It has long been the case in Michigan that a premises possessor does not owe a duty to protect invitees who come onto their land from dangerous conditions which are open and obvious. A condition is open and obvious if “an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection.” Novotney v Burger King Corp, 198 Mich App 470, 475; 499 NW2d 379 (1993).
In Lugo v Ameritech Corp, Inc, 464 Mich 512; 629 NW2d 384 (2001), the Michigan Supreme Court held that even where a condition is open and obvious, a premises possessor may still be liable to an invitee where there are “special aspects” about the condition which present an unreasonable risk of harm. Id. at 517. The Lugo Court described two classes of “special aspects” which present an unreasonable risk of harm, such that the premises possessor may still be liable, even when the condition is open and obvious. Those special aspects are: (1) when the danger is unreasonably dangerous; or (2) when the danger is effectively unavoidable. Id. at 463. An open and obvious danger is effectively unavoidable when an individual, “for all practical purposes, must be required or compelled to confront a dangerous hazard.” Hoffner v Lanctoe, 492 Mich 450, 469; 821 NW2d 88 (2012). “As a parallel conclusion, situations in which a person has a choice whether to confront a hazard cannot truly be unavoidable, or even effectively so.” Id. Since Lugo and Hoffner, and until recently, these exceptions have been narrowly construed.
However, recent decisions from the Michigan Court of Appeals and Michigan Supreme Court have significantly expanded the scope of the “effectively unavoidable” exception to the open and obvious doctrine. For example, in Estate of Livings v Sage’s Investment Group, LLC, 507 Mich 328 (2021), the Michigan Supreme Court held that “[A]n open and obvious condition can be deemed effectively unavoidable when a plaintiff must confront it to enter his or her place of employment for work purposes.” Id. at 333. Building on the Livings decision, the Michigan Court of Appeals held in Bowman v Walker, ___ Mich App ___; ___ NW2d ___ (2022); slip op at 1 that “the same principles [from Livings] apply to a tenant injured while encountering a hazard when leaving his or her place of residence in order to travel to work.” Id. at 5.
The most recent expansion of the “effectively unavoidable” exception to the open and obvious doctrine comes from the Michigan Court of Appeals in the published decision of Nathan, Tr. of Estate of Charles v David Leader Mgt, Inc, No. 357420, 2022 WL 3129201 (Mich Ct App, August 4, 2022). In Charles, Loretta Charles served as the caretaker for her elderly mother, who lived at Bristol Village, an apartment complex. On February 27, 2020, Charles left her mother’s apartment to go to an appointment with her attorney. It had snowed the day before, and Charles testified that it was still snowing that morning. The apartment building had an exit in both the front and back. The walkways leading from the front and back exits were both completely covered with ice. Charles attempted to get to the street by walking in the snow-covered grass alongside the front walkway, but she slipped and fell after putting her right foot down stepping off the porch.
At the trial court level, Defendants filed a Motion for Summary Disposition pursuant to MCR 2.116(C)(10), arguing that, inter alia the snow and ice were open and obvious dangers for which no “special aspects” existed. The trial court denied Defendants’ Motion, and Defendants appealed. The Michigan Court of Appeals held that the snow and ice did in fact constitute an open and obvious condition because a reasonable person in Charles’s position would have discovered the risk presented by a visibly snow-covered surface upon casual inspection. However, applying the rationale of Livings and Bowman, that a danger may be effectively unavoidable when an individual must encounter it to travel to work, the Court held:
While Charles was not her mother’s employee, in the strict legal sense, a fact-finder could reasonably conclude that she was serving in an employment capacity. Taking care of a loved one, even when unpaid, shares many characteristics with traditional employment. And it is not this Court’s role to “sit in judgment of the social value of various jobs.” Livings, 507 Mich at 347 n 16. Therefore, drawing all reasonable inferences in plaintiff’s favor, Charles was present at her mother’s apartment for work purposes.
While Livings and Bowman seemingly required an actual employment relationship to trigger the “effectively unavoidable” exception, it would appear that under Nathan, as long as an invitee is embarking on or returning from any activity which “shares many characteristics with traditional employment” while on the premises, a question of fact exists. Thus, the holding in Nathan represents a marked departure from the standard for “effective unavoidability” articulated in Hoffman (i.e. that one must be “required” or “compelled” to confront a danger). The Court further noted that “it cannot be the case that a reasonable person must wait indefinitely to leave their place of employment until conditions have improved before confronting an open and obvious danger” such that a plaintiff need not provide evidence that she could not have postponed her appointment without consequences.
In his concurring opinion, Judge Douglas Shapiro opined that the open and obvious doctrine “[fails] to provide clear and workable direction to premises possessors as to the scope of their duty.” As Judge Shapiro notes, the Michigan Supreme Court may soon be reconsidering the scope of the open and obvious doctrine in two cases, Kandil-Elsayed v F&E Oil, Inc, ––– Mich –––– (2022) (Docket No. 162907), and Pinsky v Kroger Co of Mich, ––– Mich –––– (2022) (Docket No. 163430). It is worth noting that oral argument on the Applications for Appeal from the Michigan Court of Appeals to the Michigan Supreme Court on both Kandil-Elsayed and Pinsky have not yet been scheduled. Judge Shapiro suggests that, with respect to premises liability cases involving wintry conditions like ice and snow, Michigan should return to the rule enunciated in Quinlivan v Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244; 235 NW2d 732 (1975), that the duty of a premises possessor is to take reasonable measures within a reasonable time after a natural accumulation of snow or ice to diminish the hazard of injury.
Check out our News & Events page to see what’s happening at GLM and find out about our upcoming seminars.
Sarah Nadeau, Editor of The Garan Report Publication, is a Shareholder in our Detroit Office. Sarah can be reached at 313.446.1530 or snadeau@garanlucow.com