Volume XXIX, No. 1, January 24, 2017

From the Law Offices of Garan Lucow Miller, P.C.

From the Editor: Sarah Nadeau



 By Sarah Nadeau

Much has been happening in the area of Premises Liability, with actions being taken by the Legislature to expand the application of the open and obvious danger doctrine to use by a municipality, and decisions being issued by the Michigan Courts, including a Michigan Supreme Court decision which all but settles the question of whether a premises owner owes a duty to inspect its premises.  Please allow the following to provide a brief overview of some of the recent highlights in this area of the law.

House Bill 4686 Became Public Act 419 of 2016
Allowing Municipalities To Assert
The Open And Obvious Danger Doctrine

During the Legislature’s December lame-duck session, Governor Rick Snyder signed into law Public Act 419, which allows municipalities to assert the open and obvious danger doctrine as a defense to premises liability claims.

The Michigan Supreme Court in Hoffner v Lanctoe, 492 Mich 450 (2012) provided a good overview of the open and obvious danger doctrine in the context of a private landowner, noting that with regard to invitees, a landowner owes a duty to use reasonable care to protect invitees from unreasonable risks of harm posed by dangerous conditions on the owner’s land. Michigan law provides liability for a breach of this duty of ordinary care when the premises possessor knows or should know of a dangerous condition on the premises of which the invitee is unaware and fails to fix the defect, guard against the defect, or warn the invitee of the defect.

The Hoffner Court noted, however, that perfection is neither practicable nor required by the law, and therefore an integral component of the duty owed to an invitee considers whether a defect is “open and obvious.” The possessor of land owes 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. Whether a danger is open and obvious depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection. This is an objective standard, calling for an examination of the objective nature of the condition of the premises at issue.

A limited exception to the circumscribed duty owed for open and obvious hazards has been carved out by the Courts, such that liability for a landowner may arise when special aspects of a condition make even an open and obvious risk unreasonable. When such special aspects exist, a premises possessor must take reasonable steps to protect an invitee from that unreasonable risk of harm.  In general, there are two special aspects that should be considered:  (1)  whether a danger is unreasonably dangerous, or (2) whether a danger is effectively unavoidable.

In light of the Legislature’s recent action, municipalities will be able to assert the open and obvious danger doctrine as a defense to premises liability claims and may be found to owe no duty at all if the condition was open and obvious, and no special aspects of the condition could be proven to exist.

The Michigan Supreme Court Re-Affirms That A Landowner Does Not Need To Present
Evidence Of A Routine Or Reasonable Inspection To Prove A Lack Of Notice

In Lowrey v LMPS & LMPJ, Inc, 2016 Mich Lexis 2579 (December 13, 2016), a unanimous Michigan Supreme Court took action on an Application for Leave to Appeal, reversing the Court of Appeals and reinstating the Circuit Court’s granting of defendant landowner’s motion for summary disposition on the issue of notice, and vacating the remainder of the Court of Appeals’ opinion.  This case addresses another aspect of premises liability – whether a landowner has actual or constructive notice of a condition on its premises – rather than whether that condition is open and obvious.

In Lowrey, plaintiff Krystal Lowrey went with friends to Woody’s Diner (defendant) for drinks to celebrate St. Patrick’s Day. It was a snowy night, and while exiting the diner, she fell on the stairs and injured herself. She brought a premises liability action, and the Circuit Court granted summary disposition in defendant’s favor. The Court of Appeals subsequently reversed, however, concluding that defendant had failed to establish that it lacked notice of the hazardous condition alleged in the complaint, reasoning that defendant had not presented evidence of what a reasonable inspection would have entailed under the circumstances.

The Michigan Supreme Court found, in essence, that for plaintiff to prevail on her premises liability claim, she had to carry the burden of establishing that defendant, as a premises owner, possessed actual or constructive notice of the dangerous condition. Citing Carpenter v Herpolsheimer’s Co, 278 Mich 697, 698; 271 NW 575 (1937), the Lowrey Court noted the general test to determine whether a landowner might be liable for lack of notice of a condition:

The proprietor is liable for injury resulting from an unsafe condition caused by the active negligence of himself and  his employees; and he is liable when the unsafe condition, otherwise caused, is known to the storekeeper or is of such a character or has existed a sufficient length of time that he should have knowledge of it.

Therefore, the Lowrey Court held that in order to show notice, plaintiff had to demonstrate that defendant knew about the alleged water on the stairs or should have known of it because of its character or the duration of its presence.  The Court concluded that in order to obtain summary disposition under MCR 2.116(C)(10), defendant was not required to present proof that it lacked notice of the hazardous condition, but needed only to show that plaintiff presented insufficient proof to establish the notice element of her claim.  The Court concluded that defendant met its burden because plaintiff failed to establish a question of fact as to whether defendant had notice of the hazardous condition.

Water Discharged From A Downspout, Resulting In Ice Upon Which Plaintiff Fell,
Does Not Constitute A Breach Of A Landowner’s Duty To Maintain

In an recent unpublished, and therefore non-binding, decision of the Court of Appeals, Alioto v Richard Astrein, et al (COA No. 329646), the Court of Appeals addressed whether defendant landowners breached a duty to plaintiff because water discharged from a drainspout on defendants’ premises flowed into a public street and ultimately froze, resulting in plaintiff slipping and falling and suffering injuries.  The Court of Appeals determined that because the patch of ice upon which plaintiff fell was open and obvious as a matter of law, and no special aspects of that ice existed, defendants, as the owners of the building and downspout that directed the water into the public street, did not breach any duty they may have owed to plaintiff to maintain their premises.





Garan Lucow Miller would like to introduce our newest attorney, Lisa Screen,
who has joined the Firm in our Detroit office.