defendants did not have a duty to warn plaintiff about the condition. Stitt , 462 Mich at 596; Kosmalski , 261 Mich App at 65.

IV. CONCLUSION

There are no genuine issues of material fact regarding whether plaintiff was a licensee on defendants’ property and whethe r defendants had a duty to warn plaintiff about the black ice. Thus, the trial court properly gr anted summary disposition in d efendants’ favor.

Affirmed.

/s/ Kathleen Jansen /s/ William B. Murphy /s/ Michael J. Riordan