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STATE OF MICHIGAN 

COURT OF APPEALS 

ALEKSANDER HUK and MALGORZATA HUK, 

 Plaintiffs-Appellants, 

UNPUBLISHED 

July 16, 2015 

v No. 319822 

Macomb Circuit Court 

GOLFPOINTE VILLAGE CONDOMINIUM 

ASSOCIATION, 

LC No. 2012-004662-NO 

 Defendant-Appellee. 

Before: HOEKSTRA, P.J., and JANSEN and METER, JJ. 

PER CURIAM. 

 Plaintiffs, Aleksander Huk and Malgorzata Huk, appeal as of right an order granting 

summary disposition of their premises liability and loss of consortium claims against defendant, 

Golfpointe Village Condominium Association, where they owned a condominium and where 

Aleksander allegedly was injured in a fall when riding his bicycle. We affirm. 

 Plaintiffs argue that the trial court erred by granting defendant’s motion for summary 

disposition of their common-law premises liability claim on the basis that the dangers alleged 

were open and obvious. We disagree. 

 The trial court granted summary disposition pursuant to MCR 2.116(C)(10), which tests 

the factual sufficiency of the complaint. Urbain v Beierling, 301 Mich App 114, 122; 835 

NW2d 455 (2013). 

In evaluating a motion for summary disposition brought under Subrule (C)(10), a 

reviewing court considers affidavits, pleadings, depositions, admissions, and other 

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

the motion. Summary disposition is properly granted if the proffered evidence 

fails to establish a genuine issue regarding any material fact and the moving party 

is entitled to judgment as a matter of law. [Klein v HP Pelzer Auto Sys, Inc, 306 

Mich App 67, 75; 854 NW2d 521 (2014) (citations omitted).] 

 In a premises liability case, the duty that an owner or possessor of land owes to a visitor 

depends on the status of the visitor at the time of the injury. Stitt v Holland Abundant Life 

Fellowship, 462 Mich 591, 596; 614 NW2d 88 (2000); Stanley v Town Square Coop, 203 Mich 

App 143, 146-147; 512 NW2d 51 (1993). A visitor can be a trespasser, a licensee, or an invitee, 
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Stitt, 462 Mich at 596, depending upon the purpose of the landowner or premises possessor in 

inviting the visitor onto the premises, Sanders v Perfecting Church, 303 Mich App 1, 4-5; 840 

NW2d 401 (2013). Although the parties dispute whether Aleksander was a licensee or an 

invitee, it is unnecessary to decide that question because, regardless of his status, the open and 

obvious danger doctrine applied to bar his claim. 

 An open and obvious danger apprises the plaintiff of the full extent of the risk involved. 

Bullard v Oakwood Annapolis Hosp, 308 Mich App 403; ___ NW2d ___; 2014 WL 6909610, p 

3 (2014); Kosmalski v St John’s Lutheran Church, 261 Mich App 56, 67; 680 NW2d 50 (2004). 

As this Court explained in Bullard, 2014 WL 6909610, p 3: 

 “Whether a danger is open and obvious depends on whether it is

reasonable to expect that an average person with ordinary intelligence would have 

discovered it upon casual inspection.” [Hoffner v Lanctoe, 492 Mich 450, 472; 

821 NW2d 88 (2012).] This standard is an objective, not subjective, one, and 

requires “an examination of the objective nature of the premises at issue.” Id. 

(quotation marks and citation omitted). “The objective standard recognizes that a 

premises owner is not required to anticipate every harm that may arise as a result 

of the idiosyncratic characteristics of each person who may venture onto his 

land.” Id. at 461 n 15. 

 Plaintiffs argue that the deteriorating condition of the road and the presence of gravel 

made it unreasonably dangerous. There is no question of fact that an average person of ordinary 

intelligence would have discovered these alleged dangers upon casual inspection. Defendant’s 

president testified that the roads in the complex were repaired annually after the winter. Before 

Aleksander’s fall, the deterioration that allegedly caused the fall had been observed during a 

walk-through of the complex and was marked with paint to make it stand out for scheduled 

repairs. Despite Aleksander’s testimony that he only saw the pothole that he swerved to avoid 

just before his accident and he did not recall seeing the gravel upon which his tire allegedly 

slipped, Aleksander admitted that he had previously observed the road’s deterioration, which he 

described as potholes surrounded by gravel. Plaintiffs even complained to each other about the 

condition of defendant’s roads. 

 On appeal, plaintiffs attempt to create a question of fact regarding the open and obvious 

nature of the alleged dangers by claiming that the gravel could have been mistaken for an asphalt 

patch. Although the record demonstrates that asphalt patchwork had been done previously for 

defendant, no facts demonstrate that patchwork and loose gravel were indistinguishable upon 

casual inspection. Moreover, Aleksander did not testify that he was unable to make such a 

distinction. Plaintiffs’ argument is unpersuasive. 

 Similarly, plaintiffs note that, in the pictures of the area where Aleksander fell, there was 

no obvious gravel. Again, plaintiffs’ argument is unpersuasive because the pictures do not 

reflect what a casual inspection would have revealed at the time of the fall. Rather, they were 

taken after repairs had already begun. 

 Plaintiffs also argue that the presence of the pothole, which Aleksander allegedly turned 

to avoid, made the gravel surrounding the pothole an unavoidable, unreasonable risk. 
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“[L]iability does not arise for open and obvious dangers unless special aspects of a condition 

make even an open and obvious risk unreasonably dangerous. This may include situations in 

which it is ‘effectively unavoidable’ for an invitee to avoid the hazard posed by such an 

inherently dangerous condition.” Bullard, 2014 WL 6909610, p 3 (italics, quotation marks, and 

citation omitted). 

“Unavoidability is characterized by an inability to be avoided, an inescapable 

result, or the inevitability of a given outcome.” An effectively unavoidable 

hazard, therefore, “must truly be, for all practical purposes, one that a person is 

required to confront under the circumstances.” Put simply, the plaintiff must be 

“effectively trapped” unless he faces the hazard. [Id. at 4 (italics and citations 

omitted).] 

“As an example . . . if an open and obvious hazard exists at the only exit of a commercial 

building, leaving the building would require an invitee to encounter the risk of harm without any 

alternative.” Joyce v Rubin, 249 Mich App 231, 241-242; 642 NW2d 360 (2002). In contrast,

here, Aleksander was not trapped and he admitted that the alleged danger was avoidable. He 

could have used the sidewalk or gotten off the bicycle and walked around the alleged danger. 

 In sum, there is no genuine issue of material fact that the alleged dangers were open and 

obvious. Therefore, the trial court properly granted defendant’s motion for summary disposition 

of the common-law premises liability claim in plaintiffs’ complaint. 

 Plaintiffs also argue that the trial court erred by granting defendant’s motion for summary 

disposition of their claim that defendant had statutory duties of care, which are not barred by the 

open and obvious danger doctrine. See Benton v Dart Props, Inc, 270 Mich App 437, 441; 715 

NW2d 335 (2006) (the open and obvious doctrine does not operate to deny liability when the 

defendant has a statutory duty to maintain the premises in reasonable repair). We disagree. 

 Plaintiffs first argue that defendant had a statutory duty under the landlord-tenant 

relationship act, MCL 554.131 et seq. In particular, MCL 554.139 provides, in relevant part: 

 (1) In every lease or license of residential premises, the lessor or licensor 

covenants: 

 (a) That the premises and all common areas are fit for the use intended by 

the parties. 

 (b) To keep the premises in reasonable repair during the term of the lease 

or license, and to comply with the applicable health and safety laws of the state 

and of the local unit of government where the premises are located, except when 

the disrepair or violation of the applicable health or safety laws has been caused 

by the tenants wilful or irresponsible conduct or lack of conduct. 

“When a statute’s language is clear and unambiguous, we must apply the terms of the statute to 

the circumstances of the particular case . . . and we will not read words into the plain language 

of the statute.” PIC Maintenance, Inc v Dep’t of Treasury, 293 Mich App 403, 410-411; 809 

NW2d 669 (2011). As the trial court found, the plain language of MCL 554.139 applies to leases 
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and licenses of residential premises; it does not impose a duty upon a condominium association 

when dealing with condominium owners. Contrary to plaintiffs’ argument, the mere fact that 

common-law duties of a landlord have been imposed on condominium associations in some 

nonbinding case law does not create a separate statutory duty under this act. 

 In addition, plaintiffs cite the following provision from the Condominium Act: 

 A person or association of co-owners adversely affected by a violation of 

or failure to comply with this act, rules promulgated under this act, or any 

provision of an agreement or a master deed may bring an action for relief in a 

court of competent jurisdiction. The court may award costs to the prevailing 

party. [MCL 559.215(1).] 

The plain language of MCL 559.215(1) merely provides a right to bring an action in court. It 

does not impose any statutory duty of care on defendant such that it applies to the claims brought 

in plaintiffs’ complaint, which did not raise the Condominium Act as a basis for relief. 

 In sum, because plaintiffs failed to establish any statutory duty of care, the trial court 

properly granted defendant’s motion to dismiss that portion of plaintiffs’ complaint.1

 Plaintiffs’ 

loss of consortium claim was also properly dismissed. See Long v Chelsea Community Hosp, 

219 Mich App 578, 589; 557 NW2d 157 (1996), abrogated in part on other grounds by Feyz v 

Mercy Memorial Hosp, 475 Mich 663; 719 NW2d 1 (2006) (a derivative claim for loss of 

consortium can no longer stand when the primary claim fails). 

 Affirmed. 

/s/ Joel P. Hoekstra 

/s/ Kathleen Jansen 

/s/ Patrick M. Meter 

 

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 Absent proof of any duty of care, it is unnecessary to address plaintiffs’ arguments regarding 

comparative negligence. See Riddle v McLouth Steel Prod Corp, 440 Mich 85, 99; 485 NW2d 

676, 681 (1992) (only when a defendant’s legal duty is established can a plaintiff’s fault be 

compared with that of the defendant).