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March 12, 2020
When a plaintiff claims that his or her injury resulted from a dangerous condition on the defendant’s land, the claim is characterized as one of common-law “premises liability.”
In general, claims of common-law premises liability are based on such things as a plaintiff’s trip and fall on a pothole in a parking lot, or a slip and fall on a patch of ice or snow on a sidewalk or driveway, or a slip and fall on some liquid or an object on the floor of a store, or a plaintiff being struck by an object that fell from a shelf or wall.
When sued by a plaintiff for common-law premises liability, a defendant might rely on the defense of lack of notice (not knowing that the danger existed) or the defense of lack of possession and control (having loaned actual control of the property to another entity). But the doctrine of “open and obvious danger” is often the most immediate and successful way to end a plaintiff’s premises-liability lawsuit.
In Michigan appellate courts, the doctrine of open and obvious danger has blossomed in the past thirty years. The Michigan Supreme Court has issued a handful of important opinions defining the doctrine, and the Michigan Court of Appeals has issued many published opinions applying the doctrine, and it continues to issue at least one unpublished opinion applying the doctrine every month.
Over the years, Michigan appellate courts have emphasized that the doctrine of open and obvious danger is grounded in the public policy of encouraging people to exercise reasonable care for their own safety, and also in the facts that landowners are not insurers, are not charged with guaranteeing the safety of every person who comes onto their land, and have no obligation to make ordinary conditions foolproof.
Therefore, under the doctrine of open and obvious danger, Michigan courts have consistently held that the duty of a land possessor to exercise reasonable care on behalf of visitors (invitees) does not extend to open and obvious dangers. Under the doctrine, when dangers are known to the visitor or are so obvious that he or she might reasonably be expected to discover them, the land possessor owes no duty to protect or warn the visitor, unless harm to the visitor should nevertheless be anticipated despite the open and obvious nature of the dangers.
Michigan courts have recognized two narrow, so-called “special aspects” exceptions to the doctrine of open and obvious danger. Under these two exceptions, the land possessor can still be held liable in premises liability despite the plaintiff’s expected knowledge of the obviously dangerous condition when there exists (1) an unreasonably dangerous hazard that presents an extremely high risk of severe injury or death, or (2) an effectively unavoidable hazard that essentially traps the visitor and thereby compels him or her to confront the hazard. To give you a flavor of the kinds of lawsuits that this issue concerns, here is a list (in reverse chronological order) of fourteen opinions issued by courts in Michigan within approximately the past six months alone in which the plaintiffs’ claims of premises liability were summarily rejected on the basis of the doctrine of open and obvious danger:
1. Bazzi v Medley and City of Dearborn Heights, Mich Ct Apps unpubl op (2-25-2020); 2020 WL 908518 (trip on uneven sidewalk cement at 8:45 p.m. in November, where photos showed an apparent defect in the pavement that an average person could have observed)
2. Leszyczynski v The Home Depot USA, US ED Mich unpubl op (1-15-2020); 2020 WL 230274 ( slip and fall on red Slurpee spilled on store’s white floor in an unobstructed aisle, where plaintiff acknowledged seeing the spill after she fell to the ground)
3. Branch v D&S Property Mgt, LLC, Mich Ct Apps unpubl 2-1 op (12-26-2019); 2019 WL 7206105 (slip and fall on snow on sidewalk, and where plaintiff had alternative route to apartment)
4. Davis v Wal-Mart Stores East, LP, US ED Mich unpubl op (12-4-2019); 2019 WL 6528219 (slip and fall on unseen hangar on the floor in store while pushing a shopping cart, where plaintiff acknowledged that she would have seen the hangar if she had been looking at the floor)
5. Arvidson v Polly’s Food Svcs, Inc, Mich Ct Apps unpubl op (12-3-2019); 2019 WL 6519157 (slip on water puddle in store near ice freezer, where plaintiff acknowledged seeing the unobscured puddle after he fell, and surveillance video showed that everyone but plaintiff successfully avoided the hazard)
6. Rettman v Sanctuary At Marrian Place, Mich Ct Apps unpubl op (11-26-2019); 2019 WL 6340264 (slip on ice on apartment’s sidewalk at 8:30 p.m. in February, where plaintiff acknowledged he did not look down at the sidewalk when he was walking on it but that he saw the ice after he had fallen, and where there were three alternative routes to the apartment)
7. Wheeler v Busch’s Inc, Mich Ct Apps unpubl op (11-19-2019); 2019 WL 6173680 (slip on so-called black ice in parking lot at 10 a.m. in January where there were sufficient indicia in the area of a potentially hazardous condition, such as wet roads and mounds of snow surrounding the parking lot, and there were no unreasonably dangerous or unavoidable hazards shown). An application to the Michigan Supreme Court has been filed.
8. Wilson v The Kroger Co of Michigan, Mich Ct Apps unpubl op (10-10-2019); 2019 WL 5092918 (slip on red cherries on gray floor in Kroger grocery store, where plaintiff acknowledged seeing the cherries just as she was stepping on them)
9 Anderson v Seth Temple Church of God in Christ, Mich Ct Apps unpubl op (10-8-2019); 2019 WL 5061194 (trip on 3-inch leaf-covered hole in dirt adjacent to parking lot in October, where property was heavily covered with leaves, and where there was no uniquely high likelihood of severe harm from the hole and where plaintiff was not required or compelled to confront the hole)
10. Anderson v Morrisset, Mich Ct Apps unpubl op (10-1-2019); 2019 WL 4855889 (slip on oily or slippery puddle in driveway by plaintiff/mail carrier, and where plaintiff could have avoided walking into the puddle )
11. Nelson v Dart Properties II, LLC, Mich Ct Apps unpubl op (9-19-2019); 2019 WL 4565078 (slip on unseen patch of snow-covered ice on sidewalk at 9 p.m. in January, where sidewalk was not shown to be completely covered in ice and where plaintiff was aware of the snow and the wintry conditions, and where plaintiff could have walked around the patch of ice and no unreasonably dangerous condition presenting a substantial risk of severe injury or death was shown)
12. Buhl v City of Oak Park, __ Mich App __ (8-29-2019), maj op; 2019 WL 4126130 (trip on uneven sidewalk cement panels while stepping over a crack in the sidewalk near a store in May while it was raining, where plaintiff acknowledged that there was nothing obstructing her view and that she did not discern the differing heights between the sidewalk panels because she was looking at the nearby store rather than at the ground, and that she would have seen the condition if she had been looking down). An application to the Michigan Supreme Court has been filed.
13. Vagnetti v Wong, DDS, Mich Ct Apps unpubl op (8-20-2019); 2019 WL 3941445 (slip on so-called black ice on walkway outside defendant-dentist’s office in December, where there were sufficient indicia in the area of a potentially hazardous condition, such as the presence of snow in the area and the temperature being below freezing, and where there was no showing of an unreasonably dangerous or effectively unavoidable condition)
14. Smith v Woodward Detroit CVS, LLC, US ED Mich unpubl op (8-8-2019); 2019 WL 3753859, recon den 2019 WL 4463274 (trip on corner of blue base of display cart at end of aisle with gray floor in CVS store, where plaintiff acknowledged that maybe she would not have tripped over the corner of the cart if she had been looking at the ground in front of her, which she clearly saw after she fell, and where any danger of tripping and falling created by the cart did not rise to the level of a substantial risk of death or severe injury)
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Sarah Nadeau, Editor of The Garan Report Publication, is a Shareholder in our Detroit Office. Sarah can be reached at 313.446.1530 or firstname.lastname@example.org