Trip & fall on a step; Premises liability; Kandil-Elsayed v F& E Oil, Inc; Duty owed to an invitee; Tripp v Baker; Breach; The law of the case doctrine

The court held that the trial court erred by granting defendant summary disposition of plaintiff’s trip and fall claim. Plaintiff sued defendant for injuries she sustained when she tripped and fell on a three-inch step that separated the sidewalk from a red-tiled piazza at the front of defendant’s shop. The trial court granted summary disposition, and the court affirmed in a prior appeal. The Michigan Supreme Court vacated and remanded in light of Kandil-Elsayed. On remand, the court vacated the trial court’s ruling and remanded to that court, which again granted summary disposition for defendant. In the present appeal, the court agreed with plaintiff that the trial court erred because a genuine issue of material fact existed as to whether defendant breached its duty to her. As a preliminary matter, the court noted that the trial court’s statement, on remand, that the court and the Supeme Court did not alter its “earlier ruling on whether the step was open and obvious[,]” did not implicate the law of the case doctrine. Turning to the merits, it noted that “although defendant argues that the step was not a dangerous condition on the land, and therefore no duty was owed, there was no dispute that patrons of defendant’s establishment would encounter the step upon entering and exiting, and that they would have to navigate it by stepping up or down. The step was therefore an obstruction on the ground that could be encountered and tripped over by an invitee.” As such, “defendant owed her a duty to use reasonable care to protect her from an unreasonable risk of harm caused by the step.” And there was a material question of fact whether it breached this duty. “Plaintiff and other witnesses testified that the area with the step was poorly lit at the time plaintiff encountered it.” In addition, “two witnesses testified that although the top of the step was a different color than the surrounding cement, the vertical portion of the step was not, obscuring the change in elevation between the sidewalk and the step.” And one witness “testified that he observed two other persons trip on the step in an approximately 20-minute span shortly after plaintiff fell.” Further, plaintiff “and other witnesses testified that the photographs of the step, taken with a flash, did not accurately represent how they viewed it with the naked eye on the night in question.” Reversed and remanded.