open and obvious doctrine in Michigan

2024Rather, the open and obvious nature of a danger—i.e., whether it is ‘reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection,’ Hoffner [v Lanctoe], 492 Mich [450,] 461[; 821 NW2d 88 (2012)]—is relevant to the defendant’s breach and the plaintiff’s comparative fault. [Id.; slip op at 39-40.] Plaintiff argued that, because the trial court dismissed all her claims after holding that they were barred by the open and obvious doctrine, the trial court’s decision must be reversed and her case reinstated.

2023The alleged failure to provide adequate lighting is unpersuasive, 6 See Pozanco v FJB, 6501, Inc, 346 So3d 120, 124 (Fla App, 2022) (some conditions can be so obvious and not inherently dangerous that they, as a matter of law, do not constitute a dangerous condition and will not give rise to liability; under the open and obvious doctrine, a possessor of land is not liable to persons for physical harm caused to them by a condition on the land whose danger is known or obvious to them); Lugo v Ameritech Corp, Inc, 464 Mich 512, 516 ; 629 NW2d 384 (2001) (a premises possessor does not have a duty

2026Second, plaintiff alleges that defendant Ascension knew of the danger the goose posed, 3 Tripp relied on Lugo v Ameritech Corp, Inc, 464 Mich 512 ; 629 NW2d 384 (2001) and applied the open and obvious doctrine after determining that a dog can be a dangerous condition on the land.

2026Second, plaintiff alleges that defendant Ascension knew of the danger the goose posed, 3 Tripp relied on Lugo v Ameritech Corp, Inc, 464 Mich 512 ; 629 NW2d 384 (2001) and applied the open and obvious doctrine after determining that a dog can be a dangerous condition on the land.

2023To top it off, the Court subsequently narrowed Quinlivan, explaining that it “must be understood in light of this Court’s subsequent decisions in Bertrand [v Alan Ford, Inc, 449 Mich 606 ; 537 NW2d 185 (1995)] and Lugo,” which as discussed below, addressed the open and obvious doctrine.

2023To top it off, the Court subsequently narrowed Quinlivan, explaining that it “must be understood in light of this Court’s subsequent decisions in Bertrand [v Alan Ford, Inc, 449 Mich 606 ; 537 NW2d 185 (1995)] and Lugo,” which as discussed below, addressed the open and obvious doctrine.

2023We noted that the open and obvious doctrine was “a defensive doctrine that attacks the duty element that a plaintiff must establish in a prima facie negligence case.” Id. at 95-96 .

2023We noted that the open and obvious doctrine was “a defensive doctrine that attacks the duty element that a plaintiff must establish in a prima facie negligence case.” Id. at 95-96 .

2022However, plaintiff also admitted she was not watching the floor where she was walking. “[I]f a [‘]condition creates a risk of harm only because the invitee does not discover the condition or realize its danger, then the open and obvious doctrine will cut off liability if the invitee should have discovered the condition and realized its danger.[’] ” Buhalis, 296 Mich App at 694 .

2018However, because the open and obvious doctrine only applies to premises liability claims and not to ordinary negligence claims, Laier v Kitchen, 266 Mich App 482, 494, 497 ; 702 NW2d 199 (2005), the trial court necessarily viewed plaintiff’s non-derivative claims as sounding solely in premises liability, see Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 691 ; 822 NW2d 254 (2012) (“Courts are not bound by the labels that parties attach to their claims.”); Adams v Adams (On Reconsideration), 276 Mich App 704, 710-711 ; 742 NW2d 399 (2007) (“It is well settled that the gravamen of an

2022Accordingly, we examine “whether a reasonable person in the plaintiff’s position would have foreseen the danger, not whether the particular plaintiff knew or should have known that the condition was hazardous.” Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 479 ; 760 NW2d 287 (2008). “[I]f the particular activity or condition creates a risk of harm only because the invitee does not discover the condition or realize its danger, then the open and obvious doctrine will cut off liability if the invitee should have discovered the condition and realized its danger.” Bertrand v Alan Ford, Inc,

2022Accordingly, we examine “whether a reasonable person in the plaintiff’s position would have foreseen the danger, not whether the particular plaintiff knew or should have known that the condition was hazardous.” Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 479 ; 760 NW2d 287 (2008). “[I]f the particular activity or condition creates a risk of harm only because the invitee does not discover the condition or realize its danger, then the open and obvious doctrine will cut off liability if the invitee should have discovered the condition and realized its danger.” Bertrand v Alan Ford, Inc,

2017Because the open and obvious doctrine relates to the obviousness of the hazard, see Riddle v McLouth Steel Prod Corp, 440 Mich 85, 96 ; 485 NW2d 676 (1992); Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 500 ; 418 NW2d 381 (1988); Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 478 ; 760 NW2d 287 (2008), it is not clear to what extent the court actually relied on this doctrine when it granted summary disposition. -2- Here, as the trial court correctly noted, there were multiple wet-floor signs present and Ms. Foster “almost had to walk around” two of them while she was inside the s

2017Because the open and obvious doctrine relates to the obviousness of the hazard, see Riddle v McLouth Steel Prod Corp, 440 Mich 85, 96 ; 485 NW2d 676 (1992); Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 500 ; 418 NW2d 381 (1988); Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 478 ; 760 NW2d 287 (2008), it is not clear to what extent the court actually relied on this doctrine when it granted summary disposition. -2- Here, as the trial court correctly noted, there were multiple wet-floor signs present and Ms. Foster “almost had to walk around” two of them while she was inside the s

2018However, because the open and obvious doctrine only applies to premises liability claims and not to ordinary negligence claims, Laier v Kitchen, 266 Mich App 482, 494, 497 ; 702 NW2d 199 (2005), the trial court necessarily viewed plaintiff’s non-derivative claims as sounding solely in premises liability, see Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 691 ; 822 NW2d 254 (2012) (“Courts are not bound by the labels that parties attach to their claims.”); Adams v Adams (On Reconsideration), 276 Mich App 704, 710-711 ; 742 NW2d 399 (2007) (“It is well settled that the gravamen of an

2018However, because the open and obvious doctrine only applies to premises liability claims and not to ordinary negligence claims, Laier v Kitchen, 266 Mich App 482, 494, 497 ; 702 NW2d 199 (2005), the trial court necessarily viewed plaintiff’s non-derivative claims as sounding solely in premises liability, see Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 691 ; 822 NW2d 254 (2012) (“Courts are not bound by the labels that parties attach to their claims.”); Adams v Adams (On Reconsideration), 276 Mich App 704, 710-711 ; 742 NW2d 399 (2007) (“It is well settled that the gravamen of an

2023Allison v AEW Capital Mgt, LLP, 481 Mich 419 , 425 n2; 751 NW2d 8 (2008); Benton v Dart Props Inc, 270 Mich App 437, 438 ; 715 NW2d 335 (2006); Wilson v BRK, Inc, 328 Mich App 505 , 517; 938 NW2d 761 (2019).

2023Allison v AEW Capital Mgt, LLP, 481 Mich 419 , 425 n2; 751 NW2d 8 (2008); Benton v Dart Props Inc, 270 Mich App 437, 438 ; 715 NW2d 335 (2006); Wilson v BRK, Inc, 328 Mich App 505 , 517; 938 NW2d 761 (2019).

2023It seems apparent that the majority has not stopped to carefully consider what the current law is. 30 that the landowner is going to carry the brunt of the financial and human cost in relaxing the open and obvious principle.” See Shelton v Kentucky Easter Seals Society, Inc, 413 SW3d 901, 919 (Ky, 2013) (Cunningham, J., dissenting).

2023See id. at 920 (Scott, J., dissenting) (“[B]ecause the standard for termination is now more difficult [after the majority ended the open and obvious doctrine and held that considerations of obviousness went to comparative fault], many of these cases will proceed on to trial with the concomitant increase in litigation costs and expenses for both sides . . . .”).

2023See, e.g., Owens v Allis-Chalmers Corp, 414 Mich 413 ; 326 NW2d 372 (1982) (addressing the open and obvious doctrine in the context of a products liability claim).

2023See, e.g., Owens v Allis-Chalmers Corp, 414 Mich 413 ; 326 NW2d 372 (1982) (addressing the open and obvious doctrine in the context of a products liability claim).

2023See Dawe v Dr Reuven Bar-Levav & Assoc, PC, 485 Mich 20, 28 ; 780 NW2d 272 (2010) (“The abrogative effect of a statutory scheme is a question of legislative intent, and ‘legislative amendment of the common law is not lightly presumed.’ Rather, the Legislature ‘should speak in no uncertain terms’ when it exercises its authority to modify the common law.”) (citations omitted).

2023See Dawe v Dr Reuven Bar-Levav & Assoc, PC, 485 Mich 20, 28 ; 780 NW2d 272 (2010) (“The abrogative effect of a statutory scheme is a question of legislative intent, and ‘legislative amendment of the common law is not lightly presumed.’ Rather, the Legislature ‘should speak in no uncertain terms’ when it exercises its authority to modify the common law.”) (citations omitted).

2023But it was not a perfect match for the open and obvious doctrine because it essentially represented a duty “to not increase these natural hazards or create a new hazard by any affirmative act . . . .” Bard v Weathervane of Mich, 51 Mich App 329, 331 ; 214 NW2d 709 (1974); Weider v Goldsmith, 353 Mich 339, 341 ; 91 NW2d 283 (1958) (“The sine qua non of this doctrine is that a new element of danger, not theretofore present, be introduced by the acts of the defendants.”).

2023But it was not a perfect match for the open and obvious doctrine because it essentially represented a duty “to not increase these natural hazards or create a new hazard by any affirmative act . . . .” Bard v Weathervane of Mich, 51 Mich App 329, 331 ; 214 NW2d 709 (1974); Weider v Goldsmith, 353 Mich 339, 341 ; 91 NW2d 283 (1958) (“The sine qua non of this doctrine is that a new element of danger, not theretofore present, be introduced by the acts of the defendants.”).

2023See Papadopoulous v Target Corp, 457 Mass 368, 380; 930 NE2d 142 (2010) (“[T]he openness and obviousness of snow and ice have nothing to do with whether such accumulations are natural rather than unnatural . . . .”).

2023See Papadopoulous v Target Corp, 457 Mass 368, 380; 930 NE2d 142 (2010) (“[T]he openness and obviousness of snow and ice have nothing to do with whether such accumulations are natural rather than unnatural . . . .”).

2023Following Lugo, and because 1 Wells’s status as an invitee is undisputed. -3- “[q]uestions regarding whether a duty exists are [generally] for the court to decide as a matter of law,” Mouzon, 308 Mich App at 418 , courts often summarily dismissed premises liability cases under the open and obvious doctrine, see e.g., Kennedy v Great Atlantic and Pacific Tea Co, 274 Mich App 710, 712-713, 716-717, 722 ; (2007).

2023Following Lugo, and because “[q]uestions regarding whether a duty exists are [generally] for the court to decide as a matter of law,” Mouzon v Achievable Visions, 308 Mich App 415, 418 ; 864 NW2d 606 (2014), courts often summarily dismissed premises liability cases under the open and obvious doctrine, see e.g., Kennedy v Great Atlantic and Pacific Tea Co, 274 Mich App 710, 712-713, 716-717, 722 ; (2007).

2019The amendment, adding subsection (5) to permit a municipality to assert the open and obvious defense, in effect, now additionally absolves a municipality of liability stemming from a dangerous condition that is open and obvious, i.e., where “it is reasonable to expect that an average person with ordinary intelligence would have discovered [the condition] upon casual inspection.”8 Hoffner v Lanctoe, 492 Mich 450, 460-461 ; 821 NW2d 88 (2012); Novotney v Burger King Corp (On Remand), 198 Mich App 470, 474-475 ; 499 NW2d 379 (1993).

2019The amendment, adding subsection (5) to permit a municipality to assert the open and obvious defense, in effect, now additionally absolves a municipality of liability stemming from a dangerous condition that is open and obvious, i.e., where “it is reasonable to expect that an average person with ordinary intelligence would have discovered [the condition] upon casual inspection.”8 Hoffner v Lanctoe, 492 Mich 450, 460-461 ; 821 NW2d 88 (2012); Novotney v Burger King Corp (On Remand), 198 Mich App 470, 474-475 ; 499 NW2d 379 (1993).

2017The trial court thus did not err in finding that the condition which caused defendant’s fall; the ice, was open and obvious.2 Because a landowner only owes a licensee the duty to warn of any hidden dangers that the landowners knows or has reason to know of, if the licensee does not know or have reason to know of the danger, Stitt, 462 Mich at 596 , and plaintiff had reason to know of the danger, we need not consider plaintiff’s arguments that defendant had notice of the icy condition of the driveway, or that defendant failed to warn plaintiff of the condition.3 Plaintiff next contends that the

2017The trial court thus did not err in finding that the condition which caused defendant’s fall; the ice, was open and obvious.2 Because a landowner only owes a licensee the duty to warn of any hidden dangers that the landowners knows or has reason to know of, if the licensee does not know or have reason to know of the danger, Stitt, 462 Mich at 596 , and plaintiff had reason to know of the danger, we need not consider plaintiff’s arguments that defendant had notice of the icy condition of the driveway, or that defendant failed to warn plaintiff of the condition.3 Plaintiff next contends that the

2019Before the statutory amendment at issue in this case became effective, our appellate courts held that the open and obvious doctrine of common-law premises liability was “inapplicable to a claim that a municipality violated its statutory duty to maintain a sidewalk on a public highway in reasonable repair.” Jones v Enertel, Inc, 467 Mich 266, 267 ; 650 NW2d 334 (2002).

2019Before the statutory amendment at issue in this case became effective, our appellate courts held that the open and obvious doctrine of common-law premises liability was “inapplicable to a claim that a municipality violated its statutory duty to maintain a sidewalk on a public highway in reasonable repair.” Jones v Enertel, Inc, 467 Mich 266, 267 ; 650 NW2d 334 (2002).

1995We reverse and remand for further proceedings consistent with this opinion. 3 We do not retain jurisdiction._ 1 The open and obvious rule would thus not be a "defenseQ avail *363 able to . . . private persons” under the facts of this case, thus making MCL 691.1412; MSA 3.996(112) inapposite. 2 Our analysis is strictly limited to governmental agencies having clear statutory responsibilities under the statutory provisions that compel the result we have reached. 3 The result we reach is consistent with Walker v City of Flint, 213 Mich App 18 ; 539 NW2d 535 (1995).

1995We reverse and remand for further proceedings consistent with this opinion. 3 We do not retain jurisdiction._ 1 The open and obvious rule would thus not be a "defenseQ avail *363 able to . . . private persons” under the facts of this case, thus making MCL 691.1412; MSA 3.996(112) inapposite. 2 Our analysis is strictly limited to governmental agencies having clear statutory responsibilities under the statutory provisions that compel the result we have reached. 3 The result we reach is consistent with Walker v City of Flint, 213 Mich App 18 ; 539 NW2d 535 (1995).

2012Thus, it has been said that an invitor generally “ ‘owes no duty to protect or warn the invitee’ ” of dangers that are “ ‘known to the invitee or are so obvious that the invitee might reasonably be expected to discover them ....’” Mann v Shusteric Enterprises, Inc, 470 Mich 320, 339 ; 683 NW2d 573 (2004) (CAVANAGH, J., concurring in part and dissenting in part), quoting Riddle, 440 Mich at 96 . 2 In turn, however, the Restatement approach recognizes exceptions to the open-and-obvious doctrine.

2012Thus, it has been said that an invitor generally “ ‘owes no duty to protect or warn the invitee’ ” of dangers that are “ ‘known to the invitee or are so obvious that the invitee might reasonably be expected to discover them ....’” Mann v Shusteric Enterprises, Inc, 470 Mich 320, 339 ; 683 NW2d 573 (2004) (CAVANAGH, J., concurring in part and dissenting in part), quoting Riddle, 440 Mich at 96 . 2 In turn, however, the Restatement approach recognizes exceptions to the open-and-obvious doctrine.

2022I write separately to: (1) note the failure of the open and obvious doctrine to provide clear and workable direction to premises possessors as to the scope of their duty, and (2) respectfully suggest that in snow and ice cases, the Supreme Court consider returning 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.

2022I write separately to: (1) note the failure of the open and obvious doctrine to provide clear and workable direction to premises possessors as to the scope of their duty, and (2) respectfully suggest that in snow and ice cases, the Supreme Court consider returning 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.

2019As this Court explained, if the open and obvious doctrine applied, a municipality “could meet its statutory duty merely by allowing the . . . sidewalks to deteriorate until their appearance made any danger apparent to the public.” Haas, 214 Mich App at 363 .

2019Haas, 214 Mich App at 364 . 5 MCL 691.1412 provides that claims brought under the governmental tort liability act, MCL 691.1401 et seq., “are subject to all of the defenses available to claims sounding in tort brought against private persons.” -5- The amendment, adding subsection (5) to permit a municipality to assert the open and obvious defense, in effect, now additionally absolves a municipality of liability stemming from a dangerous condition that is open and obvious, i.e., where “it is reasonable to expect that an average person with ordinary intelligence would have discovered [the condit