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Powell v. Pippin11/26/2002
UNPUBLISHED
Plaintiff Deborah Powell appeals by right a grant of summary disposition in favor of defendants Linda Pippin and Donald Dierolf pursuant to MCR 2.116(C)(10). We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
This personal injury claim involves a trip and fall that occurred on October 18, 1998. Plaintiff sought to inspect one unit of a duplex owned by defendants for possible rental and went to the home. Defendants were business partners who owned the home, but did not reside in it. Plaintiff injured her ankle when she placed her foot in a depression, caused by an unevenness in the driveway, as she walked from her car toward the garage, where defendant Pippin was motioning her to enter the house. During her deposition, Pippin did not dispute plaintiff's version of the events leading up to the accident, but added that she had told plaintiff to be careful when plaintiff got out of her car. The trial court granted defendants' motion for summary disposition after finding that the danger posed by the driveway defect was open and obvious.
Plaintiff argues that the trial court erred as a matter of law in determining that the crack in the driveway was open and obvious. A motion for summary disposition under MCR 2.116(C)(10) tests whether there is factual support for a claim, and is reviewed de novo. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available, Id., and all inferences are drawn in favor of the non-movant, Skinner v Square D Co, 445 Mich 153, 160; 516 NW2d 475 (1994).
The duty a possessor of land owes to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm does not generally encompass removal of open and obvious dangers. Perkoviq v Delcore Homes-Lake Shore Pointe, Ltd, 466 Mich 11, 16; 643 NW2d 212 (2002); Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001).
Plaintiff first argues that reasonable minds could differ as to whether the danger in the instant case was, in fact, open and obvious. We disagree. "Whether a danger is open and obvious depends on whether it is reasonable to expect an average user of ordinary intelligence to discover any danger upon casual inspection." Weakley v Dearborn Hgts, 240 Mich App 382, 385; 612 NW2d 428 (2000).
After examining the photographs provided by the parties and the testimony presented below, we conclude that a reasonable jury could not differ as to whether the danger posed by the two inch crack in the sidewalk could have been detected by one with ordinary intelligence upon a casual inspection. The accident happened at approximately 2:00 p.m. on a sunny day. According to plaintiff, the crack extended the whole width of the driveway slab and represented a height difference of approximately two inches between the adjoining sections of pavement. Both plaintiff and defendant have presented photographic representations of the driveway imperfection upon which plaintiff tripped. Although the vantage points of the photographs presented are not optimal, upon casual inspection, an individual with average intelligence could clearly see the crack, and its danger, from either side upon approach.
In support of her claim, plaintiff cites to the fact that defendant Pippin stated that she warned plaintiff because she was concerned that plaintiff could not see the crack. However, when asked whether she thought that the crack was a dangerous condition, Pippin replied that it posed a danger "if you wasn't watching where you were going." Plaintiff admitted that there wa
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