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### STATE OF MICHIGAN

COURT OF APPEALS

WILLIAM BASACCHI,

Plaintiff-Appellee, UNPUBLISHED January 17, 2017

v No. 329503
Oakland Circuit Court FAWZI SIMON, INC.,

Defendant,

and

SIMON LAND DEVELOPMENT GROUP LLC, LC No. 2014-142733-NO

Defendant-Appellant.

Before: R IORDAN , P.J., and F ORT H OOD and S ERVITTO , JJ.

P ER C URIAM

.
In this premises liability ac tion, defendant Simon Land Develo pment Group LLC appeals by leave granted the trial court’ s order denying its motion for summary disposition under MCR 2.116(C)(10). 1 We reverse and remand for entry of an order granting defendan t’s motion for summary disposition.

I. FACTUAL BACKGROUND

On July 14, 2014, just after sunset, plaintiff rode his bicycl e, which was not equipped with a light, to defendant’s gas station to purchase some snack s. It was dark outside at the time, and plaintiff had never been to t hat gas station previously.

As plaintiff approached the station, he noticed that the front area was busy. In order to avoid coming into contact with th e pedestrians and vehicles, pl aintiff decided to ride his bike to the back of the station. As he approached the rear, he noticed that the area was darker than the

1 Basacchi v Fawzi Simon Inc , unpublished order of the Court of Appeals, entered November 4

, 2015 (Docket No. 329503).-2- front of the station because it was not illuminated by artifici al lighting from streetlights or ambient lighting from vehicles in the front of the station. Pl aintiff stated at his deposition that it was “very dark,” but he still could see where he was going beca use “[t]he front of the building was lit. It cast some light to the back, not much.” Despite t he dim conditions, plaintiff decided to proceed to the back area in order to avoid the activity in t he front. He was “looking ahead” or “straight forward” as he was traveling between 10 and 15 miles per hour.

Suddenly, the back tire of his bike dropped inside the edge of a recessed drain cover 2 sitting several inches below the pavement, causing him to lose control of his bicycle. At his deposition, plaintiff testified th at he saw the drain cover “[a ]t the last instant” before he
encountered it and im mediately recognized i t as a drain cover, but he was not able to see how big it was and “[d]id not expect the drop.” 3 He tried to brake and regain control, but was unable to
do so. He then fell over the ri ght side of his handlebars. As a result of the fall, plaintiff suffered two broken fingers, his thumbna il was ripped off, and he had so me scrapes and bruises.

Photographs of the drain cover and the immediate area surround ing it show that it was in a deteriorated state. It was sunken, sitting several inches lo wer than the pavement, and there was a gap between the cover and the pavement around the edge of the cover. There also were cracks in the surrounding cement and folia ge growing over portions of the cover. The “drop” between the pavement and the sunken drai n cover varied from four and a half to seven inches depending
on the area measured.

Plaintiff initiated this premises liability action, claiming t hat defendant was liable for his injuries. Defendant moved for summary disposition pursuant to MCR 2.116(C)(10), arguing,

inter alia , that it did not owe plaintiff any duty because the danger pos ed by the sunken drain cover was a common, open and obvi ous hazard that lacked any spe cial aspects making it unreasonably dangerous. Defendant also contended that the dark ness itself was an open and obvious condition. In response, plaintiff argued that a genuin e issue of material fact existed regarding whether the sunken drain cover was open and obvious i n light of the significant drop between the pavement and the drain cover and the dark, unlit co nditions under which plaintiff encountered it. Alternatively, if the court determined that th e hazard was open and obvious, plaintiff contended that the darkness was a special aspect that created an unreasonable risk of
harm and made the sunken drai n cover a hidden danger.

After holding a hearing, the tri al court denied defendant’s mot ion, stating that, viewing the evidence in the light most favorable to plaintiff, the haza rd was “not your basic drain,” it had “become depressed” with “gaping holes around the side,” and “[i ]t’s almost as if it creates an

2 The parties refer to the allege d hazard as a dr ain hole cover, drain cover, or manhole cover. We
will refer to the hazard as a “drain cover.”

3 Later in his testimony, plaintiff changed his position, ultima tely stating that he did not see the sunken drain cover before he struck it, but saw it when he hit the drain cover immediately before
he fell. He also testified that he did not see the drain cover beforehand because it was “too
dark.”-3- optical illusion.” The court also noted that plaintiff was not arguing that the darkness alone rendered the defect no longer ope n and obvious; rather, plainti ff was arguing that the very nature of the sunken drain cover rendered it not open and obvious. In addition, the court noted that published Michigan caselaw had held “that darkness can create a jury question [as to] whether . . . the hazard was open and obvious.”

II. STANDARD OF REVIEW

A trial court’s grant or denial of a motion for summary dispos ition is reviewed de novo

. Hoffner v Lanctoe

, 492 Mich 450, 459; 821 NW2d 88 (2012). “A motion made under MC R 2.116(C)(10) tests the factual sufficiency of a claim, and when the proffered evidence fails to establish a genuine issue of material fact, the moving party is entitled to judgment as a matter of
law.” Id. “When deciding a motion for summary disposition under this ru le, a court must consider the pleadings, affidavits, depositions, admissions, an d other documentary evidence then filed in the action or submitted by the parties in the light mo st favorable to the nonmoving party.” Bialick v Megan Mary, Inc , 286 Mich App 359, 362; 780 NW 2d 599 (2009), citing MCR 2.116(G)(5), and Wilson v Alpena Co Rd Comm , 474 Mich 161, 166; 713 NW2d 717 (2006). “There is a genuine issue of material fact when reasonable mind s 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). “When no material issu es of fact exist, the existence of a legal duty is a que stion of law for the court to decide.” Hoffner , 492 Mich at 461 n
12.

III. ANALYSIS

Defendant argues that it had no legal duty to warn or protect plaintiff from the danger presented by the sunken drain cover because it was open and obv ious and lacked special aspects that made it unreasonably dangerous. Plaintiff contends that t he danger was not open and obvious, but, even if it was, the depth of the drain cover and the darkness under which he encountered it constitute speci al aspects that made the conditi on unreasonably dangerous. We agree with defendant that there is no genuine issue of material fact that the sunken drain cover was open and obvious and lacked sp ecial aspects, such that defe ndant was entitled to summary disposition as a matter of law.

“A plaintiff who brings a premises liability action must show (1) the defendant owed [him] a duty, (2) the defendant breached that duty, (3) the bre ach was the proximate cause of [his] injury, and (4) [he] suffered damages.” Bullard v Oakwood Annapolis Hosp , 308 Mich App 403, 408; 864 NW2d 591 (2014) (quotation marks and citation omi tted; alternations in original). “In Michigan, a premises possessor owes a duty to use reasonabl e care to protect invitees from an unreasonable risk of harm caused by dangerous conditions on the premises . . . ” 4 Hoffner

, 492 Mich at 455. See also id . at 460; Lugo v Ameritech Corp, Inc , 464 Mich 512, 516; 629 NW2d 384 (2001). “Michigan law provides liability for a breach of this duty of ordinary care

4 The parties do not dispute that plaintiff, a customer of defen dant’s gas station, was on defendant’s property as an invitee.-4- when the premises possessor knows or should know of a dangerous condition on the premises of which the invitee is unaware and fails to fix the defect, guard against the defect, or warn the
invitee of the defect.” Hoffner , 492 Mich at 460. See also Lowrey v LMPS & LMPH, Inc

, ___ Mich ___, ___; ___ NW2d ___ (2016) (Docket No. 153025); slip op at 6, quoting Hoffner , 492 Mich at 460. But “[t]he possessor of land owes no duty to prot ect or warn of dangers that are open and obvious because such dangers, by their nature, apprise an invitee of the potential hazard, which the invitee may then take reasonable measures to avoid.” Hoffner , 492 Mich at 460-461 (quotation marks and citations omitted). See also Riddle v McLouth Steel Products Corp , 440 Mich 85, 94; 485 NW2d 676 (1992) (“[A] possessor of land does not owe a duty to protect his invitees . . . [from] dangers that are so obvious a nd apparent that an invitee may be expected to discover them himself.”). “Whether a danger is ope n and obvious depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection. This is an objective standard , calling for an examination of the objective nature of the c ondition of the premises at issue. ” Hoffner , 492 Mich at 461 (quotation marks and citations omitted).

However, when there is something unusual about an open and obvi ous condition due to its “character, location, or su rrounding conditions, then the d uty of the possessor of land to
exercise reasonable care remai ns. If the proofs create a quest ion of fact that the risk of harm was unreasonable, the existence of duty as well as breach become qu estions for the jury to decide.” Bertrand v Alan Ford, Inc , 449 Mich 606, 617; 537 NW2d 185 (quotation marks and citation s omitted). Similarly, “[u]nder [the] limited [‘special aspects’ ] exception [to the open and obvious doctrine], liability may be imposed only for an ‘unusual’ open and obvious condition that is ‘unreasonably dangerous’ because it ‘present[s] an extremely hi gh risk of severe harm to an
invitee’ in circumstances where there is ‘no sensible reason fo r such an inordinate risk of severe harm to be presented.’ ” Hoffner , 492 Mich at 462 (ci tation omitted).

First, we disagree with the trial court’s finding that there w as a genuine issue of material fact as to whether the nature of the hazard presented by the su nken drain cover was open and obvious. The photographs of the drain cover and the immediate area surrounding it in the lower court record reveal a deteriorated, recessed drain cover with a plainly visible “drop” or depression of several inches below the pavement. Notably, the drain cover is surrounded by a large area of light-colored pavem ent that makes the area distin ct from the rest of the dark-colored pavement in the lot. Thus, even though there is a significant “drop” between the sunken drain cover and the rest of the pavement, the photographs reveal that the danger it presents was readily observable, at least under the normal daylight conditions depic ted in the pictures. Further, a sunken drain cover presents a c ommon, everyday hazard—equivalen t to a pothole or unevenness in pavement—which generally constitutes, by its very nature, an open and obvious condition that a reasonably prudent person would ordinarily be expected to dis cover. 5 Plaintiff also testified

5 See Lugo , 464 Mich at 517, 523 (“[P]otholes in pavement are an ‘everyda y occurrence’ that ordinarily should be observed by a reasonably prudent person.”) ; Bertrand , 449 Mich at 614-621 (explaining when steps or differe nces in floor levels are open and obvious); Weakley v City of Dearborn Heights , 240 Mich App 382, 385; 612 NW2d 428 (2000) (“[S]teps and diff ering floor levels, such as . . . uneven pavement . . . , are not ordinaril y actionable unless unique-5- during his deposition that he i mmediately recognized the drain cover when he noticed it, although he did not realize the magnitude of the “drop.” Thus, even in viewing the evidence presented below in the light most favorable to plaintiff, reaso nable minds could not differ in concluding that an average person with ordinary intelligence wo uld discover the sunken drain cover and appreciate the dange r it posed upon casua l inspection . See Allison , 481 Mich at 425.

Next, the evidence shows that t here is nothing about the drain cover’s character, location, or surrounding conditions that demonstrates a question of fact as to whether the risk of harm posed by the cover was unreasonable. See Bertrand , 449 Mich at 617. Likewise, there is nothing about the drain cover or the surrounding circumstances that constitutes a special aspect removing the hazard from the scope of the open and obvious doct rine. See Hoffner , 492 Mich at 461-462. Michigan law recognizes “two instances in which the s pecial aspects of an open and obvious hazard could give rise to liability: when the danger is unreasonably dangerous or when the danger is effectively unavoidable .” Hoffner , 492 Mich at 463. Plaintiff does not contend that the effectively unavoidable exception is implicated here. See id. at 456, 465. To qualify under the unreasonably dangerous exception, the condition must presen t an ‘“extremely high risk of severe harm to an invitee,”’ id. at 462 (quotation marks and citation omitted), such as “a substantial risk of death or severe injury,” Lugo

, 464 Mich at 518-519. “[N]either a common
condition nor an avoidable condit ion is uniquely dangerous.” Hoffner , 492 Mich at 463, citing Lugo , 464 Mich at 520.

Plaintiff claims that the dange r posed by the sunken drain cove r was not open and
obvious because he encountered it in the darkness of night in t he back area of the gas station, which was not illuminated with streetlights or ambient lighting from vehicles in the front of the station, so that the darkness pr evented him from seeing the haz ard or appreciating the gravity of the “drop.” Plaintiff is correct that this Court has previousl y concluded that darkness may render
a hazard—which would have been open and obvious i n a well-lit s pace—not open and obvious if an average person would have been unable to discover it upon ca sual inspection under the circumstances. See, e.g., Abke v Vandenberg , 239 Mich App 359, 362-363; 608 NW2d 73 (2000); Knight v Gulf & Western Props, Inc , 196 Mich App 119, 126; 492 NW2d 761 (1992). 6 Nevertheless, we disagree with plaintiff that the ordinary nigh ttime darkness in this case rendered the sunken drain cover not open and obvious. The nigh ttime darkness and lack of lighting in this case are disti nguishable from the facts in Abke and Knight and do not constitute a unique circumstances that rendered the drain cover not open and obviou s or made it unreasonably dangerous. Abke and Knightconcerned plaintiffs who fell due to unexpected dropoffs from indoor loading docks in dark areas, which constituted hazards much more significant and dangerous than the slight drop between the pavement and dra in cover in this case. Compare

Abke , 239 Mich App at 360, 362, and Knight , 196 Mich App at 121, 127-128, with Lugo , 464 Mich at 520; Bertrand , 449 Mich at 616; Weakley v City of Dearborn Heights , 240 Mich App

circumstances surrounding the area in issue made the situation unreasonably dangerous.”) (quotation marks and citation omitted), remanded for reconsider ation on other grounds 463 Mich 980 (2001); Novotney v Burger King Corp , 198 Mich App 470, 474-477; 499 NW2d 379 (1993) (discussing the open and obvious na ture of a sidewalk with a ha ndicap access ramp).

6 Accordingly, we reject defendant’s claim that darkness never c an change the character of an otherwise open and obvious condition.-6- 382, 385; 612 NW2d 428 (2000), remanded for reconsideration on other grounds 463 Mich 980 (2001); Novotney v Burger King Corp , 198 Mich App 470, 474; 499 NW2d 379 (1993).

Moreover, as defendant emphasizes , inadequate lighting may cons titute an open and obvious condition, in and of itself, that an invitee reasonably may be expected to discover. Singerman v Muni Serv Bureau, Inc , 455 Mich 135, 141; 565 NW2d 383 (1997). In Singerman

, the plaintiff contended that his injuries were caused by inadeq uate lighting in a hockey rink, which prevented him from observing and avoiding a hockey puck. Id . at 141. It was undisputed that the inadequate lighting was an open and obvious condition. Id . The Michigan Supreme Court explained that when poor lighting is an open and obvious condition,

the question for the courts to decide is whether the risk of ha rm remains unreasonable, despite its obviousness or despite the invitee’s knowledge of the danger. If the court finds that the risk is still unreasonable , then the court will
consider whether the circumstances are such that the invitor is required to undertake reasonable precautions. If so, then the issue become s the standard of care and is for the jury to decide. [ Id . at 142-143.]

Consequently, the Court concluded:

[H]ere there was nothing unusua l about the inadequate lighting in the hockey rink to cause such a duty to remain. Plaintiff was an adult and an experienced hockey player. The lighting in the rink is alleged to have been consi stently inadequate, not subject to unexpected fluctuations or other changes. There was nothing to prevent plaintiff from realizing that the rink was inadequately lighted. Nor was there any chance that he would forget the potentially hazardous condition, because the condition was constantly before him. Finally, plai ntiff was not compelled to use the rink for w ork, or profit, or any other ove rriding or substantial motivation. He chose to partici pate in a dangerous sport under conditions that he knew to be dangerous. [ Id . at 144.]

Similarly, in this case, plaintiff explicitly stated in his dep osition testimony that he recognized that the area was dark and not well lit as he rode h is bicycle into the back area of the gas station. Nonetheless, he made a conscious decision to cont inue riding into the darkness instead of changing his course and riding toward the well-lit a rea at the front of the station. In addition, plaintiff stated duri ng his deposition that “the only way [he] would [have] see[n] this manhole cover” were if he had been looking down at the ground a s he was riding, and that he readily recognized the hazard as a drain cover when he noticed it either (1) the instant before he hit it, or (2) at the moment he hit it immediately before he fe ll. Through this testimony, plaintiff implicitly acknowledged that the hazard and the risk it present ed would have been visible to him, or to any other average person with ordinary intelligence, upon casual inspection by looking down toward the pavement before proceeding. Plaintiff also exp ressly acknowledged that he was looking straight ahead and not at the ground as he was ridi ng. Given the fact that darkness always follows the setting of the sun, and that nighttime darkn ess does not subside until the sun invariably rises again at dawn, an average individual of ordina ry intelligence would have been on notice that it was necessary to advance cautiously into the dar kened area behind the station in case he or she encountered a common, everyday hazard, such as a drop in the pavement. Cf.-7- Hoffner , 492 Mich at 460-461 (“The possessor of land owes no duty to p rotect or warn of dangers that are open and obvious because such dangers, by thei r nature, apprise an invitee of the potential hazard, which the invitee may then take reasonable me asures to avoid.”) (quotation marks and citation omitted).

Moreover, there is absolutely n o indication that sunken drain c over was unreasonably dangerous, even in the dark. See Hoffner , 492 Mich at 462-463. Unlike “an unguarded thirty foot deep pit in the middle of a parking lot,” which has been r ecognized as an unreasonably dangerous condition, Lugo

, 464 Mich at 518, “[f]alling several feet to the ground is not t he same as falling an extended distance,” and “it cannot be expected th at a typical person [falling a distance of several feet] would suffer severe injury or a subst antial 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; second alteration in ori ginal).

Accordingly, for all of these r easons, we reject plaintiff’s cl aim that the darkness and lack
of illumination rendered the sunke n drain cover not open and ob vious, presented an unreasonable risk of harm, or constituted a special aspect that removed the sunken drain cover from the scope of the open and obvious doctrine. Plaintiff failed to proffer any evidence indicating that it would be unreasonable to expect an average person with ordinary intel ligence to discover the hazardous nature of the sunken drain in ordinary nighttime darkness, see Hoffner , 492 Mich at 461, or that
the sunken drain cover was unreasonably dangerous, see id . at 462.

Because there is no genuine issue of material fact, the trial c ourt erred in denying defendant’s motion for summary disposition. See id . at 459. 7

IV. CONCLUSION

The trial court erred in denyi ng defendant’s motion for summar y disposition, as there is no genuine issue of material fact that the sunken drain cover w as an open and obvious condition without any special aspects.

Reversed and remanded for entry of an order granting defendant’ s motion for summary disposition. We do not r etain jurisdiction.

/s/ Michael J. Riordan
/s/ Karen M. Fort Hood
/s/ Deborah A. Servitto

7 In light of this conclusion, we need not address defendant’s a lternative argument that summary disposition was appropriate on t he basis that it lacked notice of an unreasonably dangerous condition on its premises. The t rial court did not address thi s issue, and it is not necessary for a proper determination of this case. Smith v Foerster-Bolser Constr, Inc , 269 Mich App 424, 427; 711 NW2d 421 (2006).