Amber Wenzel v. Phillip Tremonti; Krista Tremonti

NOT RECOMMENDED FOR PUBLICATION
File Name: 23a0517n.06
No. 23-1128
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
AMBER WENZEL,
Plaintiff-Appellant
v.
PHILLIP TREMONTI; KRISTA TREMONTI,
Defendants-Appellees
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF MICHIGAN
OPINION
Before: SUTTON, Chief Judge; WHITE and BUSH, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Plaintiff-Appellant Amber Wenzel appeals the
grant of summary judgment to Defendants-Appellees Phillip and Krista Tremonti in this
negligence case arising from Wenzel’s fall from a zipline on the Tremontis’ property. We
VACATE and REMAND to allow the district court to reconsider all the issues presented in light
of the Michigan Supreme Court’s recent decision in Kandil-Elsayed v. F & E Oil, Inc., Nos.
162907/163430, 2023 WL 4845611 (Mich. July 28, 2023).
Wenzel and her friends rented a vacation home from the Tremontis. The Tremontis, who
lived next door, invited Wenzel and her friends to use a homemade zipline located on the
Tremontis’ residence. Phillip Tremonti had installed the zipline without a harness, so riders had
to support themselves by gripping a handlebar as they rode down the zipline. According to
Wenzel, although Phillip knew Wenzel could hold on for only four seconds, he told her she would

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No. 23-1158, Wenzel v. Tremonti
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be fine, so she rode the zipline. However, partway down the zipline, Wenzel lost her grip and fell,
breaking her ankle.
Wenzel filed this action against the Tremontis, bringing negligence and premises-liability
claims. At the time, Michigan law held that landowners owed “‘no duty to protect or warn’ of
dangers that are open and obvious because such dangers, by their nature, apprise an invitee of the
potential hazard, which the invitee may then take reasonable measures to avoid.” Hoffner v.
Lanctoe, 821 N.W.2d 88, 94 (Mich. 2012) (quoting Riddle v. McLouth Steel Prod. Corp., 485
N.W.2d 676, 681 (Mich. 1992)). The district court dismissed Wenzel’s claims under this “open
and obvious” doctrine, finding that the Tremontis owed her no duty.
However, the Michigan Supreme Court significantly altered the applicable premises-
liability framework in Kandil-Elsayed v. F & E Oil, Inc. Kandil-Elsayed held that (1) “the open
and obvious nature of a condition” is not an element of duty; but instead “is relevant to breach and
the parties’ comparative fault”; and (2) “when a land possessor should anticipate the harm that
results from an open and obvious condition, despite its obviousness, the possessor is not relieved
of the duty of reasonable care.” Id. at *4.
Because Kandil-Elsayed sets out a drastic shift in the framework for analyzing premises
liability in Michigan, and the district court has not had the opportunity to evaluate the claims and
defenses in light of it, we VACATE the grant of summary judgment and REMAND for
reconsideration of all the claims in light of Kandil-Elsayed.

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