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Volume XXVI, No. 14, May 2, 2014    

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

From the Editor: Sarah Nadeau 

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Two Judges Of Michigan Court Of Appeals Suggest That The Open and Obvious Danger Doctrine Should Not Apply To Trips and Falls By Shoppers In Aisleways Of “Self-Service” Stores

CONTRIBUTOR – David Shafer

In Quinto v Woodward Detroit CVS, LLC, __ Mich App __ (4-29-2014), Michigan Court of Appeals Judges Michael Kelly and Douglas Shapiro suggest that the doctrine of open and obvious danger should not apply to trips and falls by shoppers in the aisleways of self-service stores, because those shoppers are usually looking at, or distracted by, the store’s displays and merchandise. The third appellate judge on the panel, Mark Cavanagh, wrote a separate opinion in which he disagrees with Judges Kelly and Shapiro.

In Quinto, the plaintiff was in the defendant CVS store when she tripped on a low platform located at the end of an aisleway. The platform was used to support heavy items such as stacks of cases of pop. The Macomb Circuit Court granted the store’s motion for summary disposition, holding that the store owed no duty to protect the plaintiff from the open and obvious danger posed by the platform. Then the plaintiff appealed.

The doctrine of open and obvious danger provides that a premises possessor, such as a store, is generally not required to protect an invitee from open and obvious dangers. Whether a danger is considered “open and obvious” is determined by whether an average user with ordinary intelligence would have been able to discover the danger and risk presented upon casual inspection.

Over the past few years, there have been many unpublished opinions of the Michigan Court of Appeals that support the proposition that claims of store shoppers who trip and fall over such things as pallets, display platforms, carts, and chains are subject to the doctrine of open and obvious danger, thereby (usually) rendering the store not liable for the shopper’s injuries. [For example, see Minehart v Kroger Co of Michigan, 2012 WL 639320 (Mich App unpubl op, 2-28-2012) (shopping cart bumper); LaFontaine v Big Lots Stores, Inc, 2011 WL 6757480 (Mich App unpubl op, 12-22-2011) (pallet); Maronek v Wal-Mart Stores, Inc, 2008 WL 1959255 (Mich App unpubl op, 5-6-2008) (pallet); Bruder v Home Depot USA, Inc, 2007 WL 3088545 (Mich App unpubl op, 10-23-2007) (cart); Snover v Menard, Inc, 2007 WL 1491293 (Mich App unpubl op, 5-22-2007) (display platform).] Since 2007, many of these unpublished appellate opinions have cited and relied on the published Court of Appeals opinion of Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich App 710 (3-20-2007), in which the Court of Appeals held that the hazard posed by a crushed grape on a grocery store’s floor was an open and obvious danger such that the store had no duty to warn a shopper of its existence.

In the newly released, published Quinto opinion of the Court of Appeals, however, Judges Kelly and Shapiro conclude that the 2007 Kennedy opinion of the Court of Appeals seems to conflict with the two earlier Supreme Court opinions of Clark v Kmart Corp, 465 Mich 416 (2001), and Jaworski v Great Scott Supermarkets, Inc, 403 Mich 689 (1972). According to Judges Kelly and Shapiro, those opinions suggest that “self-service store aisles present a fundamentally different circumstance than do other premises, in that the [self-service] store owner has purposely displayed merchandise” which serves to distract the attention of shoppers. According to Judges Kelly and Shapiro, the self-service store’s “purposeful action of displaying goods and advertisements in its aisleways create[s] a distraction away from the hazard,” so that the doctrine of open and obvious danger should not necessarily be applied to protect self-service stores from liability for injuries caused by open and obvious dangers. Judges Kelly and Shapiro acknowledged, however, that their view on this issue lies contrary to the earlier, published Kennedy opinion, which they are bound to follow as precedent by Michigan Court Rule 7.215(J)(1). Accordingly, in their Quinto opinion, Judges Kelly and Shapiro end up affirming the lower court’s order applying the doctrine of open and obvious danger to the plaintiff’s claim and dismissing the plaintiff’s lawsuit against the defendant store. But in doing so, they specifically request that a “special conflict panel” of Court of Appeals judges be assembled to rehear the Quinto appeal and resolve what they view as a conflict in the law regarding this issue.

In a separate opinion, Court of Appeals Judge Mark Cavanagh disagreed entirely with Judges Kelly and Shapiro, stating that he agreed with the analysis and holding in the 2007 Kennedy opinion, and that he therefore dissents from the conclusion that a special conflict panel should be convened. According to Judge Cavanagh, “self-service retail store owners owe the same duty of care as other premises owners” and “the mere possibility that customers might be distracted by the merchandise displays and advertisements commonly found in all self-service retail stores, alone, neither relieves customers of their duty to exercise reasonable care for their own safety nor imposes a unique duty on self-service retail store owners to protect customers from even open and obvious conditions that do not pose an unreasonable risk of harm.” According to Judge Cavanagh, “[i]n this case, plaintiff tripped over an open and obvious display platform located in an aisle of defendant’s store” which was a condition that “was discoverable by an average person upon casual inspection,” so that the doctrine of open and obvious danger was properly applied by the Macomb Circuit Court and the defendant store’s motion for summary disposition was properly granted.

The majority opinion of Judges Kelly and Shapiro, and Judge Cavanagh’s separate opinion in Quinto v Woodward Detroit CVS, LLC, __ Mich App __ (4-29-2014), are available at the following web links:

http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20140429_C311213_38_311213.OPN.PDF (Judges Kelly and Shapiro opinion)

http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20140429_C311213_39_311213D.OPN.PDF (Judge Cavanagh opinion).

 

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Garan Lucow Miller, P.C. is pleased to present a half day seminar covering both Indiana and Michigan law on  May 21, 2014,  at the Indianapolis Marriott Downtown, located at 350 W. Maryland Street, Indianapolis, IN 46225 (317) 822-3500.  Comprehensive written materials will be distributed to all seminar attendees.  The Agenda is as follows:

 

8:30 – 8:55 Continental Breakfast – Registration

 

8:55 – 9:00 Welcome and Introductions

David N. Campos

 

9:00 – 10:00 Michigan First-Party Automobile No-Fault (PIP) Update

Speaker: David N. Campos

 

10:00 – 10:30 Indiana First-Party Law Update

Speaker: Gregory M. Bokota

 

10:30 -10:45 Break

 

10:45 – 11:15 Tips on Handling Difficult Opposing Counsel

Speaker: John W. Whitman

 

11:15 – 11:45 Michigan Third-Party Automobile Negligence Update

Speaker: Adam K. Gordon

 

11:45 – 12:15 Indiana Third-Party Law Update

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12:15 – 12:30 Question and Answer Session

 

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