-1- 

STATE OF MICHIGAN 

COURT OF APPEALS 

DENISE FOWLER as Next Friend of 

VIRGINIA JANE RAWLUSZKI, 

 Plaintiff-Appellee, 

UNPUBLISHED 

September 15, 2015 

v No. 310890 

Bay Circuit Court 

MENARD, INC., LC No. 11-003317-NO 

 Defendant-Appellant. 

Before: RONAYNE KRAUSE, P.J., and WILDER and STEPHENS, JJ. 

PER CURIAM. 

 This case arises from a pedestrian-vehicle collision in defendant Menard’s parking lot. 

The circuit court denied a motion for summary disposition filed by defendant. This Court 

initially denied defendant’s application for leave to appeal.1 This matter is before us on remand 

from the Supreme Court for consideration as on leave granted.2

 For the reasons set forth in this 

opinion, we affirm. 

I. BACKGROUND 

 Denise Fowler (plaintiff) is next friend and the daughter of deceased Virginia Jane 

Rawluszki (the decedent) in this premises liability action against defendant Menard, Inc. 

Decedent was struck by a motor vehicle as she walked in the crosswalk from the defendant’s 

store to the defendant’s parking lot. She suffered a brain injury that eventually led to her death. 

Decedent filed her original complaint on May 3, 2011, against Dale Paul VanWert, as driver of 

the vehicle that struck her, and defendant as landowner. The complaint included claims of 

negligence that VanWert failed to exercise reasonable care in the operation of his vehicle and 

that defendant failed in its duties and obligations to decedent as an invitee. Defendant filed an 

answer and notice of affirmative defenses that included: comparative negligence, open and 

obvious, lack of notice, collateral source, failure to mitigate damages, fault of others, and failure 

to state a claim upon which relief can be granted. The complaint was amended on January 24, 

 

1 Fowler v Menard, Inc, unpublished order of the Court of Appeals, entered May 16, 2013 

(Docket No. 310890). 

2 Fowler ex rel. Rawluszki v Menard, Inc, 495 Mich 897; 839 NW2d 205 (2013). 
-2- 

2012, substituting Fowler as next of friend for the then incapacitated decedent, and adding Lisa 

Gingerich, the owner of the vehicle driven by VanWert, as a defendant. 

 Plaintiff asserted that the crosswalk created a feigned zone of safety and that defendant 

had a duty to take extra measures to install signage or traffic signals to warn oncoming vehicles 

of the pedestrian crossing. Defendant filed its motion for summary disposition under both MCR 

2.116(C)(8) and (10) arguing that the crosswalk, as part of its parking lot, was an open and 

obvious condition such that a pedestrian could anticipate the danger of vehicles driving through. 

Relying heavily on the case of Richardson v Rockwood Center, LLC, 275 Mich App 244; 737 

NW2d 801 (2007), defendant urged the trial court to find, like the court in Richardson did, that 

the lack of signs or other traffic control devices did not constitute a special aspect that would 

remove this case from the open and obvious doctrine. Plaintiff countered that the danger posed 

by the crosswalk was not open and obvious and, in the alternative, that the failure to employ 

signage created a special aspect. 

 In addition to the briefs submitted by plaintiff and defendant,

3

 the court had the report of 

accident reconstruction expert Donald E. Smith, Jr., the depositions of VanWert and first 

responder Deputy Gillman, along with numerous diagrams, reports and other exhibits. Smith’s 

report was critical of the design of the parking lot. Specifically the report indicated, “I also am 

of the opinion that the design of the crosswalks at this Menards are substandard for safety. . . . 

There are no warning signs, no pedestrian crosswalk warning signs or any type of signage. The 

combination of these design problems creates an unreasonable risk to pedestrians.” Smith found 

that VanWert’s driving negligence in combination with the parking lot’s design were the causes 

of decedent’s injury. VanWert stated in his deposition that he knew there was a crosswalk, that 

he did not see any markings for the crosswalk on the ground and acknowledged that he did not 

see the decedent before his car struck her because of the sun in his eyes. Deputy Gillman 

testified that VanWert’s account of the accident to him was consistent with VanWert’s 

deposition testimony and that his survey of the accident site supported the theory that the sun 

would have interfered with VanWert’s vision. The pictorial evidence was consistent with the 

uncontested description of the crosswalk as being unmarked and in proximity to the entry and 

exit doors. Plaintiff also offered certain industry standard documents and publications from the 

Michigan Secretary of State. 

 The trial court denied defendant’s motion, reasoning that while parking lot dangers were 

open and obvious there was a question of fact as to whether the crosswalk as designed created a 

special aspect that gave rise to a duty on the part of defendant as the premises owner. The court 

held that, while defendant might not have been required to do anything to its parking lot, once it 

did do something, it had to be done in a reasonable and non-negligent manner. While the court 

considered documentary and testamentary evidence implicating MCR 2.116(C)(10), it did not 

rule on proximate cause. The trial court issued an order both denying defendant’s motion for 

summary disposition and staying proceedings to permit defendant’s appeal to this Court. 

Defendant's motion for reconsideration was denied, also. This Court denied leave to appeal and 

 

3

 VanWert and Gingerich did not participate in defendant’s motion for summary disposition. 

They were later dismissed from this action after having reached a settlement with plaintiff. 
-3- 

defendant sought leave to appeal to the Supreme Court. That Court, in lieu of granting leave, 

remanded the case to this Court for review as if on leave granted. 

II. STANDARD OF REVIEW 

 This Court reviews de novo a trial court’s decision on a motion for summary disposition. 

Hoffner v Lanctoe, 492 Mich 450, 459; 821 NW2d 88 (2012). 

 Defendant motioned the trial court for summary disposition under MCR 2.116(C)(8) and 

MCR 2.116(C)(10). A motion under MCR 2.116(C)(8) “tests the legal sufficiency of the 

complaint on the basis of the pleadings alone to determine if the opposing party has stated a 

claim for which relief can be granted.” Begin v Mich Bell Tel Co, 284 Mich App 581, 591; 773 

NW2d 271 (2009); MCR 2.116(G)(5). “All well-pleaded factual allegations are accepted as true 

and construed in a light most favorable to the nonmovant.” Maiden v Rozwood, 461 Mich 109, 

119, 597 NW2d 817 (1999). Summary disposition under MCR 2.116(C)(8) is proper when the 

nonmoving party has failed to state a claim on which relief can be granted. MacDonald v PKT, 

Inc, 464 Mich 322, 332; 628 NW2d 33 (2001). “[T]he existence of a legal duty is a question of 

law for the court to decide.” Anderson v Wiegand, 223 Mich App 549, 554; 567 NW2d 452 

(1997). 

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

Urbain v Beierling, 301 Mich App 114, 122; 835 NW2d 455 (2013) (citation omitted). This 

Court can consider the pleadings, depositions, admissions, and documentary evidence in its 

review. MCR 2.116(G)(5). The evidence submitted is viewed in a light most favorable to the 

nonmoving party. Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). 

Summary disposition under MCR 2.116(C)(10) is proper when there is no genuine issue as to 

any material fact, and the moving party is entitled to judgment as a matter of law. Maiden, 461 

Mich at 120. A genuine issue of material fact exists “when reasonable minds could differ on an 

issue after viewing the record in the light most favorable to the nonmoving party.” Allison v 

AEW Capital Management, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008) (citation omitted). 

III. DOES THE CROSSWALK CREATE A SPECIAL ASPECT? 

We conclude that the trial court reached the right result. For reasons that we will discuss 

below, we find that there is a duty on the part of the landowner to install crosswalks in a 

reasonable and prudent manner. We also find that two material questions of fact remain: 1) 

whether this crosswalk was installed in a manner that increased the risk to the pedestrian, and if 

so, 2) whether the crosswalk installation was a proximate cause of decedent’s injury. 

 Defendant argues here, as it did at the trial court, that this case is controlled by 

Richardson. The court in Richardson held that a landowner has no duty to warn or protect 

pedestrians from the dangers of vehicular and pedestrian traffic because those dangers are open 

and obvious. Id. at 249. Defendant denies that the creation of a marked crosswalk increases or 

obfuscates the open and obvious danger of pedestrian and vehicular traffic to create a special 

aspect and impose a duty on a landowner. Defendant asks this Court to analogize this case to the 

line of cases regarding criminal acts where a premises owner’s hiring of security does not create 

the duty to insure the safety of patrons against criminal acts. See Williams v Cunningham Drug 
-4- 

Stores, Inc, 429 Mich 495; 418 NW2d 381 (1988). Defendant posits that a landowner who takes 

steps to create a crosswalk, cannot be held to a duty of ordinary care in the design of that 

crosswalk simply because the design was not the most effective available. Finally, defendant 

argues that the sole cause of the incident was VanWert’s driving negligence. 

 Plaintiff, on the other hand, asks this Court to apply the holding in Stitt v Holland 

Abundant Life Fellowship, 462 Mich 591, 597; 614 NW2d 88 (2000), to this case and find that 

the crosswalk was a hidden danger or in the alternative that the crosswalk was a special aspect of 

the parking lot because the crosswalk created a pathway specifically for pedestrians which 

heightened the ordinary risks of being struck by a vehicle and created an artificial safety zone in 

which the decedent would have a reasonable presumption of safety. Plaintiff asks this court to 

be guided by the logic of cases from other jurisdictions, specifically, Poloski v Walmart Stores, 

Inc, 68 SW3d 445 (Mo App 2001) and Bangert v Wal-Mart Stores Inc, 295 Ill App 3d 418; 695 

NE2d 57 (1998) to determine the issues in this case. In these latter two cases, the open and 

obvious doctrine was rejected and the specific layout of the parking was considered. In Poloski, 

the accident occurred in a crosswalk and Ms. Poloski died as a result of the accident. Id. at 447. 

There the court held that the jury could consider the absence of a crosswalk marking sign. Id. at 

450. In Bangert there were no signs or crosswalks, but the court considered the danger of 

pedestrians walking through the parking lot while being distracted by their packages or their 

children and the little effort it would have taken Wal-Mart to address the foreseeable dangers. 

295 Ill App 3d at 423. 

 The trial court made a ruling that a duty was owed to the decedent. Unless the decedent 

was owed some duty of care by defendant, plaintiff may not maintain an action for decedent’s 

injury or death. “A negligence action may only be maintained if a legal duty exists which 

requires the defendant to conform to a particular standard of conduct in order to protect others 

against unreasonable risks of harm.” Burnett v Bruner, 247 Mich App 365, 368; 636 N.2d 773 

(2001) (citation omitted). We are reminded of the rule of Fultz that, “[i]f one voluntarily 

undertakes to perform an act, having no prior obligation to do so, a duty may arise to perform the 

act in a non-negligent manner.” Fultz v Union-Commerce Associates, 470 Mich 460, 465; 683 

NW2d 587 (2004). This duty is one recognized at common-law. See Clark v Dalman, 379 Mich 

251, 260-261; 150 NW2d 755 (1967). 

The duties of a landowner have been further defined. In general, a landowner has a duty 

to “exercise reasonable care to protect [an] invitee from an unreasonable risk of harm caused by 

a dangerous condition on the land.” Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 

384 (2001) (citation omitted). This duty of reasonable care however, does not extend to open 

and obvious dangers because such dangers are supposed to be easily discernible to an invitee and 

an invitee has a “coexisting ability to take reasonable measures to avoid such hazards.” Bailey v 

Schaaf, 494 Mich 595, 606; 835 NW2d 413 (2013). Nonetheless, there are some instances 

where even an open and obvious danger is so great that the law imposes an additional duty on the 

landowner again to exercise reasonable care to protect his invitees from it. As explained in

Lugo, 

if the particular activity or condition creates a risk of harm only because the 

invitee does not discover the condition or realize its danger, then the open and 

obvious doctrine will cut off liability if the invitee should have discovered the 
-5- 

condition and realized its danger. On the other hand, if the risk of harm remains 

unreasonable, despite its obviousness or despite knowledge of it by the invitee, 

then the circumstances may be such that the landowner is required to undertake 

reasonable precautions. [464 Mich at 516-517.] 

 When an activity or condition on an owner’s land creates a risk that is unreasonably 

dangerous, it is referred to as a special aspect of the land. When special aspects exist, the 

premises owner has a duty to undertake reasonable precautions to protect invitees from the 

unreasonable risks created. Id. at 517. Our Supreme Court has recognized two instances where 

special aspects give rise to liability: “when the danger is unreasonably dangerous or when the 

danger is effectively unavoidable. In either circumstance, such dangers are those that ‘give rise 

to a uniquely high likelihood of harm or severity of harm if the risk is not avoided[.]’ ” Hoffner, 

492 Mich at 463 (citation omitted). 

This Court addressed parking lot hazards in Richardson. There, we opined that the risks 

of potentially calamitous interactions between pedestrians and automobiles were open and 

obvious. Therefore, this Court found that there was neither a duty to protect the pedestrian or 

warn the driver regarding the risks of harm. In the instant case, the trial court acknowledged that 

precedent, as do we. However, the trial court noted that the crosswalk as designed altered the 

nature of the parking lot much in the way the natural accumulation of ice and snow could be 

altered as to increase or conceal the known risks from such conditions to the extent that a duty in 

certain circumstances could be imposed on the landowner. We agree, but analogize not to snow 

and ice but to cases involving certain affirmative acts of merchant landowners. 

Storeowners were defined as special class of landowners in Clark v Kmart Corp, 465 

Mich 416, 419; 634 NW2d 347 (2001). On remand, in Clark, this Court observed that, “an 

individual shopping in a self-service store is entitled to presume that passageways provided for 

his use are reasonably safe, and is not under an obligation to see every defect or danger in his 

pathway.” Clark v Kmart Corp (On Remand), 249 Mich App 141, 152; 640 NW2d 892 (2002) 

(emphasis added), citing Jaworski v Great Scott Supermarkets, Inc, 403 Mich 689, 699; 272 

NW2d 518 (1978). Discussing end caps designed by the merchant to attract a customer’s 

attention, our Supreme Court in Jaworski wrote, “ . . . The storekeeper certainly intended that 

his customers would devote the major part of their attention to the merchandise which was being 

displayed, rather than to the floor to discover possible obstructions in the aisle, . . . A patron of 

a self-service type store . . . is entitled to rely upon the presumption that the proprietor will see 

that the passageways provided for his use are reasonably safe . . .” 403 Mich at 699-700. Two 

recent cases from this Court have addressed Jaworski; Kennedy v Great Atlantic and Pacific Tea 

Co, 274 Mich App 710; 737 NW2d 179 (2007) and Quinto v Woodward Detroit CVS, LLC, 305 

Mich App 73; 850 NW2d 642 (2014). 

Kennedy first acknowledged Bertrand v Alan Ford, Inc, 449 Mich 606; 537 NW2d 185 

(1995), and its pronouncement that “the possessor of land can and should anticipate that the 

dangerous condition will cause physical harm to the invitee notwithstanding its known or 

obvious danger. We fully recognize that such reason to expect harm to the visitor from known or 

obvious dangers may arise, for example, where the possessor has reason to expect that the 

invitee’s attention may be distracted, so that he will not discover what is obvious.” Kennedy, 

274 Mich at 718 (internal quotation marks and citations omitted). Kennedy concluded, “that in 
-6- 

such cases the open and obvious doctrine will not bar the defendant’s duty to the invitee.” Id. 

Quinto reminds us that the principles of Clark and Jaworski regarding a distracted invitee must 

be understood within the context of Lugo. Quinto, 305 Mich App at 78-79. Again referring to 

Jaworski, plaintiff asks us to conclude that all shoppers, as a matter of course, are distracted by 

supermarket displays and merchandise. The Kennedy court cited Charleston v Meijer, Inc, 124 

Mich App 416, 419; 335 NW2d 55 (1983), for the caution that,“[w]e see no valid reason to 

extend Jaworski and create a special standard of care for supermarket patrons.” Thus, Kennedy

blended Lugo with Clark and held that a special aspect could be demonstrated with the 

introduction of case specific facts “with respect to whether defendant knew or should have 

known that his, [the injured party’s,] attention would be distracted away from the open and 

obvious danger.” Kennedy, 274 Mich App at 719. Quinto, acknowledging the precedent of 

Kennedy, persuasively argued that Lugo’s focus was on conditions to the land that were neither 

created by the landowner nor continuous. Quinto, 305 Mich App at 78-79. The crosswalk here 

was created by the landowner and was a continuous condition on that land. 

 The question decided by the trial court in the instant case was whether there was any duty 

owed to the decedent. In its ruling, the court noted that the decedent was presumed to have acted 

with due care for her own safety, and that defendant created the crosswalk with the intent to draw 

pedestrian traffic. The court found that this continuous, intentionally created feature of the 

property created a safety zone, was a special aspect, and warranted the imposition of a duty of 

care. Defendant has not submitted anything to question whether it knew or should have known 

that the crosswalk it created would give the pedestrian a sense of safety or distraction. Smith’s 

expert report, offered by plaintiff, supports such a finding, however. 

 We decline to address the sole proximate cause argument of defendant. The trial court 

was not asked to determine if there was a material question of fact as to VanWert’s negligence, 

and we will not address a question neither considered nor decided by the trial court. Coates v 

Bastian Bros, Inc, 276 Mich App 498, 509-510; 741 NW2d 539 (2007). 

 Affirmed. 

/s/ Amy Ronayne Krause 

/s/ Cynthia Diane Stephens