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### STATE OF MICHIGAN

COURT OF APPEALS

JIM MCAULLIFE,

Plaintiff-Appellee, UNPUBLISHED August 11, 2016

v No. 323407
Genesee Circuit Court LAVILLA RESTAURANT, INC., doing business as LA VILLA RESTAURANT & PIZZERIA, LC No. 13-099725-NO

Defendant-Appellant.

Before: R ONAYNE K RAUSE , P.J., and S AWYER and S TEPHENS , JJ.

R ONAYNE K RAUSE

, P.J. (dissenting)

I respectfully dissent because I believe the majority’s analys is does not account for the realities of the way in which people interact. Furthermore, I am at a loss to explain the majority’s implication that I have invented facts. However, I agree with the majority’s analysis regarding plaintiff’s nuisance claims.

As an initial matter, openness and obviousness applies solely to premises liability claims; whether or not the physical condi tions of the driveway were ope n and obvious is irrelevant to plaintiff’s negligence claim. See Wheeler v Central Michigan Inns

, Inc , 292 Mich App 300, 304; 807 NW2d 909 (2011). As the majority states, a negligence clai m is founded on “the overt acts of a premises owner on his or her premises” rather than an “inj ury by a condition of the land.” Kachudas v Invaders Self Auto Wash Inc , 486 Mich 913, 914; 781 NW2d 806 (2010). The majority concludes, appropriatel y, that merely ordering deliver ies to be made via a back door is

not by itself a violation of any particular duty of care. The majorit y’s further conclusion that such an order cannot violate a duty of care when viewed in cont ext because that context involves a condition of the land which I will discuss in this opinion, h owever, makes no sense to me. Pushing someone over might not necessarily violate any particul ar duty of care, either, but pushing them into a pit surely w ould. Ignoring the facts and c ircumstances of an act amounts to nothing but a pronouncement of a legal rule by judicial fiat, a nd the condition of the land surrounding an act can readily and radically alter the characte r of that act.

As no less renowned a jurist than Justice V OELKER warned us that “a rule, when divorced from the facts to which it might properly apply, can be made to fit all occasions.” Steger v
Blanchard , 353 Mich 140, 144; 90 NW2d 891 ( 1958). Further,-2- Rules of law are necessary; properly applied they can succinctl y gather in the loose ends of a case and help rationalize the decision. Our co urts could scarcely operate without them. But when a rule of law or its applicatio n becomes so divorced from the context of reality, from the living human sit uations to which it is sought to be applied, it becomes meaningless incantation and downright harmful. It isn’t always what the rule says that is so bad; it is how it is applied. [ Id .]

In Steger , the legal doctrine under discussion was contributory negligen ce. However, the principle articulated is simpl y how the law is supposed to oper ate in reality.

Directing a delivery person to use a back entrance is, I expec t, quite ordinary in reality. However, if that entrance cannot be accessed safely, the charac ter of the direction may be very different, especially because the delivery person might be tres passing to use any other entrance. It is, of course, the very height of ivory-tower disdain for re al people in the real world to suggest that someone who depends on working for a living to survive sho uld, in the alte rnative, simply not do their job. Furthermore, it is at least arguable that if a business directs a delivery person to use a specific entryway, that direction constitutes a strongly implied assurance that doing so will be safe, and I do not believe it is unreasonable to expect the business to be aware of the situation. It has long been the case, as stated by Justice C OOLEY , that

Where one assumes to have knowledge upon a subject of which ano ther may well be ignorant, and knowingly makes false statements regarding it upon which the other relies, to his injury, w e do not think it lies with him t o say that the party who took his word and relied upon it as that of an honest and truth ful man, was guilty of negligence in so doing, as to be precluded from recovering c ompensation for the injury which was inflicted upon him under cover of the fals ehood. If a party’s own wrongful act has brought another into peril, he is not at l iberty to impute the consequences of his acts to a want of vigilance in the injured party, when his own conduct and untruthful assertions have deprived the other of th at quality and produced a false sense of security. [ Eaton v Winnie , 20 Mich 156, 165-166 (1870).]

I therefore disagree with the majority’s abrupt dismissal of pl aintiff’s negligence claims on the basis of a disconnected per-se rule that directing a delivery p erson to use a back entrance is not negligence, no matter the circumstances. 1

As the majority states, we nevertheless have in Michigan anoth er such disconnected perse rule that snow-covered surf aces and the attendant possibilit y that they may be slippery is an open and obvious hazard. Ververis v Hartfield Lanes , 271 Mich App 61, 67; 718 NW2d 382 (2006). Consequently, plaintiff’ s premises liability action ma y not be based solely on the

1 The majority distinguishes Eaton on its age, which I believe is a novel basis for per se disregarding precedent, and the majority’s disinclination to pl ace defendant’s directive in any kind of context, a philosophy w ith which I disagree.-3- presence of snow and ice on the ground. However, it is not, an d, consistent with the above discussion about the importance of context, our Supreme Court h as clarified that the hazards of
snow and ice are not necessarily incompatible with premises liability, depending on the totalit y of the circumstances present. Hoffner v Lanctoe , 492 Mich 450, 463-464; 821 NW2d 88 (2012). Furthermore, openness and obviousness is tested from an objecti ve standpoint, so it is irrelevant what plaintiff in this case actually and personally knew about the property. Novotney v Burger King Corp , 198 Mich App 470, 474-475; 499 NW2d 379 (1993).

I would have thought it basic common sense and a matter of com mon knowledge that a layer of snow could effectivel y cloak rough terrain, as well as the basic fact that an unpredictable surface is intrinsically more dangerous than a flat one simply due to its unpredictability. The sum can be both greater than and indivisible from the total of its parts; I am therefore not persuaded that the particular haza rd here, only part of which w as made up of snow and ice, was in fact open and obvious. For r easons already discussed above, I am equally dubious that the hazard was effectively unavoidable.

I would affirm.

/s/ Amy Ronayne Krause