Premises liability; Trip over an uneven patch of asphalt that defendant had applied to repair a portion of the sidewalk; Open & obvious; Special aspects; Whether the asphalt patch was effectively unavoidable

The court concluded that the condition of the asphalt-patched sidewalk in front of the defendant-restaurant was open and obvious as a matter of law. Thus, the trial court erred in holding that a genuine issue of material fact existed as to the open and obvious nature of the condition. Also, it erred in holding that there was a question of fact whether the dangerous condition on the land had special aspects. Thus, the court reversed and remanded for entry of summary disposition for defendant. The decedent “tripped over an uneven patch of asphalt that defendant had applied to repair a portion of sidewalk in front of the only public entrance to its restaurant.” At issue was whether the patch was open and obvious, and if so, whether it had any special aspects. Defendant argued that the condition "was open and obvious as a matter of law.” The photos provided by the parties were “unambiguous and clearly show that the asphalt patch was a different color and texture from the surrounding area.” Also, they clearly showed “the patch was slightly elevated. Although plaintiff contended that the patch was less obvious in person than it was in the photographs, he nevertheless conceded that the pictures were fair and accurate representations of the condition on the day of the incident.” The court held that “whether the decedent was using reasonable care at the time or had any actual knowledge of the patch is not relevant. Even presuming the photographs make the patch more readily apparent than the patch would be in person, they still demonstrate it is ‘reasonable to expect that the invitee would discover the danger[.]’” Plaintiff also argued that even if the court “determines the asphalt patch was open and obvious, it should still affirm because the trial court properly concluded there was a question of fact whether the dangerous condition on the land had special aspects.” The court concluded that although a grave tragedy occurred, it was “not persuaded that the asphalt patch was unreasonably dangerous.” Plaintiff argued that it was effectively unavoidable. The photos “unambiguously show that although the asphalt patch was long, it did not span the entire length of the sidewalk.” Rather, there was “ample room to walk around the patch between the entrance of the restaurant and the parking lot. Because an alternative path is clearly available, the asphalt patch is not effectively unavoidable.”