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### STATE OF MICHIGAN

COURT OF APPEALS

CHRISTOPHER HOLCOMB,

Plaintiff-Appellant, UNPUBLISHED March 1, 2016

v No. 325410 Macomb Circuit Court GWT, INC. d/b/a MOOSE TRAXX GRILL & BAR, LC No. 2013-002409-NI

Defendant-Appellee, and

PATRICK FRANCIS O’DONNELL and JAMES PATRICK O’DONNELL,

Defendants/Cross-Defendants.

Before: G LEICHER , P.J., and J ANSEN and S HAPIRO , JJ.

P ER C URIAM

. This case centers on a bicyclist travelling along a sidewalk w ho collided with a motor vehicle that was exiting a restaurant’s parking lot. The bicyc list asserted a premises liability count against the restaurant, claiming that two trees planted at the intersection of the sidewalk and driveway obscured his view o f vehicles leaving the parking lot. The circuit court determined that this obstruction of view was an open and obvious conditionon the land and summarily dismissed the action. We affirm.

I. BACKGROUND

At approximately 7:45 p.m. on April 10, 2012, plaintiff Christ opher Holcomb rode his bicycle on the sidewalk southbound past the Moose Traxx Grill & Bar on Gratiot in Roseville. As he approached the restaurant’s driveway from the sidewalk, an intoxicated James O’Donnell drove his vehicle from the restaurant parking lot toward the street. The two collided, Holcomb became trapped under the vehicle, and he ultimately required an amputation to the left leg below the knee.

Holcomb initially filed a dramshop action against Moose Traxx. During depositions, O’Donnell asserted that because of “two overgrown trees” plante d at the intersection of the sidewalk and the driveway, he “could not see the sidewalk.” Ho lcomb then amended his-2- complaint to include a premise s liability count, asserting that the trees dangerously obstructed the view between the sidewalk and dr iveway. During his subsequent deposition, Holcomb indicated that he had to swerve to the right side of the sidewalk to avoi d the trees and claimed he was unable to see O’Donnell’s vehicle until it was too late. Photo graphs of the area presented by Holcomb revealed that the trees’ branches did not intrude upon the sidewalk, and Moose Traxx’s owner, Gary Teichman, testified that in the 43 years he had bee n using the driveway, his view of the sidewalk had never been obstructed.

Moose Traxx sought summary disposition of Holcomb’s claim, arg uing that the obstruction of view was an open and obvious condition. Holcomb retorted that such a visual obstruction was by its nature not open and obvious. He further argued that his premises liability claim entailed an additional count for ordinary negligence. Th e negligence claim arose from Teichman’s failure, as Moose Traxx’s agent, to maintain the tre es to ensure a clear sightline as required by city ordinance and state statute. Moose Traxx in t urn contended that it owed no duty to Holcomb to maintain the land in a safe condition, only to wa rn of known dangers of which Holcomb would not be reasonably aware, because Holcomb was mere ly a licensee on the property.

Ultimately, the circuit court granted Moose Traxx’s motion. T he court concluded that Holcomb was a licensee, and the reduced duty nullified any pote ntial ordinary negligence claim. In any event, the claim sounded in premises liability alone, an d the visual obstruction was an open and obvious condition as evidenced by the photographs pres ented by Holcomb himself. The court further discerned no vi olation of the duty to warn be cause the visual obstruction would have been clear to all.

II. ANALYSIS

We review a trial court’s decisi on on a motion for summary dis position de

novo. Wayne Co v Wayne Co Retirement Comm , 267 Mich App 230, 243; 704 NW2d 117 (2005). . . .

A motion under MCR 2.116(C)(10) “tests the factual support of a plaintiff’s claim.” Walsh v Taylor , 263 Mich App 618, 621; 689 NW2d 506 (2004). “Summary disposition is appropriate under MCR 2.116(C) (10) if there is no genuine issue regarding any material fact and the moving par ty is entitled to judgment as a matter of law.” West v Gen Motors Corp , 469 Mich 177, 183; 665 NW2d 468 (2003). “In reviewing a motion under MCR 2.116(C)(10) , this Court considers the pleadings, admissi ons, affidavits, and other rele vant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial.” Walsh , 263 Mich App at 621. “A genuine issue of material fact exist s when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West , 469 Mich at 183. [ Zaher v Miotke , 300 Mich App 132, 139-140; 832 NW2d 266 (2013).]-3- A. ORDINARY NEGLIGENCE

Holcomb continues to assert that his claim sounds in ordinary negligence, not just premises liability. However, “[ w]hen a plaintiff’s injury aris es from an allegedly dangerous condition on the land, the action sounds in premises liability rather than ordinary negligence, even when the plaintiff alleges that the premises possessor cre ated the condition giving rise to the plaintiff’s injury.” Compau v Pioneer Resource Co, LLC , ___ Mich ___; 871 NW2d 210 (2015).

In Buhalis v Trinity Continuing Care Servs , 296 Mich App 685, 692; 822 NW2d 254 (2012), this Court described the difference between an ordinary negligence and premises liability action:

Michigan law distinguishes between claims arising from ordinarynegligence and claims premised on a condition of the land. See James v Alberts , 464 Mich 12, 18-19; 626 NW2d 158 (2001). In the latter case, liability aris es solely from the defendant’s duty as an owner, possessor, or occupier of land. Laier v Kitchen
, 266 Mich App 482, 493; 702 NW2d 199 (2005). If the plaintiff’s injury arose from an allegedly dangerous c ondition on the land, the action s ounds in premises liability rather than ordinary negligence; this is true even wh en the plaintiff alleges that the premises possessor created the condition givin g rise to the plaintiff’s injury. James , 464 Mich at 18-19.

The distinction is important because the open and obvious doctr ine does not apply to defeat ordinary negligence claims. Laier , 266 Mich App at 490.

A claim can have elements sounding in both premises liability and ordinary negligence. In Laier , for example, the defendant landowner invited the plaintiff’s deceased onto his land to assist in the repair of a tractor. The defendant negligently r emoved a vise grip from a hydraulic hose, causing the tractor’s front -end bucket loader to crash do wn and pin the decedent to the machine. Id. at 485-486. This Court held: “Pla intiff’s complaint stated th at defendant ‘owed a duty to [the deceased] to use due care and caution in the opera tion and control of the tractor and bucket.’ Defendant’s conduct was thus an alleged basis of liab ility, independent of premises liability.” Id. at 493. However, “[i]n addition to the duty owed concerning c onduct, plaintiff alleged a duty based on [the deceased’s] status as an invitee, i.e., a duty to protect [the deceased] from unreasonable risks of injury known to defendant and to war n [the deceased] about those risks. This allegation was the ba sis of plaintiff’s claim of pr emises liability[.]” Id. at 497.

In Buhalis , 296 Mich App at 689-690, the plaintiff slipped and fell on ic e on a patio near the front entrance of the defendant’s building. Other paths ha d been cleared from the parking lot to the entrance, but not the loc ation where the plaintiff fell. Id. at 690. In fact, the awnings near the front entrance redirected r ain water and melting snow onto the patio area, which then accumulated significantly more ice than other paths. Id. This Court held that the trial court erroneously characterized the p laintiff’s claim as sounding in ordinary negligence, rather than in premises liability alone. Id. at 691. In doing so, this Court noted, “If the plaintiff’s in jury arose from an allegedly dangerous c ondition on the land, the action s ounds in premises liability rather than ordinary negligence; this is true even when the plaintiff alleges that the premises possessor-4- created the condition giving rise to the plaintiff’s injury.” Id. at 692. The plaintiff fell “when she encountered a dangerous condition on Trinity’s premises.” Even though the plaintiff accused defendant’s employees of creating the hazard, “this allegation [did] not transform the claim into one for ordinary negligence.” Id.

The difference between Laier and Buhalis is that the Laier landowner took an affirmative negligent action that directly and swiftly caused an injury. M oose Traxx took no such affirmative action in this case. Here, as in Buhalis , Holcomb’s claim is based on a condition of the land. He asserted that the existing landscaping obscured t he line of sight between southbound travelling pedestrians and vehicles exiting via the driveway. This is similar to the claim in Buhalis that the property design allowed ice to accumulate on the pati o. Accordingly, the claim sounded in premises liability. The claim was not con verted into one for ordinary negligence simply because Holcomb alleged that Moose Traxx created the condition by failing to adequately maintain the trees.

B. OPEN AND OBVIOUS

Moreover, the visual obstruction was an open and obvious condi tion, nullifying any potential liability on Moose Traxx’s part.

The law of premises liability in Michigan has its foundation i n two general precepts. First, landowners must act in a reasonable manner to guard against harms that threaten the safety and security of those who enter their land. Second, and as a corollary, landowners are not insurers; that is, they are not charged with guaranteeing the safety of every p erson who comes onto their la nd. These principles have been used to establish well-recognized rules go verning the rights and responsibilities of both land owners and those who enter the ir land. Underlying all these principles and rules is the requirement th at both the possessors of land and those who come onto it exercise common s ense and prudent judgment when confronting hazards on the land. These ru les balance a possessor’s ability to exercise control over the premises with the invitees’ obligation to assume personal resp onsibility to protect themsel ves from apparent dangers. [ Hoffner v Lanctoe , 492 Mich 450, 459-460; 821 NW2d 88 (2012) (citations omitted).]

“To establish a prima facie case of negligence, a plaintiff mu st prove that ‘(1) the defendant owed the plaintiff a legal duty, (2) the defendant br eached the legal duty, (3) the plaintiff suffered damages, and (4) the defendant’s breach was a proximate cause of the plaintiff’s damages.’ ” Hill v Sears, Roebuck & Co , 492 Mich 651, 660; 822 NW2d 190 (2012), quoting Loweke v Ann Arbor Ceiling & Partition Co, LLC , 489 Mich 157, 162; 809 NW2d 553 (2011). “The starting point for any discussion of the rules go verning premises liability law is establishing what duty a premises possessor owes to those who c ome onto his land.” Hoffner
, 492 Mich at 460. There are three common-law categories in whic h visitors to one’s land fall: invitees, licensees, and trespass ers. One’s category decides the duty owed. Stitt v Holland Abundant Life Fellowship , 462 Mich 591, 596; 614 NW2d 88 (2000).

The parties agree that Holcomb was a licensee.-5- A “licensee” is a person who is privileged to enter the land o f another by virtue of the possessor’s consen t. A landowner owes a licensee a duty only to warn the licensee of any hidden dangers the owner knows or has reason to know of, if the licensee does not know or have reason to know of the dangers involved. The landowner owes no duty of inspection or affirmative care to make the premises safe for the licensee’s visit. Typically, social gues ts are licensees who assume the ordinary risks a ssociated with their visit. [ Id. ]

A person walking down a public sidewalk is considered to be “on ” the adjacent landowner’s property. If that person is on the sidewalk for a non-business purpose, they are a licensee. Campbell v Kovich , 273 Mich App 227, 235; 731 NW2d 112 (2006).

Holcomb contends that as he was a licensee, the open and obvio us doctrine does not apply. This is not true.

A possessor of land has no duty to give warning of dangers thatare open and obvious, inasmuch as such dangers come with their own warning. . . . [W]ith regard to licensees, no liability arises if the licensee knows or has reason to know of the danger, or if the possessor should expect that the licen see will discover the danger. Hence, a possessor of land has no obligation to take any steps to safeguard licensees from conditions that are open and obvious. [ Pippin v Atallah
, 245 Mich App 136, 143; 626 NW2d 911 (2001) (citations omitted). ]

Whether a condition is open and obvious is judged by an objecti ve standard by asking, “Would an average person of ordinary intelligence discover the danger and the risk it presented on casual inspection?” Price v Kroger Co , 284 Mich App 496, 501; 773 NW2d 739 (2009). See also Novotney v Burger King Corp , 198 Mich App 470, 474; 499 NW2d 379 (1993) (“[A]n obvious danger is no danger to a reasonab ly careful person . . . . Its nature, as well as any danger presented, is apparent upon casua l inspection by a n average use r with ordinary intelligence.”).

As determined by the circuit court, the photographic evidence presented by both parties revealed that the visual obstruction was an open and obvious co ndition. Regardless of whether the trees were overgrown or improperly placed, the demarcation between the sidewalk and the driveway is clear and obvious. T hat vehicles may approach the driveway from the parking lot and pedestrians from the sidewal k is equally clear and obvious to an average user of ordinary intelligence. As is the fact that the trees could obstruct the view of intersecting traffic. This obvious obstruction would place areasonable person of average intelligence on notice to stop and look before proceeding.

C. SPECIAL DUTY UNDER STATUTE OR ORDINANCE

Holcomb complains that a state statute and various city ordina nces require land owners to maintain trees and hedges so the y do not obstruct the view at t he intersection of a driveway and a sidewalk, and that these regula tions impose a special duty on t he landowner in avoidance of the open and obvious doctrine. Indeed, this Court has stated, “the doctrine does not exonerate a defendant from liability where the claim is one of a statutory duty to maintain and repair the-6- premises.” Laier , 266 Mich App at 490, citing Walker v City of Flint , 213 Mich App 18, 22; 539 NW2d 535 (1995).

First, the statute cited by H olcomb, MCL 239.5, is inapplicabl e in this case. The statute requires land owners to maintain “all hedges or hedge rows” alo ng public roadways at “a height not exceeding 4 1/2 feet.” Id. Although trees fit within the def inition of “hedges or hedge rows,” OAG, 1982, No. 6,025, two trees planted side-by-side do not a hedge or hedge row make.

Even if Moose Traxx violated city ordinances, such conduct wou ld not negate the open and obvious doctrine. Violation of a statutory duty is negligen ce per se. Douglas v Edgewater Park Co , 369 Mich 320, 328; 119 NW2d 567 (1963). Yet, “[v]iolation of an ordinance is not negligence per se, but onlyevidence of negligence.” Stevens v Drekich , 178 Mich App 273, 278; 443 NW2d 401 (1989), citing Mills v A B Dick Co , 26 Mich App 164, 168; 182 NW2d 79 (1970). “If no duty is owed by the de fendant to the plaintiff, an ordinance violation committed by the defendant is not actionable as negligence.” Stevens , 178 Mich App at 278, citing Johnson v Davis , 156 Mich App 550, 555-556; 402 NW2d 486 (1986). Stated more clearly, an ordinance violation standing alone “will not serve as the basis for impos ing a legal duty cognizable in negligence theory.” Ward v Frank’s Nursery & Crafts, Inc , 186 Mich App 120, 135; 463 NW2d 442 (1990). Accordingly, even if M oose Traxx violated the ordi nances, and even if the ordinances were enacted to preve nt the type of accident that oc curred in this case, such violations without more do not establish that Moose Traxx owed a legal dut y to Holcomb. The ordinance violation therefore do es not sound in negligence, premises liab ility or otherwise, and does not negate the application of t he open and obvious doctrine.

D. SPECIAL ASPECTS

Holcomb also contends that special aspects rendered the visual obstruction so unreasonably dangerous that the open and obvious doctrine must give way. To find “special aspects,” the danger must be unr easonably dangerous or effectiv ely unavoidable. Hoffner , 492 Mich at 461-463. A condition is “unreasonably dangerous” if it “present[s] an extremely high risk of severe harm . . . where there is no sensible reason for such an inordinate risk of severe harm to be presented.” Lugo v Ameritech Corp, Inc , 464 Mich 512, 519 n 2; 629 NW2d 384 (2001). A condition is not automa tically characterized as unre asonably dangerous “merely because a particular open and obvious condition has some potent ial for severe harm” or a situation in which severe harm could occur can be imagined. Id. Rather, only “unusual” conditions where the “risk of harm . . . is so unreasonably hig h” that its presence is “inexcusable” will rise to this level. Hoffner , 492 Mich at 462; Lugo , 464 Mich at 518-519 n 2.

Holcomb focuses on the severityof a pedestrian ’s potential in jury in a vehicle collision to argue that the obstructed view i s unreasonably da ngerous. But an obstruction caused by trees standing next to a business driveway is not unusual or uncommon . Nor does such an obstruction rise to the level of danger pos ed by “an unguarded thirty foot deep pit in the middle of a parking lot,” Lugo , 464 Mich at 518, or an unrailed second-story balcony at the o nly entrance to a residential apartment. Woodbury v Buckner (On Remand) , 248 Mich App 684, 694; 650 NW2d 343 (2001). It also does not pres ent “ ‘a uniquely high likel ihood of harm or severity of harm,’ ” such as that caused by an extremely heavy bale of hay left susp ended, and supported only by a point of frozen adherence, over an area in which people were wo rking. Jimkoski v Shupe , 282-7- Mich App 1, 6; 763 NW2d 1 (2008). This case, on the contrary, involves a run-of-the-mill situation. That an obstruction made it more difficult to see in tersecting traffic did not render the situation unreasonably dangerous. Rather, just as at any inter section, it required both parties to slow down or stop and look for traffic.

The condition was also not effectively unavoidable. In Hoffner , 492 Mich at 468-469, the Supreme Court described the stringent factors placing a dan ger in this category:

Unavoidability is characterized by an inability to be avoided , an inescapable result, or the inevitability of a given outcome. Our di scussion of unavoidability in Lugo was tempered by the use of the word “effectively,” thus provid ing that a hazard must be unavoidable or inescapable in effect or for all practical purposes

. Accordingly, the standard for “effective unavoidability” is tha t a person, for all practical purposes, must be required or compelled to confront a dangerous hazard. As a parallel conclusion, situ ations in which a person has a choice whether to confront a hazard cannot truly be unavoidable, or even effectiv ely so. [Citation omitted, emphasis in original.]

The plaintiff in Hoffner , 492 Mich at 469, was injured when she slipped on ice outside the only entrance to her gym. The plaintiff noticed the ice an d decided to try to enter anyway. She was not trapped inside with no way to exit, nor was she com pelled to enter the recreational facility. Therefore, the Court found that the danger could hav e been avoided by choosing not to enter the gym. Id. at 473.

Similarly, in Joyce v Rubin , 249 Mich App 231, 233; 642 NW2d 360 (2002), the plaintiff was injured when she fell on ice outside a home where she previ ously worked as a live-in caregiver. The plaintiff contende d that the homeowner forced h er to move her belongings on a particular day despite the winte ry weather, forced her to use the front door, and refused all efforts to make the walk safer. Id. This Court noted that the plain tiff could have stood her grou nd and refused to move that day or insisted on using a clearer path. Moreover, the plaintiff avoided the ice after her fall by skirting through the grass at the icy poi nt, establishing that she could have done so all along. Id. at 242.

This case also presents a situation where the plaintiff could have avoided the danger. Holcomb could have turned around when he encountered a drivewaywith an open and obvious obstruction of view. Or Holcomb could have simply stopped and looked around the trees before proceeding thereby effectively avoiding the danger.

E. AMENDMENT

Finally, Holcomb contends that the circuit court should have g ranted his motion to amend his complaint to add a claim that the visual obstruction amount ed to a public nuisance. We review such claims for a n abuse of discretion. Tierney v Univ of Mich Regents , 257 Mich App 681, 687; 669 NW2d 575 (2003).

MCR 2.116(I)(5) provides that when a court grants summary disp osition under MCR 2.116(C)(10), “the court shall giv e the parties an opportunity to amend their pleadings as provided by MCR 2.118, unless the evidence then before the court shows that amendment would-8- not be justified.” MCR 2.118(A)(1) grants a party the right to file one amendment within 14 days of receiving the defendant’s answer. All other amendments require the court’s permission or a stipulation of the parties . MCR 2.118(A)(2). The court r ules dictate that “[l]eave shall be freely given when justice so requires.” Id. “Leave to amend should be denied only for particularized reasons, such as undue delay, bad faith, or dila tory motive on the movant’s part, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, or where amendment would be futile.” Jenks v Brown , 219 Mich App 415, 420; 557 NW2d 114 (1996).

Holcomb had already amended his complaint twice. Even after t wo amendments, Holcomb asserted (without seeking to amend) that his premises l iability count included a count for ordinary negligence, and clai med that the facts underlying his premises liability claim also supported a public nuisance count. Holcomb’s efforts to rechar acterize his premises liability count were his third attempt to amend his complaint. Holcomb w as throwing darts until he could get a claim to stick to the detriment of Moose Traxx, which had to repeatedly research and rework its theory.

Moreover, another amendment t o add a public nuisance claim wou ld have been futile.

“A public nuisance invo lves the unreasonable interference with a right common to all members of the general public.” Adkins v Thomas Solvent Co , 440 Mich 293, 304 n 8; 487 NW2d 715 (1992). “No better definition of a publi c nuisance has been suggested than that of an act or omission which obstructs or causes inconvenience or damage to the pub lic in the exercise of rights common to all Her Majesty’s subjects.” Garfield Twp v Young , 348 Mich 337, 341-342; 82 NW2d 876 (1957) (quotation marks and citation omitted). [ Sholberg v Truman , 496 Mich 1, 6-7; 852 NW2d 89 (2014).]

“ ‘It is not necessary, however, that the entire community be affected, so long as the nuisance will interfere with those who come in contact with it in the ex ercise of a public right.’ ” Garfield Twp , 348 Mich at 342, quoting Prosser, Torts, § 71, pp 401, 402.

As described by this Court, the “unreasonable interference” un derlying a public nuisance claim includes:

(1) conduct that significantly interferes with public health, s afety, peace, comfort, or convenience; (2) conduct that is prescribed by law; (3) cond uct of a continuing nature that produces a permanent or long-lasting effect, and, a s the actor knows or has reason to know, has a signifi cant effect on public rights. [ Wagner v Regency Inn Corp , 186 Mich App 158, 163; 463 NW2d 450 (1990).]

To be considered a public nuisance,

the activity must be harmful to the public health, or create an interference in the use of a way of travel, or affect public morals, or prevent the public from the peaceful use of their land and the public streets. The questionin each case is one of fact, and in each case we must consider the facts peculiar t o that particular case. [ Garfield Twp , 348 Mich at 342 (citations omitted).]-9- Consistent with these standards, the Supreme Court has found a public nuisance in the face of an actual obstruction on a public highway. See Long v New York Central R Co , 248 Mich 437; 227 NW2d 739 (1929) (wher e the flagman’s shanty was e rected within the curbline of the road, impeding traffic). But we are not faced with an actu al obstruction to the roadway. Rather, we are faced with an all eged obstruction of visibility at the intersection of a sidewalk and a business driveway. “[A]n unreasonable interference with a pu blic right includes significant interference with the public safety.” Askwith v Sault Ste Marie , 191 Mich App 1, 6; 477 NW2d 448 (1991). As described in relat ion to a public nuisance clai m against the government in avoidance of governmental immunity:

This is not to say that any interference with public safety is sufficient to establish a public nuisance. If this were the case, then every case involving negligence by the government would necessarily compel the concl usion that the public nuisance exception to immunity would be applicable. Tha t is, any negligence by the government that results in injury to a plaint iff necessarily involves interference with the public safety. To conclude that any such interference with the public saf ety is tantamount to being a pu blic nuisance would result in the exception consumi ng the rule. Clearly, the publi c nuisance exception is not so broad. The limitations on the exception are clearly expressed in the Restatement: the interfer ence must be unreasonable. [ Id. at 6-7.]

The same reasoning is true in relation to the open and obvious doctrine. If every land condition that interferes in any small way with public safety could be co nsidered a public nuisance, the open and obvious doctrine would be swallowed whole.

This small and obvious visual obstruction at the intersection of a public sidewalk with a private business’s parking lot does not constitute a public nui sance. Accordingly, the circuit court did not abuse its discreti on in denying Holcomb’s third r equest to amend the complaint.

We affirm.

/s/ Elizabeth L. Gleicher /s/ Kathleen Jansen