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________________________________ Michigan Supreme Court Lansing, Michigan 48909

C hief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion

Stephen J. Markman

FILED APRIL 24, 2002

ANTON PERKOVIQ, Plaintiff-Appellee,

v No. 116059 DELCOR HOMES—LAKE SHORE POINTE, LTD., Defendant-Appellant.

PER CURIAM The plaintiff was injured when he fell from the roof of

a partially constructed house as he was preparing to paint in the course of his employment. He brought this action against defendant, the owner and the general contractor of the subdivisiondevelopment. The cir cuit court granted summary dispositionfor the defendant. The Court of Appeals reversed inpart, finding that genuine issues of material fact existed regarding plaintiff’s clai m that defendant, as owner of the property, was liable on a premises liability theory. We conclude that the evidence before the circuit court on the motion for summary disposition did not provide a basis forestablishing premises liability. We thus reverse the judgment of the Court of Appeals and reinstate the circuit court’s judgment for the defendant. I Defendant Delcor Homes—Lake Shore Pointe, Ltd., was both

owner and general contractor of a residential subdivision development near Howell in Livingston County. The plaintiff

was employed by a subcontractor on the project, Kalaj Painting and Decorating. Delcor had hired Kalaj to perf orm pa inting services at the project, which involved construction of more than two hundred homes. On November 22, 1995, the plaintiff was working on the roof of a home under construction when he slipped on ice or frost that had formed on the roof, falling approximatelytwenty feet to the ground and suffering serious injuries. The plaintiff and a coworker had been instructed to paint the upper level exterior of three homes. They went to one of them. The rough roof of the house consisted only of plywood sheeting. Shingles were not yet in place. Inhis deposition, the plaintiff testified that several 2 x 4 slats of wood were nailed at the lower edge of the roof to provide footing. This

was insufficient to allow plaintiff to climb all the way up the roof to paint the exterior wal ls. He was attempting to nail additional slats onto the roof when he slipped on the ice or frost on the plywood and fell.

2Plaintiff filed this action, alleging that the defendant

was liable on the basis of its role as a general contractor on th e pro ject and its status as owner of the property. After discovery, the defendant moved for summary disposition under MCR2.116(C)(10), contending that no genuine issue of material fact existed and that it was entitled to judgment as a matter of law. The circuit court granted the motion and entered judgment for the defendant. The plaintiff appealed. II The Cour t o f Appeals first dealt with the question of defendant’s liability on the basis of its status as the general contractor onthe project. The plaintiff’s complaint included allegations about the defendant’s failure to provide

a safe workplace and appropriate safety equipment, as well as other claims about its operation of the construction site. The Court of Appeals analyzed the principles applicable to suchclaims and con cluded that the plaintiff had failed to establisha genuine issue of material fact regarding those theories. The plaintiff has not challenged that aspect of the Court of Appeals decision in this Court. The Court of Appeals then tu rned to plaintiff’s theory that defendant was liable on the basis of its status as owner

or occupier of the premises. It was not disputed that plaintiff, as an employee of a subcontractor on the project,

was an invitee. The Court statedthat an invitor’s legal duty is t o exercise reasonable care to protect invitees from 3unreasonable risk of harm caused by a dangerous condition of the land that the landowner knows or should know that invitees will not discover, realize, or protect themselves against. Bertrandv AlanFord, Inc , 449 Mich 606, 617-618; 537 NW2d 185 (1995). If the dangerous conditions are hidden or latent, the owner has a duty to warn the invitee of the dangers. Knight v Gulf & Western Properties, Inc , 196 Mich App 119, 124-125; 492 NW2d 761 (1992). The Co urt o f Appeals stated that even where conditions are known or obvious to the invitee, the

owner may still be required to use reasonable care to protect the invitee from the danger if the risk of harm is unreasonable. The Court of Appeals concluded that genuine issues of material fact existed regarding premises liability: Here, it is undisputed that defendant is both owner and developer/general contractor of the subdivisionunder construction, and as possessor of the land, defendant h as t he legal duty to protect its invitees. The danger of slipping off a r oof appears to be open and obvious, especially where there is frost on the roof and plaintiff himself and his co-worker testified that they told defendant that the roof was icy; thus, the failure to warn theory fails to establish liability. Further, the evidence does not establish a defective physical structure; instead, it appears that there was frost or ice on the roof because of the weather c ondi tions. Such conditions may make the situation unreasonably dangerous, but the question arises as to whether defendant should expect that plaintiff, who pain ts for a living, will fail to protect himself against the danger. The evidence presented, including the contract and deposition testimony, is conflicting as to who was responsible for providing safety equipment and ensuring its use; either the general contractor, the subcontractor or both. A question exists as to 4whether defendant should have anticipated that the ice/frost on the roof would cause physical harm to a painter notwithstanding its known and obvious danger. Based on the evidence presented and giving the b enefit of reasonable doubt to the nonmoving party, a genui ne i ssue of material fact exists as to whether defendant could be liable u nd er the theory of premises liability; thus, we reverse the trial court’s grant of summary disposition in favor of defendant with regard to t his theory of liability. [Unpublished opinion per curiam, issued October 1, 1999.] [1] III The defendant has filed an application for leave to appeal to this Court. We held the application in abeyance for Lugo v Ameritech Corp, Inc (Docket No. 112575), which has now been decided. 464 Mich 512; 629 NW2d 384 (2001). The appeal involves a trial court’s ruling on a mot io n for summary disposition, which we review de novo. Maiden v Rozwood , 461 Mich 109, 118; 597 NW2d 817 (1999). IV This case presents a clas sic example of an open and obvious danger in the premises liability setting. There was nothing hidden about the frost or ice on the roof, and anyone encountering it would become aware of the slippery conditions. In Bertrand, supra , we considered the effect of an open and obvious danger on the duty o f the owner or possessor of

1Th e Co urt of Appeals also rejected plaintiff’s claim that the circuit court should have permitted amendment of the pleadings to include a negligent selection/retention of subcontractor claim. The plaintiff has not cross-appealed that issue. 5land. Referring to 2 Restatement Torts, 2d, §§ 343 2 and 343A, 3 we explained: The invitor’s legal duty is “to exercise reasonable care to protect invitees from an unreasonable risk of harm cause d by a dangerous condition of the land” that the landowner knows or should know the invitees will not discover, realize, or protect themselves against. [Quoting Williams v Cunningham Drug Stores, Inc , 429 Mich 495, 499; 418 NW2d 381 (1988).] * * * Wh ere a condition is open and obvious, th e sc ope of the possessor’s duty may be lim ited . While there may be no obligation to warn of a fully obvious condition, the possessor sti ll m ay have a dutyto protect an invitee against foreseeably dange rous conditions. Thus, the open and obvious doctrine does not relieve the invitor of his general duty of reasonable care. When§§ 343 and 343A are read together, the

2 Apossessor of land is subject to liability for physical harm caused to his inv itees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise r ea sonable care to protect them against the danger.

3 Apossessor of land is not liab le t o his invitees for physical harm caused to them by any activityor condition on the land wh ose danger is knownor obvio us to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. 6rule generated is that if the particular activity or condition creates a risk of harm only because the invitee does not discov er the condition or reali ze its danger, then the open and obviou s doctrine wi ll cut off liability if the invitee should have discovered the condition and realized its danger. On the other hand, if the risk of harm remains unreasonable, despite its obviousness or despite knowledge of it by the invitee, then the circumstanc es maybe such that the invitor is required to undertake reasonable precautions. [449 Mich 609, 610-611 (emphasis in original).] Bertrandinvolved a step in an automobile dealership. We held that the step was an open and obvious conditionand that liabilitycould be imposed only if something unusual made the condition unreasonably dangerous: [B]ecause the danger of tripping and falling ona step is generally open and obvious, the failure to warn theory cannot establish liability. However, there may be special aspects of th ese particular steps that make the risk of harm unreasonable, and, accordingly, a failure to remedy the dangerous condition ma y b e found to have breached the duty to keep the prem ises reasonably safe. [449 Mich 614.] In summary, because steps a re the type of everydayoccurrence that people encounter, under most circumstances, a reasonably prudent person will look where he is going, will obs erve the ste ps, and will take appropriate care for his ow n safety. Under ordinary circumstances, the overriding public policy of encouraging people to take reasonable care for their ownsafety precludes imposing a dut y o n the possessor of land to make ordinarysteps “foolproof.” Therefore, the risk of harm is not unreasonable. However, where there is something unusual about the steps, because of their “character, location, or surrounding conditions,” then the duty of the possessor of land to exercise reasonable care remains. [449 Mich 616-617.] We rei ter ated those principles in our recent Lugo decision at 516-517:

7“[I]f the particular activity or condition creates a risk o f ha rm only because the invitee does not discover the condi ti on or realize its danger, then the open and obvious doctrine will cut off liabilityif the invitee should have discovered the condition and realized its danger. On the other hand, if the risk of harm remains unrea sonable, despite its obviousness or despite knowledge of it by the invitee, then the circumstances may be such that the invitor is required to undertake reasonable precautions.“ In sum, the general rule is t hat a premises possessor is not required to pr otect an invitee fromopen and obvious d an gers, but, if special aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to protect invitees from that risk. [Emphasis in original.] Applying those principles to the f acts of this case, there is no question that the condition of the roof was open and obvi ous. Thus, the question is whether, despite its obviousness and plaintiff’ s kno wledge of it, a factfinder could determine that defendant breached a duty of reasonable

care in the circumstances. We conclude that it could not, and that summary dispositionwas properly granted. In its status

as owner, defendant had no reason to foresee that the only persons who would be on the premises, various contractors and their employees, would not take appropriate precautions in dea ling with the open and obvious conditions of the constructionsite. There were no special aspects of this conditionthat made the open and obvious risk unreasonably dangerous.

8The Court of Appeals seems to have confused general contractor liability with t he l iability of a possessor of premises. In explaining its conclusion that defendant could be liable on a premises liability theo ry, th e Court used analysis that was irrelevant to th at theory and would be applicable only to a claim against a general contractor. It stated: The evidence presented, including the contract and deposition testimony, is conflicting as to who was responsible for providing safety equipment and ensuring its use; either the general contractor, the subcontractor or both. The fact that defendant may have additional duties in its role as general contractor, however, does not alter the nature of the duties owed by virtue of its ownership of the premises. 4 As owner, it had no reason to foresee that the condition of the premises would be unreasonably dangerous, as the roof lacked any special aspects that would make it so. It could not expect that employees of subcontractors working on the house would fail to ta ke nec essary precautions to guard agai nst th e obvious danger of the slippery condition of the roof.

4As noted above, pla intiff’s other claim was that defendant, as general contractor, did not take appropriate measures to insure the safety of the job site. However, the lower courts have held that this case does not come within the exceptions to the general principle that general contractors are not liable for injurie s to subcontractors’ employees. Plaintiff has not appealed that determination, and it is not before us. 9Inshort, plai ntif f has presented no evidence that the conditionof the roof was unreasonably dangerous for purposes of premises liability. The mere presence of ice, snow, or frost on a sloped rooftop generally does not create an unreasonablydangerous condition. Plaintiff has not articulated any action that could reasonably be expect ed o f possessors of land in Michigan to protect against the obvious dangers that arise when snow, ice, or frost accumulate on sloped rooftops. To avoid summary disposition on this type of claim, a plaintiff must present evidence of “special aspects” of the condition that differentiate it fromthe typical sloped rooftop containing ice, snow, or frost. Lugo , supra . Accordingly, we reverse the judgment of the Co urt of Ap peals in part, and reinstate the circuit court’s grant of summary disposition in favor of the defendant. C ORRIGAN , C.J., and T AYLOR , Y OUNG , and M ARKMAN , JJ., concurred.

10S T A T E O F M I C H I G A N SUPREME COURT

ANTON PERKOVIQ,

v Plaintiff-Appellee, No. 116059 DELCOR HOMES-LAKE SHORE POINTE, LTD., Defendant-Appellant.

____________________________________ W EAVER , J . ( concurring ). I concur in the result of the majority opinion. Plaintiff presented no eviden ce t hat the icy roof was unreasonably dangerous despite its obviousness. C AVANAGH and K ELLY , JJ., concurred with WEAVER , J.