If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
RODICA MARCU, UNPUBLISHED
September 22, 2022
Plaintiff-Appellee,
v No. 359061
Wayne Circuit Court
MEIJER, INC., LC No. 20-002877-NO
Defendant-Appellant.
Before: GLEICHER, C.J., and MARKEY and PATEL, JJ.
MARKEY, J. (dissenting).
I would reverse the trial court’s order denying defendant’s motion for summary disposition
and remand the case for entry of an order summarily dismissing plaintiff’s complaint.
Accordingly, I dissent.
“In general, a premises possessor owes a duty to an invitee to exercise reasonable care to
protect the 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). In this case, we
have the unusual unequivocal evidence provided by a video recording of the entire scenario that
underlies plaintiff’s cause of action. After watching it and applying the applicable law to the facts,
I simply cannot conclude that any reasonable juror would find that the restroom door constituted
a “dangerous” condition that posed an “unreasonable risk of harm” to customers walking by the
door, even considering the presence of the trashcan and the dimensions of the hallway. 1 I agree
with the following sentiments expressed by this Court in Prebenda v Tartaglia, 245 Mich App
168, 170; 627 NW2d 610 (2001):
Considering the evidence in a light most favorable to plaintiff, we conclude
that no reasonable juror could have found that a dangerous condition on the land
1
“A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt
to the opposing party, leaves open an issue upon which reasonable minds might differ.” West v
Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
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was involved here. To put it plainly, the decedent did not encounter a dangerous
condition at the time of the accident; she encountered a commonplace and ordinary
door. Plaintiff argues that the door was dangerously faulty because it had no
window allowing people on each side to see one another. We conclude that no
reasonable juror could accept that argument in light of the fact that most doors
simply do not have such windows. It seems that people generally approach doors
cautiously, knowing that someone might be coming from the other direction. In any
event, plaintiff was appropriately prevented from proceeding to trial on a theory
that is so convincingly belied by everyday experience. [Citation omitted.]
Even though the instant case involved a patron walking past a door and not through a door, the
matter still entailed “a commonplace and ordinary door” and an “everyday experience.” Here, it
is important to note that plaintiff was able to easily and safely navigate the hallway without any
difficulty when heading to the women’s restroom even though the trashcan was present and the
men’s restroom door was open. This is what leads me to the primary reason for my dissent.
In Riddle v McLouth Steel Prods Corp, 440 Mich 85, 96; 485 NW2d 676 (1992), our
Supreme Court explained:
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. If the plaintiff is a business
invitee, the premises owner has a duty to exercise due care to protect the invitee
from dangerous conditions. However, where the dangers are known to the invitee
or are so obvious that the invitee might reasonably be expected to discover them,
an invitor owes no duty to protect or warn the invitee unless he should anticipate
the harm despite knowledge of it on behalf of the invitee. [Citations omitted;
emphasis added.]
Therefore, a duty to protect or warn generally does not exist (1) when an invitee knows of
a dangerous condition or (2) when a dangerous condition is open and obvious. In this case, plaintiff
walked down the hallway and past the trashcan and past an open men’s restroom door that extended
out into the hallway while being utilized by a male customer. Assuming for the sake of argument
that the door, the trashcan, and the width of the hallway, when viewed in combination, constituted
a dangerous condition of the property, we may not properly ignore the fact that plaintiff
encountered the dangerous condition and knew of each and every element comprising that
condition, i.e., the opened restroom door, the narrow hallway, and the trashcan across from the
restroom door. Consequently, there is no genuine issue of material fact that plaintiff safely
confronted these visible circumstances on making her way to the women’s restroom. She did not
encounter the dangerous condition a year before, months before, weeks before, or even hours
before she was struck by the door. Rather, she encountered and became aware or had knowledge
of the dangerous condition minutes before she was allegedly injured. Accordingly, defendant had
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no duty to warn her of the purported dangerous condition.2 And, therefore, plaintiff’s premises
liability action fails as a matter of law, and I dissent.
/s/ Jane E. Markey
2
Furthermore, there were no special aspects of the condition; it was not effectively unavoidable,
nor did it present a uniquely high likelihood or severity of harm. See Lugo, 464 Mich at 518-519.
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