COA 372340 SARAH LAM V MEIJER INC Opinion - Per Curiam - Unpublished 12/19/2025

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
SARAH LAM,
Plaintiff-Appellant,
UNPUBLISHED
December 19, 2025
9:19 AM
v No. 372340
Wexford Circuit Court
MEIJER, INC., LC No. 2023-030844-NO
Defendant-Appellee,
and
JOHN DOE,
Defendant.
Before: O’BRIEN, P.J., and BOONSTRA and WALLACE, JJ.
WALLACE, J. (concurring in part and dissenting in part).
I concur with the majority opinion’s affirmance of the trial court’s grant of summary
disposition as to plaintiff’s claim of ordinary negligence, because this case sounds in premises
liability, not ordinary negligence.
Turning to plaintiff’s premises liability claim, the majority finds that defendant’s
placement of a yellow “caution wet floor” cone near the entrance to its bottle-return room alone
permits a finding that defendant did not breach its duty as a matter of law under the facts of this
case. Properly viewing the direct and circumstantial evidence in the light most favorable to the
non-movant, and likewise making all reasonable inferences in the non-movant’s favor, as this
Court must when conducting a de novo review of a motion for summary disposition pursuant to
MCR 2.116(C)(10), I do not agree with that conclusion. As a result, I respectfully dissent.
The majority opinion relies on statements of premises liability law from Estate of
Trueblood v P&G Apts, LLC, 327 Mich App 275, 285; 933 NW2d 732 (2019), and Hoffner v
Lanctoe, 492 Mich 450, 460; 821 NW2d 88 (2012), both of which predate the Michigan Supreme
Court’s decision in Kandil-Elsayed v F&E Oil, Inc, 512 Mich 95; 1 NW3d 44 (2023). Kandil-
Elsayed eliminated the common law “open and obvious doctrine and any exceptions to it under

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the element of duty,” and instead found that “the open and obvious nature of a danger—i.e.,
whether it is ‘reasonable to expect that an average person with ordinary intelligence would have
discovered it upon casual inspection[]’—is relevant to the defendant’s breach and the plaintiff’s
comparative fault.” Kandil-Elsayed, 512 Mich at 103-104, 144, 153 (internal citation omitted),
quoting Hoffner, 492 Mich at 461.
Because an ‘open and obvious’ analysis frequently includes an analysis of the
plaintiff’s own behavior—a failure to see a danger, appreciate a danger, or avoid a
danger—situating the doctrine in the breach/comparative-fault analysis will allow
the plaintiff’s potentially negligent response to an open and obvious danger to
reduce their damages, rather than cut off all recovery. [Kandil-Elsayed, 512 Mich
at 144.]
Kandil-Elsayed additionally overruled the special aspects doctrine for premises liability
claims that was the basis for the Hoffner decision. It held that, “[r]ather than conduct a narrow
analysis of whether an obvious danger is ‘effectively unavoidable’ or poses an ‘unreasonable risk
of severe harm,’ the fact-finder should consider whether ‘the possessor should anticipate the harm
despite such . . . obviousness,” and further made clear that “whether a land possessor should
anticipate harm from an otherwise open and obvious danger is a relevant inquiry under breach,
not duty.” Kandil-Elsayed, 512 Mich at 147-148, quoting 2 Restatement Torts, 2d, § 343A, p 218.
Notably, “the question whether the defendant owes an actionable legal duty to the plaintiff
is one of law which the court decides,”1 whereas “the question of breach—whether defendants’
conduct in the particular case is below the general standard of care—is a question of fact for the
jury.” Kandil-Elsayed, 512 Mich at 112 (quotation marks and citations omitted). Kandil-Elsayed
expressly overruled Lugo v Ameritech Corp, Inc, 464 Mich 512; 629 NW2d 384 (2001), and
returned to decades of precedent predating Lugo by “reaffirm[ing] the traditional duty owed to
invitees: the ‘duty to exercise reasonable care to protect [them] from an unreasonable risk of harm
caused by a dangerous condition of the land.’ ” Id. at 143 (second alteration in original), quoting
Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 499; 418 NW2d 381 (1988).
Kandil-Elsayed implicitly overruled the holding from Riddle v McLouth Steel Prods Corp,
440 Mich 85; 485 NW2d 676 (1992), that there is “no duty to warn of an open and obvious danger.”
Riddle, 440 Mich at 95-100. Again, whether a hazardous condition presents an open and obvious
danger is no longer tied to the plaintiff’s obligation to demonstrate defendant owed them a duty as
a matter of law. Rather, whether a defendant’s conduct (including any placement of signage or
other warnings or precautions) is a breach of their duty of reasonable care is a factual issue for the
jury’s determination, unless considering all the evidence (and the reasonable inferences to be
1 “Duty is a threshold question of law for the court to decide before a case can get to a jury.” Id.
at 133.

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drawn therefrom) in the non-movant’s favor, no reasonable jury could conclude the defendant
breached this general duty.2
[A]s has always been true, a land possessor need only exercise reasonable care
under the circumstances. As part of the breach inquiry, the fact-finder may
consider, among other things, whether the condition was open and obvious and
whether, despite its open and obvious nature, the land possessor should have
anticipated harm to the invitee. If breach is shown, as well as causation and harm,
then the jury should consider the plaintiff’s comparative fault and reduce the
plaintiff’s damages accordingly. A determination of the plaintiff’s comparative
fault may also require consideration of the open and obvious nature of the hazard
and the plaintiff’s choice to confront it. [Kandil-Elsayed, 512 Mich at 148-149.]
[I]n practice, the plaintiff’s own account of their response to the danger is a key
piece of evidence used by courts to determine whether, objectively, a danger was
open and obvious. And this makes good sense. An actual person’s response to a
danger, in most cases, will be relevant to what a reasonable person might perceive
about a danger. [Id. at 144-145.]
Turning to the facts of the present case, I would find that whether the yellow “caution wet
floor” cone near the entrance to the bottle-return room is sufficient to fulfill defendant’s duty of
reasonable care, in light of the totality of the circumstances presented here, presents a question of
fact for the jury’s resolution.
The majority opinion contends that the yellow warning cone “plainly alerted anyone
entering the bottle-return area that the area’s floor was wet and posed a slipping hazard,” and
“plaintiff fails to adequately explain why [that warning] . . . did not have the legal effect of warning
plaintiff about the dangerous condition.” I respectfully disagree because, in my opinion, that
analysis does not consider the adequacy or sufficiency of that warning or precaution as to the
specific hazard that plaintiff encountered in the light most favorable to plaintiff.
Included in the analysis of whether defendant breached a duty is whether the
condition was open and obvious. The consideration of defendant’s precautions and
the analysis of the open and obvious nature of the condition go hand-in-hand, as
the precautions were aimed at increasing the visibility of the step. [Huss v Albert
Chevrolet, Inc, unpublished opinion per curiam of the Court of Appeals, issued
December 9, 2024 (Docket No. 368428), p 6.3]
2 MCR 2.116(G)(5); Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999); Downey v
Charlevoix Co Bd of Road Comm’rs, 227 Mich App 621, 626; 576 NW2d 712 (1998); Bergen v
Baker, 264 Mich App 376, 387; 691 NW2d 770, 777 (2004).
3 “Although MCR 7.215(C)(1) provides that unpublished opinions are not binding under the rule
of stare decisis, a court may nonetheless consider such opinions for their instructive or persuasive

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Likewise, here the placement of the yellow “caution wet floor” cone near the entrance to the bottle-
return room is aimed at increasing invitees’ awareness and thus the visibility of potential wet floor
conditions in that room.
In this case, plaintiff offered evidence (and argument based thereon) as to why such
warning was inadequate and insufficient to establish that no reasonable jury could conclude the
defendant breached its general “duty to exercise reasonable care to protect [invitees] from an
unreasonable risk of harm caused by a dangerous condition of the land.” Id. at 143 (quotation
marks and citation omitted). Plaintiff notes that the bottle-return room surveillance video depicts
an employee of defendant who previously mopped up fluid that had leaked onto the floor in front
of the bottle-return machines approximately 25 minutes before her fall. At his deposition, that
employee testified that, just seconds before plaintiff’s fall, he walked through the bottle-return
room, grabbed a cart to clear it out of the area, noted the accumulation of additional fluid in that
area of the floor at that time, and indicated his intent to again take care of it upon returning from
removing the cart—thereby acknowledging the dangerous condition that needed to be addressed.
Thus, instead of actually remedying the dangerous condition, the employee continued to wheel the
cart out of the room. Further, he acknowledged that he provided no warning to plaintiff, who was
using a bottle-return machine in the immediate vicinity of that imminent danger, at that time. This
employee also testified (and the surveillance video confirms) that the yellow warning cone was
not placed in the immediate vicinity of the area in front of the bottle-return machines where the
fluid was continuously accumulating and seeping toward the center of the room, but rather, near
the entrance of the room, many feet away. This made the yellow warning cone more of a general
warning that the floor could be wet in the room rather than a specific warning as to a specific
puddle of fluid adjacent to the specific area where plaintiff was standing. The employee claimed
the yellow warning cone was placed there to allow people to navigate their carts towards the
machine, but that “ideally” he would have the cone placed near to where the floor actually got wet,
i.e., such placement would be more adequate and effective in providing invitees with a warning
regarding the ongoing hazardous condition.
Plaintiff testified during her deposition that she had not previously seen liquid on the floor
in previous use of that store’s bottle-return room and likewise did not see any fluid accumulation
on the floor the day of her fall, until after she was writhing in pain on the floor. She also noted
that the yellow warning cone was not anywhere near the liquid she slipped on and that “it really
should have been right on the puddle of liquid.” She further testified that she was walking
carefully, paying attention, looking where she was going, and being alert while walking in the
bottle-return room, but that she nonetheless did not observe the puddle of fluid that she slipped on
until after she fell (such that it was not to be seen upon casual inspection).
Plaintiff acknowledged that she saw the caution sign near the entrance when she entered,
and testified that she interpreted the sign to mean “to be cautious” and “to walk slowly” and “pay
attention.” Plaintiff also said that it was “common sense” that “you need to be careful” in a bottle-
return area because “there could be liquid” on the ground. She testified that she acted accordingly
value.” Kennard v Liberty Mut Ins Co, 341 Mich App 47, 53 n 2; 988 NW2d 797 (2022) (quotation
marks and citation omitted).

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and was careful to watch for and avoid stepping into wet spots on the floor, but that she nonetheless
did not see any accumulation of fluid on the ground prior to her fall.
The majority opinion asserts that “a plaintiff can almost always argue that a land possessor
could do more to warn about a hazardous condition on the land, which is presumably why that is
generally not the relevant inquiry.” It then quotes the Michigan Supreme Court decision in Hoffner,
that, again, addressed the special aspects doctrine for premises liability claims that Kandil-Elsayed
overruled: “Perfection is neither practicable nor required by the law,” and courts cannot impose a
requirement on a landowner “to make ordinary [conditions] foolproof.” Hoffner, 492 Mich at 460
(quotation marks and citation omitted) (alteration in original).4
But, in light of Kandil-Elsayed, the adequacy or sufficiency of any warning or precaution
and whether other actions or precautions were readily available and appropriate in light of the
dangerous condition presented is evaluated in the totality of the circumstances in determining
whether there is an issue of material fact as to the element of breach. Kandil-Elsayed, 512 Mich
at 148. Further, finding an issue of material fact for the jury’s consideration as to the element of
breach in light of this evaluation does not amount to demanding perfection or that the conditions
of the premises be foolproof. Defendants owe this duty to plaintiff regardless of plaintiff’s
knowledge of the hazard by way of a warning or other precaution (such as the yellow warning
4 Hoffner held that an icy sidewalk at the sole entrance to a gym was not a special aspect of the
condition that imposed an obligation on the premises possessor to remedy the condition despite its
open and obvious nature, meaning that the possessor did not owe any duty to the plaintiff in that
case. The decision in Kandil-Elsayed implicitly overruled the holding in Hoffner (that the special
aspects doctrine, as an exception to the open and obvious doctrine, was inapplicable on its facts).
Despite that implicit overruling, the Court indicated that it still agreed with Hoffner regarding two
principles (1) the preexisting common law principle that landowners are not insurers; and (2) that
the doctrine of comparative negligence requires both landowners, and those who come upon the
land, to exercise reasonable care. More specifically, the Court noted that, “[w]e agree with the
notion that ‘landowners are not insurers.’” Kandil El-Sayed, 512 Mich at 147, quoting Hoffner,
492 Mich at 459,. That common law principle was already a fundamental rule in Michigan more
than 80 years ago. Bradley v Burdick Hotel Co, 306 Mich 600, 604; 11 NW2d 257 (1943) (“While
it is a fundamental rule needing no citations that the one in lawful control of premises is not an
insurer of the safety of an invitee . . .”) The Court also agreed that “ ‘both the possessors of land
and those who come onto it’ must ‘exercise common sense and prudent judgment when
confronting hazards on the land.’ ” Kandil El-Sayed, 512 Mich at 147, quoting Hoffner, 492 Mich
at 459. The Court went on to hold that “[w]hile the open and obvious nature of a condition,
assessed by asking whether ‘it is reasonable to expect that an average person with ordinary
intelligence would have discovered [the dangerous condition] upon causal [sic: casual] inspection,’
remains relevant, it is a question of breach and comparative fault, not duty.” Kandil-Elsayed, 512
Mich at 153 (second alteration in original), quoting Hoffner, 492 Mich at 461. Thus, to the extent
that Hoffner remains good law, it appears to be limited to recitations of preexisting common law
that were not overruled by Kandil El-Sayed and the issue of comparative negligence. Id. at 147,
153.

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cone at the entrance to the bottle-return room) or whether the condition was open and obvious
upon casual inspection. Again, the issue of whether defendant breached that duty is a question of
fact unless no reasonable jury could conclude that defendant breached that general duty when
viewing the evidence in the light most favorable to the nonmovant. Could a reasonable jury find
that, when the employee was confronted with the puddle of fluid on the floor, he breached the duty
to protect invitees from that dangerous conditions when he failed to clean up the puddle and,
instead, continued to remove a cart from the room? Yes, I believe a reasonable jury could certainly
make that finding because it is consistent with Kandil-Elsayed and the decades of precedent
predating Lugo, upon which Kandil Elsayed relies. Could a reasonable jury find that, when the
employee was confronted with the puddle, it was not reasonable for the employee to fail warn
plaintiff, or anyone else standing close by, about that specific puddle of liquid in the vicinity? Yes,
a reasonable juror could likewise make that finding because it is also consistent with current
Michigan law, as described herein. Considering the facts of this case, a jury should determine
whether defendant exercised reasonable care to protect plaintiff from “an unreasonable risk of
harm caused by a dangerous condition of the land” and, if not, the jury should likewise evaluate
what percentage of comparative negligence, if any, should be attributed to plaintiff. Kandil-
Elsayed, 512 Mich at 143 (quotations marks and citation omitted).
For the foregoing reasons, while I concur with the majority’s decision to affirm the grant
of summary disposition to defendant as it pertains to plaintiff’s claim of ordinary negligence, I
respectfully dissent from the majority’s decision to affirm the trial court’s grant of summary
disposition regarding plaintiff’s premises liability claim pursuant to MCR 2.116(C)(10) and would
instead reverse and remand for further proceedings on that claim.
/s/ Randy J. Wallace

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