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### STATE OF MICHIGAN

COURT OF APPEALS

DONALD BURNHAM and JANIE BURNHAM,

Plaintiff-Appellants, UNPUBLISHED March 1, 2016

v No. 324867
Monroe Circuit Court

HOBBY LOBBY STO RES, INC., KERR MONROE, LLC, and KE RR-REAL ESTATE, LLC, LC No. 13-035273-NO

Defendant-Appellees.

Before: S ERVITTO , P.J., and S AAD and O’B RIEN , JJ.

P ER C URIAM

.

Plaintiffs, Donald and Janie Burnham, appeal as of right the t rial court’s October 10, 2014 order granting summary disposition to defendants, Hobby Lo bby Stores, Inc., Kerr Monroe, LLC, and Kerr-Real Est ate, LLC, pursuant to MCR 2.116(C )(10). We affirm.

On July 27, 2012, Janie Burnham (B urnham) slipped and fell in a puddle of water in what the parties describe as the “pit” area of a Hobby Lobby store i n Monroe County. After sustaining various injuries as a result of her fall, Burnham filed this ne gligence lawsuit against Hobby Lobby Stores, Inc., Kerr Monroe, LLC, the landlord of the premi ses where Burnham slipped and fell, and Kerr-Real Estate, LLC, who is a member of Kerr Monroe , LLC. Defendants responded with motions for summary disposition, each arguing that the con dition that caused Burnham’s fall, i.e., the puddle of water, constituted an open and obviou s danger. Thus, they concluded, no duty of care was owed to Burnham, and summary disposition was a ppropriate. The trial court agreed and granted summary disposition in defendants’ favor. T his appeal followed.

On appeal, plaintiffs first ar gue that the trial court erred i n granting summary disposition in defendants’ favor. Specifically, they argue that the trial court erred in concluding that the puddle of water was open a nd obvious. We disagree.

We review a trial court’s decision on a motion for summary dis position de novo. Veenstra v Washtenaw Country Club , 466 Mich 155, 159; 645 NW2d 643 (2002). In reviewing a motion for summary disposit ion pursuant to MCR 2.116(C)(10), courts are required to consider the pleadings, affidavits, and other evidence in a light most f avorable to the nonmoving party.

Decker v Flood , 248 Mich App 75, 81; 638 NW2d 163 (2001). Summary dispositio n pursuant to-2- MCR 2.116(C)(10) is appropriate “if the affidavits or other doc umentary evidence show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter
of law.” Id

.

In premises liability actions, a plaintiff must prove (1) that the defendant owed the plaintiff a duty, (2) that the defendant breached that duty, (3 ) that the breach was the proximate cause of the plaintiff’s injury, and (4) that the plaintiff suf fered damages, i.e., the elements of negligence. Benton v Dart Props, Inc , 270 Mich App 437, 440; 715 NW2d 335 (2006). While a land possessor owes a duty of reasonable care to protect an inv itee from unreasonable risks of harm posed by dangerous conditions on the land, that duty does not require a land possessor to protect an invitee from dangers that are open and obvious. Id . at 440-441. Open and obvious dangers cut off a land possessor’s duty because “there is an ov erriding public policy that people should take reasonable care for their own safety and this precl udes the imposition of a duty on a landowner to take extraordinary measures to warn or keep people safe unless the risk is
unreasonable.” Buhalis v Trinity C ontinuing Care Servs , 296 Mich App 685, 693-694; 822 NW2d 254 (2012) (citations and internal quotation marks omitted ). A dangerous condition is open and obvious when “an average user with ordinary intelligen ce” would be “able to discover” it “upon casual inspection.” Novotney v Burger King Corp (On Remand) , 198 Mich App 470, 475; 499 NW2d 379 (1993).

In this case, viewing the evidence in a light most favorable t o plaintiffs, Decker , 248 Mich App at 81, we conclude that the trial court correctly dete rmined that the puddle of water constituted an open and obvious condition. All witnesses agree d that it was raining on the day that Burnham slipped and fell. Burnham admitted that “[i]t was raining.” Burnham’s daughter described the weather as being “[v]ery bad, very rainy, rainy a ll day.” All witnesses who recalled observing the puddle of w ater also agreed that the pud dle was, in fact, visible upon inspection. While Burnham herself did not recall seeing the pu ddle, Burnham’s daughter described the puddle as “approximately 4’ by 4’ ” and stated th at nothing was hiding the puddle from view. A Hobby Lobby employee described the puddle of wate r as “two feet by one feet” and agreed that it was “easy to see.” A second Hobby Lobby emp loyee testified that it took nine or ten paper towels to clean up the puddle of water that remain ed after both Burnham’s and Burnham’s daughter’s clothes beca me “soaked” or “saturated.” B urnham testified that she was looking down while she was walking in a U-turn-type pattern and that nothing obscu red her view of the floor apart from a “display cabinet” located near the pu ddle. Furthermore, Burnham admitted that “[a]ll of the back of [her] was wet” after the fa ll, providing even more evidence regarding the quantity of water visible on the floor. In sum, the testimony presented by both parties demonstrated that “an average user with ordinary intell igence” would have been “able to discover” the puddle of water “upon casual inspection.” Novotney , 198 Mich App at 475. The fact that Burnham apparently d id not, alone, is insufficient to alter this conclusion.

On appeal, plaintiffs contend that the puddle of water was not open and obvious because “Ms. Burnham’s view of the water was blocked by the display cab inet.” This argument is meritless. First, it ignores the fact that the proper inquiry asks, objectively, whether “an average user with ordinary intelligence” would be “able to discover” th e puddle of water “upon casual inspection,” Novotney , 198 Mich App at 475, not whether Burnham noticed it under the specific circumstances of this case. Furthermore, there is nothing in t he record to support the proposition that the display cabinet somehow concealed the puddle of water. Indeed, all of the witnesses-3- who acknowledged seeing the puddle agreed that it was, in fact, visible. While plaintiffs now claim that the puddle of water “could only be observed when the average person got around the display cabinet,” plaintiffs fa il to articulate how Burnham “go t around the display cabinet” enough to slip and fall in a puddle she allegedly could not see despite watching where she was walking. Plaintiffs also contend that the disparity in witness es’ descriptions of the size of the puddle support her position. Thi s argument is likewise meritle ss. While there was some disparity in witnesses’ descrip tions of the puddle’s size, i.e. , four-by-four versus two-by-one, there was no disparity in witn esses’ descriptions of the puddle ’s visibility—they all testified that
it was visible. Thus, we reject these arguments.

Plaintiff also relies on two cases to support her position tha t summary disposition was inappropriate: Andrews v K Mart Corp , 181 Mich App 666; 450 NW2d 27 (1989), and Watts v Mich Multi-King, Inc , 291 Mich App 98; 804 NW2d 569 (2010). Because both of these cases are inapplicable to the matter at hand, this argument is meritl ess as well. Andrews is legally inapplicable to this case because it does not involve the open-and-obviou s-danger doctrine. 181 Mich App at 668. Watts is factually inapplicable to this case in a variety of ways. T he evidence presented in that case unequivoc ally indicated that it was not precipitating on the day of the fall.

Watts , 291 Mich App at 99. That is not true here—Burnham and other witnesses testified that it had been raining hard for several hours before Burnham entered the store. Additionally, the evidence presented in that cas e included “no testimony or other evidence to demonstrate that the floor was visibly, let alone obviously, wet[.]” Id . at 103. That is not true here—each witness who acknowledged seeing the puddle admitted that it was clearly visible. Thus, as these are the only cases that plaintiffs rely on to support their position, we rej ect this argument as well.

Accordingly, because the puddle of water was open and obvious, we conclude that the trial court properly granted summary disposition in defendants’ favor pursuant to MCR 2.116(C)(10).

On appeal, plaintiffs also take issue with the trial court’s r efusal to consider the affidavit of Theresa Sonoras. Plaintiffs provided Sonoras’s affidavit on October 10, 2014, the morning of the hearing on defendants’ motions for summary disposition, cla iming that it was admissible pursuant to MCR 2.116(H). Specifi cally, plaintiffs claimed tha t Sonoras’s affidavit should be admitted because plaintiffs’ counsel was unsuccessful in contac ting Sonoras until October 8, 2014. The trial court disagreed, concluding that it would not consider Sonoras’s affidavit because discovery was already closed and because plaintiffs did not satisfy MCR 2.116(H). On appeal, plaintiffs again claim that Sonoras’s affidavit was adm issible pursuant to MCR 2.116(H). We, like the trial court, disagree.

We review a trial court’s inter pretation and application of a court rule de novo. Henry v
Dow Chemical Co , 484 Mich 483, 495; 772 NW2d 301 (2009). MCR 2.116(H) provide s as follows:

(1) A party may show by affidavit that the facts necessary to support the party’s position cannot be presented because the facts are know n only to persons whose affidavits the party cannot procure. The affidavit must-4- (a) name these persons and state why their testimony cannot be procured,
and

(b) state the nature of the probable testimony of these person s and the reason for the party’s belief tha t these persons would testify to those facts.

(2) When this kind of affidavit is filed, the court may enter an appropriate order, including an order

(a) denying the motion, or

(b) allowing additional time to permit the affidavit to be sup ported by further affidavits, or by deposit ions, answers to interrogatori es, or other discovery.

Court rules, like statutes, are interpreted considering their p lain language in an attempt to ascertain its meaning. Henry , 484 Mich at 495.

In this case, we agree with the trial court that plaintiffs fa iled, and continue failing, to satisfy the requirements of MCR 2.116(H). The record does not reflect why Sonoras’s testimony regarding a slip and fall that she witnessed more than two years earlier could not be procured until only hours before the hearing. While plaintiffs contend that Sonoras “was not responding,” they fail to articulate why she did not respond or, at the least, what attempts were made t o obtain a response aside from indicating that there were “several” in t he greater-than-two-year period between Burnham’s fall and that hearing. Their argument is als o belied by the following admission: “Discovery from Appellee dated September 19, 2014, three weeks before the Motion hearing, prompted Ms. Burnha m to visit Ms. Sonoras. At that time , Ms. Sonoras agreed to speak with Appellant’s counsel and sign an Affidavit[.]” (Emphasis a dded.) Additionally, the contents of Sonoras’s affidavit (as desc ribed by plaintiffs) was duplica tive in nature to that already present in the record. Furthermore, we a lso reject plaintiffs’ argumen t that “if the trial court wanted more details, it could have asked Appellant’s Counsel,” because there is nothing in MCR 2.116(H) that places the burden on t he trial court to assist a party in satisfying MCR 2.116(H).

In sum, because the puddle of water was open and obvious, we c onclude that the trial court correctly granted defendants’ motions for summary disposi tion. We therefore affirm the trial court’s October 10, 2014 or der granting summary dispositi on to defendants pursuant to MCR 2.116(C)(10).

Affirmed. Defendants, being the prevailing parties, may tax c osts pursuant to MCR

7.219.

/s/ Deborah A. Servitto /s/ Henry William Saad
/s/ Colleen A. O’Brien