Debra B Ford v. City of Marshall

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS DEBRA B. FORD, UNPUBLISHED June 20, 2025 Plaintiff-Appellant, 12:09 PM v No. 371805 Calhoun Circuit Court CITY OF MARSHALL, BAILEY EXCAVATING, LC No. 2020-000348-NO INC., LIBERTA CONSTRUCTION COMPANY, doing business as CIOFFI & SON CONSTRUCTION, and GIVE-EM A BRAKE SAFETY, LLC, Defendants, and CONSUMERS ENERGY COMPANY, Defendant-Appellee. Before: BOONSTRA, P.J., and REDFORD and MARIANI, JJ. PER CURIAM. Plaintiff, Debra B. Ford, appeals by right the trial court’s order granting defendant Consumers Energy Company’s (Consumers) renewed motion for summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact with the moving party entitled to judgment as a matter of law). We affirm. I. FACTUAL AND PROCEDURAL BACKGROUND After a full trip up and down the appellate ladder, this case now comes back before this Court for a third time. See Ford v City of Marshall, unpublished per curiam opinion of the Court of Appeals, issued January 13, 2022 (Docket No. 355541) (Ford I); Ford v City of Marshall, 513 Mich 913; 997 NW2d 213 (2023) (Ford II); Ford v City of Marshall, unpublished per curiam -1- opinion of the Court of Appeals, issued February 22, 2024 (Docket No. 355541) (Ford III). In Ford I, unpub op at 1-2, this Court described the relevant factual and procedural background as follows: At approximately 12:30 p.m. on May 23, 2019, plaintiff was walking on the sidewalk near a restaurant in Marshall, Michigan. At that time, the weather was clear. As plaintiff was walking, she was not looking at the ground. Eventually, plaintiff tripped over the leg of a construction barricade which caused her to fall forward and strike her right knee and face on the ground. The barricade sat parallel to a building that ran along the edge of the sidewalk such that the legs of the barricade protruded onto the sidewalk. Plaintiff did not see the legs of the barricade before she tripped, and she did not know whether she would have seen the legs of the barricade if she had been looking at the ground. Plaintiff acknowledged that the legs of the barricade were not concealed, and she did not recall seeing any shadows that obscured the legs of the barricade when she tripped and fell. A photograph taken by plaintiff’s husband shortly after plaintiff tripped and fell showed that a leg of the barricade was partially obscured by a shadow. According to an employee of Consumers, Consumers had been involved in an ongoing project in Marshall between March 2019 and July 2019. As part of the project, Consumers dug a trench that ran along the edge of the sidewalk in order to install a gas service line. On May 23, 2019, the trench had been filled with gravel, and the sidewalk was open for pedestrian use. At that time, Consumers was waiting for a third-party contractor to remove the gravel and fill the trench with concrete. A construction barricade that was initially used to “open and close” the sidewalk was situated on the gravel. Consumers was waiting for the barricade to be picked up by employees of the company from which Consumers rented the barricade. Plaintiff filed suit against Consumers seeking damages under theories of negligence and nuisance. Subsequently, Consumers filed a motion for summary disposition under MCR 2.116(C)(10). Consumers argued that plaintiff’s negligence claim actually sounded in premises liability and there was no genuine issue of material fact that the danger presented by the barricade was open and obvious, without special aspects that made the barricade unreasonably dangerous. Consumers also argued that plaintiff’s nuisance claim was simply a restatement of her premises liability claim, and in any case, there was no genuine issue of material fact that Consumers did not create either a private or public nuisance. The trial court held a hearing in which it denied the motion for summary disposition. In Ford I, this Court held that “[p]laintiff’s claim sounded in premises liability rather than ordinary negligence,” and further noted that Consumers did not did not dispute “that it posses