Perkoviq v. Delcor Homes—lake Shore Pointe, Ltd

                                                                       Michigan Supreme Court
                                                                       Lansing, Michigan 48909
____________________________________________________________________________________________
                                                                C hief Justice                   Justices
                                                                Maura D. Cor rigan	              Michael F. Cavanagh




Opinion
                                                                                                 Elizabeth A. Weaver
                                                                                                 Marilyn Kelly
                                                                                                 Clifford W. Taylor
                                                                                                 Robert P. Young, Jr.
                                                                                                 Stephen J. Markman

____________________________________________________________________________________________________________________________

                                                                                  FILED APRIL 24, 2002





                ANTON PERKOVIQ,


                        Plaintiff-Appellee,


                v	                                                                               No. 116059


                DELCOR HOMES—LAKE SHORE

                POINTE, LTD.,


                     Defendant-Appellant.

                ________________________________

                PER CURIAM


                        The plaintiff was injured when he fell from the roof of


                a partially constructed house as he was preparing to paint in


                the course of his employment.                    He brought this action against


                defendant,         the    owner      and     the       general        contractor            of   the


                subdivision development.                   The circuit court granted summary


                disposition for the defendant.                      The Court of Appeals reversed


                in part, finding that genuine issues of material fact existed


                regarding plaintiff’s claim that defendant, as owner of the


                property, was liable on a premises liability theory.


                        We conclude that the evidence before the circuit court on


                the motion for summary disposition did not provide a basis for

establishing premises liability. We thus reverse the judgment


of the Court of Appeals and reinstate the circuit court’s


judgment for the defendant.


                                 I


     Defendant Delcor Homes—Lake Shore Pointe, Ltd., was both


owner and general contractor of a residential subdivision


development near Howell in Livingston County.      The plaintiff


was employed by a subcontractor on the project, Kalaj Painting


and Decorating.     Delcor had hired Kalaj to perform painting


services at the project, which involved construction of more


than two hundred homes.     On November 22, 1995, the plaintiff


was working on the roof of a home under construction when he


slipped on ice or frost that had formed on the roof, falling


approximately twenty feet to the ground and suffering serious


injuries. 


        The plaintiff and a coworker had been instructed to paint


the upper level exterior of three homes.     They went to one of


them.     The rough roof of the house consisted only of plywood


sheeting. Shingles were not yet in place. In his deposition,


the plaintiff testified that several 2 x 4 slats of wood were


nailed at the lower edge of the roof to provide footing.    This


was insufficient to allow plaintiff to climb all the way up


the roof to paint the exterior walls.      He was attempting to


nail additional slats onto the roof when he slipped on the ice


or frost on the plywood and fell. 




                                 2

     Plaintiff filed this action, alleging that the defendant


was liable on the basis of its role as a general contractor on


the project and its status as owner of the property.     After


discovery, the defendant moved for summary disposition under


MCR 2.116(C)(10), contending that no genuine issue of material


fact existed and that it was entitled to judgment as a matter


of law.   The circuit court granted the motion and entered


judgment for the defendant.   The plaintiff appealed.


                              II


     The Court of Appeals first dealt with the question of


defendant’s liability on the basis of its status as the


general contractor on the project.    The plaintiff’s complaint


included allegations about the defendant’s failure to provide


a safe workplace and appropriate safety equipment, as well as


other claims about its operation of the construction site.


The Court of Appeals analyzed the principles applicable to


such claims and concluded that the plaintiff had failed to


establish a genuine issue of material fact regarding those


theories. The plaintiff has not challenged that aspect of the


Court of Appeals decision in this Court.


     The Court of Appeals then turned to plaintiff’s theory


that defendant was liable on the basis of its status as owner


or occupier of the premises.         It was not disputed that


plaintiff, as an employee of a subcontractor on the project,


was an invitee. The Court stated that an invitor’s legal duty


is to exercise reasonable care to protect invitees from


                              3

unreasonable risk of harm caused by a dangerous condition of


the land that the landowner knows or should know that invitees


will not discover, realize, or protect themselves against.


Bertrand v Alan Ford, Inc, 449 Mich 606, 617-618; 537 NW2d 185


(1995). If the dangerous conditions are hidden or latent, the


owner has a duty to warn the invitee of the dangers.          Knight


v Gulf & Western Properties, Inc, 196 Mich App 119, 124-125;


492 NW2d 761 (1992).     The Court of Appeals stated that even


where conditions are known or obvious to the invitee, the


owner may still be required to use reasonable care to protect


the   invitee   from   the   danger   if   the   risk   of   harm   is


unreasonable. 


      The Court of Appeals concluded that genuine issues of


material fact existed regarding premises liability:


           Here, it is undisputed that defendant is both

      owner and developer/general contractor of the

      subdivision under construction, and as possessor of

      the land, defendant has the legal duty to protect

      its invitees. The danger of slipping off a roof

      appears to be open and obvious, especially where

      there is frost on the roof and plaintiff himself

      and his co-worker testified that they told

      defendant that the roof was icy; thus, the failure

      to warn theory fails to establish liability.

      Further, the evidence does not establish a

      defective physical structure; instead, it appears

      that there was frost or ice on the roof because of

      the weather conditions. Such conditions may make

      the situation unreasonably dangerous, but the

      question arises as to whether defendant should

      expect that plaintiff, who paints for a living,

      will fail to protect himself against the danger.

      The evidence presented, including the contract and

      deposition testimony, is conflicting as to who was

      responsible for providing safety equipment and

      ensuring its use; either the general contractor,

      the subcontractor or both. A question exists as to


                                 4

     whether defendant should have anticipated that the

     ice/frost on the roof would cause physical harm to

     a painter notwithstanding its known and obvious

     danger. Based on the evidence presented and giving

     the benefit of reasonable doubt to the nonmoving

     party, a genuine issue of material fact exists as

     to whether defendant could be liable under the

     theory of premises liability; thus, we reverse the

     trial court’s grant of summary disposition in favor

     of defendant with regard to this theory of

     liability. [Unpublished opinion per curiam, issued

     October 1, 1999.][1]


                             III


     The defendant has filed an application for leave to


appeal to this Court. We held the application in abeyance for


Lugo v Ameritech Corp, Inc (Docket No. 112575), which has now


been decided.   464 Mich 512; 629 NW2d 384 (2001). 


     The appeal involves a trial court’s ruling on a motion


for summary disposition, which we review de novo.      Maiden v


Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).


                              IV


     This case presents a classic example of an open and


obvious danger in the premises liability setting.      There was


nothing hidden about the frost or ice on the roof, and anyone


encountering it would become aware of the slippery conditions.


     In Bertrand, supra, we considered the effect of an open


and obvious danger on the duty of the owner or possessor of





     1

       The Court of Appeals also rejected plaintiff’s claim

that the circuit court should have permitted amendment of the

pleadings to include a negligent selection/retention of

subcontractor claim.   The plaintiff has not cross-appealed

that issue.


                              5

land. Referring to 2 Restatement Torts, 2d, §§ 3432 and 343A,3


we explained:


          The invitor’s legal duty is “to exercise

     reasonable care to protect invitees from an

     unreasonable risk of harm caused by a dangerous

     condition of the land” that the landowner knows or

     should know the invitees will not discover,

     realize, or protect themselves against. [Quoting

     Williams v Cunningham Drug Stores, Inc, 429 Mich

     495, 499; 418 NW2d 381 (1988).]


                            * * * 


          Where a condition is open and obvious, the

     scope of the possessor’s duty may be limited.

     While there may be no obligation to warn of a fully

     obvious condition, the possessor still may have a

     duty to protect an invitee against foreseeably

     dangerous conditions. Thus, the open and obvious

     doctrine does not relieve the invitor of his

     general duty of reasonable care.


          When §§ 343 and 343A are read together, the



     2


          A possessor of land is subject to liability

     for physical harm caused to his invitees by a

     condition on the land if, but only if, he


          (a)  knows or by the exercise of reasonable

     care would discover the condition, and should

     realize that it involves an unreasonable risk of

     harm to such invitees, and


          (b) should expect that they will not discover

     or realize the danger, or will fail to protect

     themselves against it, and


          (c)   fails to exercise reasonable care to

     protect them against the danger.

     3


          A possessor of land is not liable to his

     invitees for physical harm caused to them by any

     activity or condition on the land whose danger is

     known or obvious to them, unless the possessor

     should anticipate the harm despite such knowledge

     or obviousness.


                              6

     rule generated is that 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 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 invitor is

     required to undertake reasonable precautions. [449

     Mich 609, 610-611 (emphasis in original).] 


     Bertrand involved a step in an automobile dealership. We


held that the step was an open and obvious condition and that


liability could be imposed only if something unusual made the


condition unreasonably dangerous:


          [B]ecause the danger of tripping and falling

     on a step is generally open and obvious, the

     failure to warn theory cannot establish liability.

     However, there may be special aspects of these

     particular steps that make the risk of harm

     unreasonable, and, accordingly, a failure to remedy

     the dangerous condition may be found to have

     breached the duty to keep the premises reasonably

     safe. [449 Mich 614.]


          In summary, because steps are the type of

     everyday occurrence that people encounter, under

     most circumstances, a reasonably prudent person

     will look where he is going, will observe the

     steps, and will take appropriate care for his own

     safety.     Under   ordinary   circumstances,   the

     overriding public policy of encouraging people to

     take reasonable care for their own safety precludes

     imposing a duty on the possessor of land to make

     ordinary steps “foolproof.” Therefore, the risk of

     harm is not unreasonable. However, where there is

     something unusual about the steps, because of their

     “character, location, or surrounding conditions,”

     then the duty of the possessor of land to exercise

     reasonable care remains. [449 Mich 616-617.]


     We   reiterated   those   principles   in   our   recent   Lugo


decision at 516-517:



                                7

          “[I]f 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 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  invitor   is   required  to   undertake

     reasonable precautions.“


     In sum, the general rule is that a premises

     possessor is not required to protect an invitee

     from open and obvious dangers, but, if special

     aspects of a condition make even an open and

     obvious risk unreasonably dangerous, the premises

     possessor has a duty to undertake reasonable

     precautions to protect invitees from that risk.

     [Emphasis in original.]


     Applying those principles to the facts of this case,


there is no question that the condition of the roof was open


and obvious.     Thus, the question is whether, despite its


obviousness and plaintiff’s knowledge of it, a factfinder


could determine that defendant breached a duty of reasonable


care in the circumstances. We conclude that it could not, and


that summary disposition was properly granted.       In its status


as owner, defendant had no reason to foresee that the only


persons who would be on the premises, various contractors and


their employees, would not take appropriate precautions in


dealing   with   the   open   and    obvious   conditions   of   the


construction site.     There were no special aspects of this


condition that made the open and obvious risk unreasonably


dangerous.





                                8

      The Court of Appeals seems to have confused general


contractor liability with the liability of a possessor of


premises.    In explaining its conclusion that defendant could


be liable on a premises liability theory, the Court used


analysis that was irrelevant to that theory and would be


applicable only to a claim against a general contractor.              It


stated:


           The evidence presented, including the contract

      and deposition testimony, is conflicting as to who

      was responsible for providing safety equipment and

      ensuring its use; either the general contractor,

      the subcontractor or both. 


      The fact that defendant may have additional duties in its


role as general contractor, however, does not alter the nature


of   the   duties   owed   by   virtue   of   its   ownership   of   the


premises.4    As owner, it had no reason to foresee that the


condition of the premises would be unreasonably dangerous, as


the roof lacked any special aspects that would make it so.            It


could not expect that employees of subcontractors working on


the house would fail to take necessary precautions to guard


against the obvious danger of the slippery condition of the


roof. 





      4

       As noted above, plaintiff’s other claim was that

defendant, as general contractor, did not take appropriate

measures to insure the safety of the job site. However, the

lower courts have held that this case does not come within the

exceptions to the general principle that general contractors

are not liable for injuries to subcontractors’ employees.

Plaintiff has not appealed that determination, and it is not

before us.


                                   9

     In short, plaintiff has presented no evidence that the


condition of the roof was unreasonably dangerous for purposes


of premises liability.            The mere presence of ice, snow, or


frost     on   a     sloped   rooftop   generally      does       not   create    an


unreasonably          dangerous      condition.            Plaintiff     has     not


articulated any action that could reasonably be expected of


possessors of land in Michigan to protect against the obvious


dangers that arise when snow, ice, or frost accumulate on


sloped rooftops. To avoid summary disposition on this type of


claim, a plaintiff must present evidence of “special aspects”


of the condition that differentiate it from the typical sloped


rooftop containing ice, snow, or frost.                    Lugo, supra.


        Accordingly, we reverse the judgment of the Court of


Appeals in part, and reinstate the circuit court’s grant of


summary disposition in favor of the defendant.


        CORRIGAN ,    C.J.,    and    TAYLOR ,   YOUNG ,    and    MARKMAN ,   JJ.,


concurred.





                                        10

              S T A T E        O F      M I C H I G A N


                              SUPREME COURT





ANTON PERKOVIQ,

     Plaintiff-Appellee,

v                                                            No.    116059

DELCOR HOMES-LAKE SHORE
POINTE, LTD.,

     Defendant-Appellant.
____________________________________

W EAVER, J. (concurring).

     I   concur   in    the    result    of    the   majority      opinion.

Plaintiff   presented    no     evidence      that   the   icy   roof   was


unreasonably dangerous despite its obviousness.


     CAVANAGH and KELLY , JJ., concurred with WEAVER , J.