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

revision until final publication in the Michigan Appeals Reports.

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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

FRANCESCA THOMAS,

Plaintiff-Appellant,

UNPUBLISHED

February 9, 2023

v No. 361529

Macomb Circuit Court

CITY OF WARREN, LC No. 2020-003316-NO

Defendant,

and

KANE REAL ESTATE INVESTMENTS 2 LLC,

Defendant-Appellee.

Before: M. J. KELLY, P.J., and BOONSTRA and SWARTZLE, JJ.

BOONSTRA, J. (dissenting).

I respectfully dissent. I would affirm the trial court’s well-reasoned opinion granting 

defendant’s1 motion for summary disposition under MCR 2.116(C)(10), on the ground that the 

alleged hazard was open and obvious. Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 

384 (2001).

The parties agree, as plaintiff admitted in her deposition testimony, that the lip on which 

she stubbed her toe–where the driveway meets the sidewalk—is clearly visible during the 

daytime.2 However, plaintiff argues that the lip’s open-and-obvious nature was obviated by 

 

1 By “defendant,” I mean defendant Kane Real Estate Investments 2 LLC, which owned and leased 

the single-family residence in the city of Warren that plaintiff was visiting at the time of the 

incident in question.

2 Plaintiff testified that she arrived at the residence in question at approximately 8:00 p.m. on the 

evening of June 20, 2020, and that it was light out at that time. The tenant whom plaintiff was 

visiting testified, by contrast, that plaintiff arrived “late in the evening, maybe nine, eight, nine, it 
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nightfall and by what she now contends was inadequate lighting as of the time she departed the 

home around midnight on June 20, 2020. In that regard, plaintiff acknowledges that a landlord

“doesn’t have to supply lighting,” but contends that a landlord is obliged to do so if it does not fix 

an otherwise-obvious hazard.

In that regard, I am compelled to note that, although the claimed inadequate lighting of the 

area has become the centerpiece of plaintiff’s claim, plaintiff’s complaint contains not one iota of 

allegation of any inadequacy of lighting. Moreover, and while I agree that the parties could have 

done more to develop the record—one way or another—as to the degree to which the various, 

available sources of lighting illuminated the area in question, the record reflects that those available 

sources of illumination included (a) a streetlight on the property in question; (b) an available front 

porch light and side porch light; and (c) shrubbery lighting; and (d) lighting on the garage. The 

record further reflects—and plaintiff agrees—that although defendant supplied various sources of 

lighting for the use of its tenant and the tenant’s social guests (including plaintiff), neither plaintiff 

nor the tenant turned on the porch light when plaintiff departed the residence around midnight on 

the date in question.3

As the trial court noted, Michigan courts have held that the danger of tripping on uneven 

pavement or steps is generally an open and obvious one, absent special aspects. See, e.g., Betrand 

v Alan Ford, Inc, 449 Mich 606, 616; 537 NW2d 185 (1995) (describing uneven pavement as an 

“everyday occurrence”); Weakley v City of Dearborn Hts, 240 Mich App 382, 385; 612 NW2d 

428 (2000) (noting that “steps and differing floor levels, such as . . . uneven pavement . . . are not 

ordinarily actionable unless unique circumstances surrounding the area in issue made the situation 

unreasonably dangerous”) (citation and quotation marks omitted, emphasis in original). And while 

this Court has held that, under some circumstances, darkness can preclude the application of the 

open and obvious doctrine, the cases cited in support of doing so in this case, Abke v Vandenberg, 

239 Mich App 359; 608 NW2d 73 (2000), and Knight v Gulf & Western Props, Inc, 196 Mich App 

119, 126; 492 NW2d 761 (1992), are distinguishable. Abke and Knight involved plaintiffs 

unexpectedly encountering darkened interior rooms with unexpected drop-offs; such a factual 

situation is far different from a mere common tripping hazard being obscured by typical and 

expected nighttime darkness. See Weakley, 240 Mich App at 385. Moreover, inadequate lighting 

may itself constitute an open and obvious condition. See Singerman v Muni Serv Bureau, Inc, 455 

 

was late,” and that “it was already dark when she arrived.” Sunset occurred in Warren, Michigan 

at 9:14 p.m. on June 20, 2020. See, e.g., http://www.suntoday.org/sunrisesunset/2020/june/20.html.

3 The tenant initially testified that plaintiff exited through the front door of the house and traversed 

a walkway from the front porch to the driveway; she then testified that plaintiff “probably” left via 

the side door and then traversed the driveway from there. Plaintiff testified that she exited from 

the side door. Either way, the record reflects that both the front door and the side door were 

equipped with porch lights, and the garage (which was located behind the side door) was equipped 

with additional lighting. Regardless of which door plaintiff used to exit the home, the record 

reflects that no one illuminated the porch light located at that exit; the record remains unclear 

whether the other porch light, the garage lights, or the shrubbery lighting were illuminated at the 

time of the incident.
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Mich 135, 141l 565 NW2d 383 (1997) (noting that there was “nothing unusual about the 

inadequate lighting” at issue and that “[t]here was nothing to prevent plaintiff from realizing that 

the [area] was inadequately lighted”).

I would hold that there is similarly nothing unusual about a portion of a residential 

driveway being dark at nighttime. Moreover, as noted, there was a nearby streetlight and other 

lighting supplied by defendant, including porchlights that neither plaintiff nor the tenant turned on

as plaintiff was leaving the home. The home inspections and tenant checklists provided to the 

lower court make no mention of any non-functioning exterior lighting. In other words, plaintiff, 

having perceived that the driveway was dark, could have simply asked (or expected) her friend to 

turn on the available porchlights or to have otherwise provided illumination of the area; failing 

that, she could have taken a different route to her car, such as the one she took—across the lawn—

upon arriving at the home that day.

Under these circumstances, I would hold that the alleged hazard was open and obvious. 

The lip of the driveway was open and obvious during the day, and the un-pleaded darkness that 

plaintiff now contends rendered it undiscoverable upon casual inspection was itself an open and 

obvious condition. Lugo, 464 Mich at 516. I note also that plaintiff, in her own deposition 

testimony, indicated that she was able to see the pavement of the driveway while walking on it 

before her fall and that there was nothing blocking her view, and further made very unclear 

statements regarding whether she was even looking where she was walking. Plaintiff also admitted 

that she had visited the residence on at least one earlier occasion; in her testimony regarding that 

earlier visit, she inconsistently asserted both that she walked “on the grass” and that she walked 

“close to the grass on the driveway” (which would have taken her across the very lip on which she 

later stubbed her toe). The tenant similarly testified that there was enough light for her to see 

where she was walking on the night in question. Therefore, I would conclude that plaintiff has not 

established a genuine issue of material fact that the alleged hazard was not discoverable on casual 

inspection. Rubin, 249 Mich App at 238.

The above is sufficient to warrant affirming the trial court. But I additionally note that 

while the record shows that both defendant and the tenant were aware of the driveway lip, 

defendant appears to have provided working outdoor lighting, the operation of which was under 

the control of the tenant, as is typical with respect to leased single-family residence homes. The 

lease agreement specifies that the tenant is, in any event, in charge of replacing light bulbs. The 

tenant admitted in her deposition that she had not turned on the available lighting. To the extent 

that the lip of the driveway was a dangerous condition on the land, it is difficult to see how it can 

be shown that defendant breached its duty concerning that hazard when exterior lighting provided 

by defendant was not used to illuminate it. Lugo, 464 Mich at 516. I consequently conclude that 

plaintiff has failed to demonstrate a genuine issue of material fact concerning any breach of 

defendant’s duty to her.4 Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 693; 822 

NW2d 254 (2012).

 

4 The trial court noted that it was undisputed that plaintiff was an invitee. Yet, it is also undisputed 

that plaintiff was a social guest of the tenant. Generally, social guests are licensees, not invitees. 
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For these reasons, I respectfully dissent and would affirm the trial court’s order granting 

summary disposition in favor of defendant.

/s/ Mark T. Boonstra

 

See Taylor v Laban, 241 Mich App 449, 453; 616 NW2d 229 (2000). There is indeed caselaw 

supporting a conclusion that social guests of tenants in institutional settings are invitees when they 

are injured in common areas over which a landlord retains control. See Allison v AEW Capital 

Mgmt, LLP, 481 Mich 419, 427; 751 NW2d 8 (2008). But it is far from clear to me that the same 

is necessarily true with regard to a single-family residence, or that a landlord retains sufficient 

control over the driveway of such a residence (as opposed, for example, to a common parking lot 

in an apartment complex) such that it can be deemed to be a common area; there was no indication 

that defendant in this case, for example, controlled who could use the driveway, the number and 

size of vehicles that could be parked there, the security of the area, or many other factors deemed 

relevant in Allison. Id. at 428. Although neither the trial court nor the parties in this case have 

addressed whether plaintiff properly should be considered an invitee or a licensee, I would 

encourage them to do so on remand.