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

revision until final publication in the Michigan Appeals Reports.

-1-

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

JANET A. VROMAN,

Plaintiff-Appellant,

UNPUBLISHED

March 7, 2024

v No. 357179

Oakland Circuit Court

THE DESSERT OASIS, LLC, LC No. 2020-179357-NO

Defendant-Appellee.

ON REMAND

Before: CAMERON, P.J., and O’BRIEN and SWARTZLE, JJ.

PER CURIAM.

This case returns to this Court on remand1for analysis under our Supreme Court’s recent 

decision in Kandil-Elsayed v F & E Oil, Inc, 512 Mich 95; ___ NW2d ___ (2023), and its

companion case, Pinsky v Kroger Co of Mich, which changed how courts analyze open and 

obvious conditions in premises-liability claims. Because the factual record in this case is 

insufficient to analyze plaintiff’s premises-liability claim under Kandil-Elsayed, we vacate the trial 

court’s order granting summary disposition and remand for further proceedings.

I. BACKGROUND FACTS AND PROCEDURAL HISTORY

The facts of this case are not in dispute, and were previously set forth by this Court in 

Vroman v Dessert Oasis, LLC, unpublished per curiam opinion of the Court of Appeals, issued 

June 9, 2022 (Docket No. 357179), pp 1-2 (Vroman I):

In December 2017, plaintiff visited defendant’s coffee shop during a 

nighttime holiday event in downtown Rochester, Michigan. As plaintiff attempted 

to walk from the sidewalk into defendant’s store, she tripped and fell on a three-

 

1 Vroman v The Dessert Oasis, LLC, ___ Mich ___; 997 NW2d 179 (2023) (Vroman II).
-2-

inch step that separated the sidewalk from a red-tiled piazza at the front of 

defendant’s shop. Plaintiff allegedly suffered various injuries.

Plaintiff filed suit, alleging that defendant was responsible for the entry’s 

dangerous condition and was liable for her injuries. Plaintiff asserted two separate 

claims against defendant: one for premises liability and one for general negligence. 

Under the premises liability claim, plaintiff asserted that the step was not 

observable because there was no paint or other warning to indicate the existence of 

the elevated surface upon entering the shop. According to plaintiff, this hidden 

danger caused her fall.

Following discovery, defendant moved for summary disposition under 

MCR 2.116(C)(10) (no genuine issue of material fact), arguing in relevant part that 

plaintiff’s premises liability claim should be dismissed because the allegedly 

hazardous condition was open and obvious and lacking any special aspects. 

Plaintiff opposed the motion, arguing that inadequate lighting precluded application 

of the doctrine and that the step was not an open and obvious danger because it was 

undetectable upon casual inspection.

After hearing oral argument, the trial court entered an order granting 

defendant’s motion for summary disposition and dismissing plaintiff’s complaint 

with prejudice. [Footnote omitted.]

In Vroman I, this Court affirmed the grant of summary disposition, reasoning there was no genuine 

question of fact that the condition at issue was open and obvious, and therefore defendant did not 

owe plaintiff a duty. Id. at 5.

Later, our Supreme Court, in Kandil-Elsayed, 512 Mich at 148-149, substantially altered 

the legal framework governing premises-liability claims. Because our decision in Vroman I relied 

on the former open and obvious framework, the Court vacated Vroman I and remanded the case to 

this Court for reconsideration in light of Kandil-Elsayed. Vroman v The Dessert Oasis, LLC, ___ 

Mich ___; 997 NW2d 179 (2023) (Vroman II).

II. STANDARD OF REVIEW

A trial court’s decision regarding a motion for summary disposition is reviewed de novo. 

Glasker-Davis v Auvenshine, 333 Mich App 222, 229; 964 NW2d 809 (2020).

A motion under MCR 2.116(C)(10) . . . tests the factual sufficiency of a 

claim. When considering such a motion, a trial court must consider all evidence 

submitted by the parties in the light most favorable to the party opposing the 

motion. A motion under MCR 2.116(C)(10) may only be granted when there is no 

genuine issue of material fact. A genuine issue of material fact exists when the 

record leaves open an issue upon which reasonable minds might differ. [El-Khalil 

v Oakwood Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665 (2019) (quotation 

marks, citations, and emphasis omitted).]
-3-

III. ANALYSIS

“In a premises liability action, a plaintiff must prove the elements of negligence: (1) the 

defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the 

proximate cause of the plaintiff’s injury, and (4) the plaintiff suffered damages.” Buhalis v Trinity 

Continuing Care Servs, 296 Mich App 685, 693; 822 NW2d 254 (2012) (quotation marks and 

citation omitted). The duty owed to a visitor depends on whether the visitor is a trespasser, 

licensee, or invitee. Kandil-Elsayed, 512 Mich at 111. Under our former jurisprudence, a land

possessor had no duty to protect invitees from open and obvious dangers. Lugo v Ameritech Corp, 

Inc, 464 Mich 512, 517; 629 NW2d 384 (2001), overruled by Kandil-Elsayed, 512 Mich 95 (2023). 

In other words, if a dangerous condition was deemed open and obvious, then the land possessor 

had no duty, and the case would be dismissed. Kandil-Elsayed overruled Lugo, holding that the 

open and obvious nature of a condition does not relate to the land possessor’s duty. KandilElsayed, 512 Mich at 133. Instead, Kandil-Elsayed concluded that whether a condition is open 

and obvious is relevant to whether the defendant breached their duty of care. Id. at 144. Assuming 

an otherwise actionable premises-liability claim has been established, the open and obvious nature 

of the condition informs whether the plaintiff’s damages should be reduced on the basis of 

comparative fault. Id. at 144, 148-149.

The trial court granted defendant’s motion for summary disposition, which we affirmed, 

solely because the step in this case was open and obvious, which meant defendant owed plaintiff 

no duty. Vroman I, unpub op at 5. But, the legal basis for the trial court’s ruling is no longer 

tenable, because, under Kandil-Elsayed, the open and obvious doctrine no longer precludes the 

existence of a duty. Having concluded plaintiff’s claim was barred under the former framework 

of the open and obvious doctrine, the trial court has not fully analyzed the premises liability 

elements. As such, the factual record is insufficient for this Court’s consideration and the case 

must be remanded to the trial court for further factual development. On remand, should the trial 

court conclude the premises liability elements are otherwise satisfied, then it may consider the 

open and obvious nature of the defect in relation to plaintiff’s comparative fault.

Vacated and remanded for further proceedings. We do not retain jurisdiction.

/s/ Thomas C. Cameron 

/s/ Colleen A. O’Brien 

/s/ Brock A. Swartzle