Wrongful death; Premises liability; Open & obvious danger; Cornwell v Castaneda (Unpub); Motion for reconsideration/rehearing

The court held that all the conditions plaintiff-estate complained of “in its first amended complaint are conditions of the land, making those claims sound in premises liability.” It further held that they all were “easily observable, making them open and obvious and subject to no special aspects.” Thus, defendants were entitled to summary disposition. The court reversed the trial court order denying their summary disposition motion and the order denying their motion for rehearing/reconsideration of the order denying their summary disposition motion, and remanded for entry of summary disposition in defendants’ favor. Plaintiff’s allegations appeared to present a claim for premises liability. They concerned “the design of the parking lot and defendants’ failure to take specific cautionary measures to ensure the safety of customers when walking from the parking lot into defendants’ building, not on defendant’s ability to conform to a particular standard of care.” Defendants cited Cornwell in support of “their argument that the conditions complained of by plaintiff were open and obvious and that the trial court thus should have granted” them summary disposition. Although “Cornwell is not binding precedent (MCR 7.215(C)(1)), we find it particularly instructive in this matter where, for all practical purposes, the facts are substantially similar to those in Cornwell.” While plaintiff did not argue that any special aspects existed here, the court “would find that, for the reasons explained in Cornwell, there are no special aspects present.” As to the third count added in plaintiff’s second amended complaint, the court concluded the placement of the pallets at issue was open and obvious. Photos and video showed “that the pallets were placed directly against the wall and spanned nearly the entire front wall of the True Value building. The pallets were stacked more than knee high with items in large blue, white and clear bags and were observable upon casual inspection to an average user with ordinary intelligence. There is no claim otherwise, nor is there a viable claim borne out by the presented evidence, that the only way for a customer to enter the True Value store was to walk near the pallets.” In addition, the condition that directly caused harm to plaintiff’s decedent (Mihaltan) was the “vehicle that crashed into him—the pallets had nothing to do with the U-Haul crashing into Mihaltan.”