January 01, 2017
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.
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