Trip & fall on a step; Premises liability; Kandil-Elsayed v F&E Oil, Inc; Duty; Breach; Failure to warn; Dangerous condition; Blackwell v Franchi; Hilton v Barrington Group (Unpub)

Concluding there were genuine issues of material fact as to “(1) the visibility, or lack thereof, of the change in floor level; and (2) whether defendant exercised reasonable care to protect invitees from an unreasonable risk of harm[,]” the court reversed summary disposition for defendant. Plaintiff “fell while she was walking from a reception area to the service area at defendant’s automobile dealership when she tripped on a 4-inch step[.]” The court noted that because she relied on a failure to warn theory, “plaintiff need not establish that the step was defective or in disrepair.” It further noted that while whether “the condition was ‘unreasonably dangerous’ is no longer a relevant consideration,” she still had to show “that there was a ‘dangerous condition.’” There is case law indicating “that a non-visible step could be considered a dangerous condition.” The court determined that a question of fact existed “as to whether the step constituted a dangerous condition.” As to whether defendant exercised reasonable care, it was “undisputed that the room was well lit and that the edge of the step was painted yellow. Although those actions establish that defendant made some attempt to protect invitees, such an attempt is not necessarily sufficient to provide the requisite level of protection. In fact, there is evidence to suggest that those actions were insufficient. Plaintiff testified that she saw the yellow line, but interpreted it as providing a ‘traffic guide,’ not as indicating that there was a drop-off. Relatedly, [her] expert observed that a yellow line is primarily used to mark an aisleway or traffic lane, and there is no dispute that cars were driven on the service-area side of the yellow line. Moreover, there was evidence that plaintiff was not the first person to fall in that area.” And a photo she submitted “lent support to plaintiff’s argument that the floor appeared to be the same level on both sides of the yellow line.” Given that there was “a genuine issue of material fact whether defendant exercised reasonable care to protect invitees from an unreasonable risk of harm, there is a genuine issue of material fact as to whether the danger was open and obvious.” Further, the evidence that others “had fallen on the step can support plaintiff’s claim that defendant should have anticipated harm to its invitees, which further establishes that remaining questions of fact render summary disposition inappropriate.” Remanded.