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Volume XXVII, No. 32, December 7, 2015        

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

From the Editor: Sarah Nadeau

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MICHIGAN SUPREME COURT REVERSES THE COURT OF APPEALS AND HOLDS THAT THE
DEFENDANTS IN TWO SLIP-AND-FALL CASES ARE ENTITLED TO SUMMARY DISPOSITION
UNDER THE DOCTRINE OF OPEN AND OBVIOUS DANGER

By David M. Shafer

The doctrine of open and obvious danger is often raised by a landowner sued by a plaintiff who slipped or tripped and fell on the landowner’s property.  The doctrine provides that a landowner has no duty to protect a plaintiff from dangers on the land that are open and obvious.

This doctrine is a common-law doctrine, meaning that it was created in judicial opinions of the Michigan Supreme Court and Court of Appeals, and was not created in a statute by the Legislature.  There are a few exceptions to the doctrine, and they, too, were created by the appellate courts.  Thus, the doctrine does not apply if the plaintiff’s claim of liability against the landowner sounds in “general negligence,” and not in “premises liability.”  A claim sounds in general negligence if it arises from “conduct” performed on the land, whereas a claim sounds in premises liability if it arises from a dangerous “condition” of the land.  Moreover, the doctrine does not apply if something on the property “distracts” the plaintiff from appreciating the otherwise open and obvious danger.  Another exception is that the doctrine does not apply if the open and obvious danger is “effectively unavoidable.”  Yet another exception is that the doctrine does not apply if the danger remains “unreasonably dangerous” despite its obviousness.

In two orders issued on November 25, 2015, the Michigan Supreme Court peremptorily reversed two opinions of the Court of Appeals and held that the landowners in each of those cases were entitled to the dismissal of the plaintiffs’ lawsuits against them because, under the doctrine of open and obvious danger, they could not be held liable for the plaintiffs’ slip- or trip-and-fall injuries.

In the case of Michele Compau v Whittemore Inn, et al, the plaintiff Michele Compau tripped on a railroad tie that was being used as a car-parking block on land owned by the defendant Whittemore Inn.  She was a business invitee on the land and was watching lawn mower races sponsored by the defendant on its property.  When one of the racers lost control of his lawn mower and plowed into the thin plastic fence that separated the racers from the surrounding spectators, the plaintiff (and all other spectators in the immediate area) instinctively stepped backward.  In doing so, she fell down and injured her wrist, which thereafter requiring five surgeries.  The Iosco Circuit Court granted the defendant’s motion for summary disposition, but the Court of Appeals reversed.  According to the Court of Appeals, the plaintiff’s claim sounded in general negligence, so that the doctrine of open and obvious danger did not apply.   (Remember, the doctrine applies to claims sounding in premise liability, but not to claims sounding in general negligence.)  But the Supreme Court reversed the Court of Appeals and reinstated the order of the circuit court granting summary disposition to the defendant landowner.  The Supreme Court, in a 6-1, one-paragraph peremptory order, stated that the plaintiff’s claim “sounds in premises liability rather than ordinary negligence,” and that the dangerous condition on the land (the railroad tie) was open and obvious.  Furthermore, the Supreme Court declared that the lawn mower races were not “so distracting as to preclude application of the open and obvious danger doctrine.”

In the case of Starr Stimpson v GFI Management Services, Inc, et al, the plaintiff Starr Stimpson slipped and fell on snow and ice in her apartment building’s parking lot while carrying her “elderly, disabled dog” to the apartment’s designated dog run, so that the dog could relieve itself there.  According to the plaintiff, she knew about the snow and ice in the parking lot, but because she had to transport her dog to the designated dog-run area, she “had no choice but to confront the hazard.”  According to the plaintiff, the defendant prohibited tenants from allowing their dogs to walk in the common areas of the apartment complex.   The Oakland Circuit Court granted the defendant’s motion for summary disposition, but the Court of Appeals reversed.  According to the Court of Appeals, a question of fact existed for a jury to determine regarding whether the slip-and-fall hazard was “effectively unavoidable” under the exception to the doctrine of open and obvious danger.  The Court of Appeals stressed that the plaintiff “had no choice but to confront the hazard,” since she was required to transport her disabled dog to the designated dog-run area.  But the Supreme Court, in a unanimous (7-0), one-paragraph peremptory order, stated that the hazard was not “effectively unavoidable,” because it was not “inescapable.”  The Supreme Court emphasized that the plaintiff did not even attempt to place salt that was near her apartment door on the snow and ice before walking on it.

The Court of Appeals opinion and the Supreme Court’s peremptory order in the case of Michele Compau v Whittemore Inn, et al, are available at the following Internet web links:

http://publicdocs.courts.mi.gov:81/opinions/final/coa/20150416_c320615_28_320615.opn.pdf  (majority opinion of Court of Appeals)

http://publicdocs.courts.mi.gov:81/opinions/final/coa/20150416_c320615_29_320615d.opn.pdf  (dissenting opinion of Court of Appeals)

http://publicdocs.courts.mi.gov:81/sct/public/orders/20151125_s151618_35_01_151618_2015-11-25_or.pdf  (6-1 peremptory order of Supreme Court)

It is noted that in the Iosco Circuit Court, the defendant landowner in the Michele Compau v Whittemore Inn case was represented by attorney Peter B. Worden, Jr., of Garan Lucow Miller’s Traverse City office, and in the Court of Appeals and Supreme Court by attorney David M. Shafer of Garan Lucow Miller’s Detroit office.

The Court of Appeals opinion and the Supreme Court’s peremptory order in the case of Starr Stimpson v GFI Management Services, Inc, et al, are available at the following Internet web links:

http://publicdocs.courts.mi.gov:81/opinions/final/coa/20150224_c319165_45_319165.opn.pdf  (unanimous opinion of Court of Appeals)

http://publicdocs.courts.mi.gov:81/sct/public/orders/20151125_s151368_51_01_151368_2015-11-25_or.pdf  (unanimous peremptory order of Supreme Court)