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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 Opinion Robert P. Young, Jr. 

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
 

subdivision development. The circuit court granted summary
 

disposition for the defendant. The Court of Appeals reversed
 

in part, finding that genuine issues of material fact existed
 

regarding plaintiff’s claim 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 for
 
establishing 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 perform painting
 

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
 

approximately twenty 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. In his 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 walls. He was attempting to
 

nail additional slats onto the roof when he slipped on the ice
 

or frost on the plywood and fell. 


2
 
Plaintiff filed this action, alleging that the defendant
 

was liable on the basis of its role as a general contractor on
 

the project and its status as owner of the property. After
 

discovery, the defendant moved for summary disposition under
 

MCR 2.116(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 Court of Appeals first dealt with the question of
 

defendant’s liability on the basis of its status as the
 

general contractor on the 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
 

such claims and concluded that the plaintiff had failed to
 

establish a 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 turned 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 stated that an invitor’s legal duty
 

is to exercise reasonable care to protect invitees from
 

3
 
unreasonable 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.
 

Bertrand v Alan Ford, 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 Court of 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
 

subdivision under construction, and as possessor of


the land, defendant has the legal duty to protect


its invitees. The danger of slipping off a roof


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 conditions. Such conditions may make


the situation unreasonably dangerous, but the
 

question arises as to whether defendant should
 

expect that plaintiff, who paints 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
 

4
 
whether 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 benefit of reasonable doubt to the nonmoving


party, a genuine issue of material fact exists as


to whether defendant could be liable under the
 

theory of premises liability; thus, we reverse the


trial court’s grant of summary disposition in favor


of defendant with regard to this 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 motion
 

for summary disposition, which we review de novo. Maiden v
 

Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).
 

IV
 

This case presents a classic 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 of the owner or possessor of
 

1
 The Court 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.
 

5
 
land. Referring to 2 Restatement Torts, 2d, §§ 3432 and 343A,3
 

we explained:
 

The invitor’s legal duty is “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. [Quoting


Williams v Cunningham Drug Stores, Inc, 429 Mich


495, 499; 418 NW2d 381 (1988).]
 

* * * 


Where a condition is open and obvious, the


scope of the possessor’s duty may be limited.


While there may be no obligation to warn of a fully


obvious condition, the possessor still may have a


duty to protect an invitee against foreseeably


dangerous 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
 

A possessor of land is subject to liability


for physical harm caused to his invitees 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 reasonable care to
 

protect them against the danger.
 

3
 

A possessor of land is not liable to his


invitees for physical harm caused to them by any


activity or condition on the land whose danger is


known or obvious to them, unless the possessor


should anticipate the harm despite such knowledge


or obviousness.
 

6
 
rule generated is that if the particular activity


or condition creates a risk of harm only because
 

the invitee does not discover the condition or
 

realize its danger, then the open and obvious


doctrine will 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


circumstances may be such that the invitor is
 

required to undertake reasonable precautions. [449


Mich 609, 610-611 (emphasis in original).] 


Bertrand involved a step in an automobile dealership. We
 

held that the step was an open and obvious condition and that
 

liability could be imposed only if something unusual made the
 

condition unreasonably dangerous:
 

[B]ecause the danger of tripping and falling
 

on a step is generally open and obvious, the


failure to warn theory cannot establish liability.


However, there may be special aspects of these


particular steps that make the risk of harm
 

unreasonable, and, accordingly, a failure to remedy


the dangerous condition may be found to have


breached the duty to keep the premises reasonably


safe. [449 Mich 614.]
 

In summary, because steps are the type of


everyday occurrence that people encounter, under


most circumstances, a reasonably prudent person


will look where he is going, will observe the
 

steps, and will take appropriate care for his own


safety. Under ordinary circumstances, the
 

overriding public policy of encouraging people to


take reasonable care for their own safety precludes


imposing a duty on the possessor of land to make


ordinary steps “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 reiterated those principles in our recent Lugo
 

decision at 516-517:
 

7
 
“[I]f the particular activity or condition


creates a risk of harm only because the invitee
 

does not discover the condition or realize its
 

danger, then the open and obvious doctrine will 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 circumstances may be such


that the invitor is required to undertake
 

reasonable precautions.“
 

In sum, the general rule is that a premises


possessor is not required to protect an invitee


from open and obvious dangers, 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 facts of this case,
 

there is no question that the condition of the roof was open
 

and obvious. Thus, the question is whether, despite its
 

obviousness and plaintiff’s knowledge 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 disposition was 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
 

dealing with the open and obvious conditions of the
 

construction site. There were no special aspects of this
 

condition that made the open and obvious risk unreasonably
 

dangerous.
 

8
 
 

The Court of Appeals seems to have confused general
 

contractor liability with the liability of a possessor of
 

premises. In explaining its conclusion that defendant could
 

be liable on a premises liability theory, the Court used
 

analysis that was irrelevant to that 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 take necessary precautions to guard
 

against the obvious danger of the slippery condition of the
 

roof. 


4
 As noted above, plaintiff’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 injuries to subcontractors’ employees.


Plaintiff has not appealed that determination, and it is not


before us.
 

9
 
In short, plaintiff has presented no evidence that the
 

condition of 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
 

unreasonably dangerous condition. Plaintiff has not
 

articulated any action that could reasonably be expected of
 

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 from the typical sloped
 

rooftop containing ice, snow, or frost. Lugo, supra.
 

Accordingly, we reverse the judgment of the Court of
 

Appeals in part, and reinstate the circuit court’s grant of
 

summary disposition in favor of the defendant.
 

CORRIGAN, C.J., and TAYLOR, YOUNG, and MARKMAN, JJ.,
 

concurred.
 

10
 
S 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. 

____________________________________ 

WEAVER, J. (concurring). 

I concur in the result of the majority opinion. 

Plaintiff presented no evidence that the icy roof was
 

unreasonably dangerous despite its obviousness.
 

CAVANAGH and KELLY, JJ., concurred with WEAVER, J.