Premises liability; The open & obvious doctrine; “Special aspects”; Lugo v Ameritech Corp, Inc; Actual or constructive notice; Lowrey v LMPS & LMPJ, Inc; Ordinary negligence

Concluding that plaintiff’s claim sounded only in premises liability, not ordinary negligence, the court held that there was no genuine issue of material fact the metal threshold on which she tripped and fell was “an open and obvious hazard.” Further, there were no special aspects and she offered “no evidence that defendants had actual or constructive notice of the allegedly loose and raised threshold.” Thus, the court affirmed summary disposition for defendants. The case arose after plaintiff “tripped on an allegedly loose and raised metal door plate at the entrance of defendants’ restaurant.” The court first determined that because her “claim arose from a condition on defendants’ property” it sounded only in premises liability. Agreeing with the trial court’s determination that the condition was open and obvious, the court noted that the restaurant threshold “was metallic in in appearance and was raised slightly above the outer cement sidewalk. The color and material of the threshold clearly contrasted from that of the sidewalk, the door frame, and the interior tile floor.” A photo of the threshold showed “that an average person would have noticed the raised threshold (essentially a small, ordinary step) and that it was not flush with the sidewalk if the area was casually inspected when entering the restaurant. Indeed, plaintiff admitted in her deposition that she saw the threshold before and while she opened the door to the restaurant. It was a clear day, and it was still light outside when the incident occurred. Plaintiff was also not carrying anything in her hands when she entered the restaurant.” As to her special aspects argument, the court noted that she “had a choice whether to confront the hazard, and therefore, the hazard could not have been truly or effectively unavoidable.” In addition, she offered no evidence that the “threshold posed a substantial risk of death or serious injury.”