Premises liability; Kandil-Elsayed v F & E Oil, Inc; Trip over a construction barricade leg; A dangerous condition; The law of the case doctrine; Locricchio v Evening News Ass’n

The court held that defendant-Consumers Energy was correctly granted summary disposition because the evidence did not “create a genuine issue of material fact that Consumers breached its duty to plaintiff” in this case arising from her trip over the leg of a construction barricade. The case was before the court for a third time. The trial court on remand “recognized—consistent with the prior appellate rulings in the case—that Consumers owed plaintiff a duty as a premises possessor, and then found no genuine issue of material fact that [it] had not breached that duty.” The court agreed. Even assuming she was Consumers’ invitee “at the time of her fall and was thus owed ‘the highest level of protection under premises liability law,’” Consumers was entitled to judgment as a matter of law. She offered several photos of the barricade and described its exact location in her deposition, “but consistent with the trial court’s findings, nothing in the” photos or her description suggested “the barricade was broken, defective, concealed, or placed in such a way as to create an inherently dangerous condition.” Rather, the photos and her description indicated that she “encountered a large, brightly colored construction barricade that was situated parallel and very near to a building with partial overlap on the concrete portion of the sidewalk. At the time of plaintiff’s fall, it was approximately 12:30 pm on a clear and sunny day, and [she] admitted during her deposition that neither the barricade nor its legs were concealed at that time.” While she submitted a photo “taken sometime after her fall that depicted a partial shadow on a leg of the barricade, much of the leg is untouched by the shadow in the photograph, and plaintiff testified during her deposition that she did not recall seeing any shadows obscuring the legs of the barricade at the time of her fall. Consistent with” the court’s prior determinations, all the evidence indicated that she “was confronted with a ‘typical construction barricade’ when she tripped and fell,” and she did not “show how [it] may have constituted a ‘dangerous condition’ that posed an ‘unreasonable risk of harm’ in this case or how Consumers may have breached its duty to protect her from such[.]” The court also found “no colorable basis for disregarding the law-of-the-case doctrine here” and revisiting whether her “claim sounds in premises liability or ordinary negligence.” Affirmed.