open and obvious danger doctrine in Michigan

2024First, our Supreme Court overruled Lugo v Ameritech Corp, Inc, 464 Mich 512, 516 ; 629 NW2d 384 (2001) to the extent that it held that “the open and obvious danger doctrine is relevant to the defendant’s duty.” Kandil-Elsayed, 512 Mich at 153.

2024First, our Supreme Court overruled Lugo v Ameritech Corp, Inc, 464 Mich 512, 516 ; 629 NW2d 384 (2001) to the extent that it held that “the open and obvious danger doctrine is relevant to the defendant’s duty.” Kandil-Elsayed, 512 Mich at 153.

2022See Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich App 710, 716 ; 737 NW2d 179 (2007) (stating that “mere distractions are not sufficient to prevent application of the open and obvious danger doctrine.”). -3- Although the evidence highlighted by Detroit Hotel Services, LLC is supportive of its argument that the hazard was not open and obvious, we have to view the evidence in the light most favorable to Eggerton, the non-moving party.

2022See Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich App 710, 716 ; 737 NW2d 179 (2007) (stating that “mere distractions are not sufficient to prevent application of the open and obvious danger doctrine.”). -3- Although the evidence highlighted by Detroit Hotel Services, LLC is supportive of its argument that the hazard was not open and obvious, we have to view the evidence in the light most favorable to Eggerton, the non-moving party.

2022See, O’Donnell v Garasic, 259 Mich App 569, 578 ; 676 NW2d 213 (2003) (finding that not all building code violations would preclude the application of the open and obvious danger doctrine).

2022See, O’Donnell v Garasic, 259 Mich App 569, 578 ; 676 NW2d 213 (2003) (finding that not all building code violations would preclude the application of the open and obvious danger doctrine).

2023However, this general duty does not exist as to the removal of open and obvious dangers: [W]here the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, an invitor owes no duty to protect or warn the invitee unless he should anticipate the harm despite knowledge of it on behalf of the invitee. [Id. (quotation marks and citation omitted).] A limited exception to the open and obvious danger doctrine arises when “special aspects of a condition make even an open and obvious risk unreasonable.” Hoffner, 492 Mich at 461 .

2023SPECIAL ASPECTS Under the limited special aspects exception to the open and obvious danger doctrine, “liability may be imposed only for an unusual open and obvious condition that is unreasonably dangerous because it present[s] an extremely high risk of severe harm to an invitee in circumstances where there is no sensible reason for such an inordinate risk of severe harm to be presented.” Hoffner, 492 Mich at 462 (quotation marks and citation omitted).

2019On appeal, this Court noted that the case involved claims of both ordinary negligence and premises liability and stated that the “distinction in theory is important and is one that the bench and bar have increasingly failed to recognize in applying the open and obvious danger doctrine.” Id. at 487 .

2016If the plaintiff’s injury arose from an -5- allegedly dangerous condition on the land, the action sounds in premises liability rather than ordinary negligence; this is true even when the plaintiff alleges that the premises possessor created the condition giving rise to the plaintiff’s injury. [Buhalis v Trinity Continuing Care Services, 296 Mich App 685, 691-692 ; 822 NW2d 254 (2012) (quotation marks and citations omitted).] This distinction is particularly important because the open and obvious danger doctrine is available as a defense to a premises liability claim “whether the plaintiff has

2016See, e.g., Perkoviq, 466 Mich at 19-20 (holding that “[t]he mere presence of ice, snow, or frost on a sloped rooftop generally does not create an unreasonably dangerous condition”); Corey v Davenport College of Business (On Remand), 251 Mich App 1, 6-7 ; 649 NW2d 392 (2002) (holding that ice-covered steps did not present a high likelihood of harm or severity of harm); Royce v Chatwell Club Apartments, 276 Mich App 389, 395-396 ; 740 NW2d 547 (2007) (holding that “[t]he risk of slipping and falling on ice is not sufficiently similar to those special aspects discussed in Lugo to constitute a uni

2016See, e.g., Perkoviq, 466 Mich at 19-20 (holding that “[t]he mere presence of ice, snow, or frost on a sloped rooftop generally does not create an unreasonably dangerous condition”); Corey v Davenport College of Business (On Remand), 251 Mich App 1, 6-7 ; 649 NW2d 392 (2002) (holding that ice-covered steps did not present a high likelihood of harm or severity of harm); Royce v Chatwell Club Apartments, 276 Mich App 389, 395-396 ; 740 NW2d 547 (2007) (holding that “[t]he risk of slipping and falling on ice is not sufficiently similar to those special aspects discussed in Lugo to constitute a uni

2023See Bragan v Symanzik, 263 Mich App 324, 333 ; 687 NW2d 881 (2004) (“Taken to its logical conclusion, the cases that followed Lugo disallowed liability to individuals laden with . . . physical disabilities[.]”). 1 1 In contrast to our approach, some of our sister states have recognized that vision impairments are properly considered under an open and obvious danger analysis.

2023See Bragan v Symanzik, 263 Mich App 324, 333 ; 687 NW2d 881 (2004) (“Taken to its logical conclusion, the cases that followed Lugo disallowed liability to individuals laden with . . . physical disabilities[.]”). 1 1 In contrast to our approach, some of our sister states have recognized that vision impairments are properly considered under an open and obvious danger analysis.

2023Instead of acting as a bar to a plaintiff’s recovery where the plaintiff invitee was injured on the defendant’s property as a result of both parties’ negligence, the rule simply defines the duty of care a possessor of land owes his invitees.”); Eiselein v K-Mart, Inc, 868 P2d 893, 896 (Wy, 1994) (“The plain language of the statute cannot be read to impose new duties of care on prospective defendants.

2023Instead of acting as a bar to a plaintiff’s recovery where the plaintiff invitee was injured on the defendant’s property as a result of both parties’ negligence, the rule simply defines the duty of care a possessor of land owes his invitees.”); Eiselein v K-Mart, Inc, 868 P2d 893, 896 (Wy, 1994) (“The plain language of the statute cannot be read to impose new duties of care on prospective defendants.

2023Quoting favorably from an illustration in the Second Restatement, the majority explained that in some cases, the fact that a danger is open and obvious “ ‘is not . . . conclusive in determining the duty of the possessor,’ ” because it “ ‘is important in determining whether the invitee is to be charged with contributory negligence . . . .’ ” Id. at 612 , quoting 2 Restatement Torts, 2d, § 343A, comment f, p 220 (emphasis omitted). 20 This analysis suggests that the open and obvious danger doctrine will at times go to duty, and at other times, breach. 6 Shortly after the Bertrand decision, the L

2023Quoting favorably from an illustration in the Second Restatement, the majority explained that in some cases, the fact that a danger is open and obvious “ ‘is not . . . conclusive in determining the duty of the possessor,’ ” because it “ ‘is important in determining whether the invitee is to be charged with contributory negligence . . . .’ ” Id. at 612 , quoting 2 Restatement Torts, 2d, § 343A, comment f, p 220 (emphasis omitted). 20 This analysis suggests that the open and obvious danger doctrine will at times go to duty, and at other times, breach. 6 Shortly after the Bertrand decision, the L

2024This Court in Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 479 ; 760 NW2d 287 (2008) explained the basic principle as follows: When applying the open and obvious danger doctrine to conditions involving the natural accumulation of ice and snow, our courts have progressively imputed knowledge regarding the existence of a condition as should reasonably be gleaned from all of the senses as well as one’s common knowledge of weather hazards that occur in Michigan during the winter months.

2024This Court in Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 479 ; 760 NW2d 287 (2008) explained the basic principle as follows: When applying the open and obvious danger doctrine to conditions involving the natural accumulation of ice and snow, our courts have progressively imputed knowledge regarding the existence of a condition as should reasonably be gleaned from all of the senses as well as one’s common knowledge of weather hazards that occur in Michigan during the winter months.

2020See Allison v AEW Capital Mgt, LLP, 481 Mich 419 , 425 n 2; 751 NW2d 8 (2008) (“[A] defendant cannot use the ‘open and obvious’ danger doctrine to avoid liability when the defendant has a statutory duty to maintain the premises in accordance with MCL 554.139(1)(a) or (b).”).

2020See Allison v AEW Capital Mgt, LLP, 481 Mich 419 , 425 n 2; 751 NW2d 8 (2008) (“[A] defendant cannot use the ‘open and obvious’ danger doctrine to avoid liability when the defendant has a statutory duty to maintain the premises in accordance with MCL 554.139(1)(a) or (b).”).

2023“The open and obvious danger doctrine focuses on the condition of the premises and the hazard as they -3- existed at the time the plaintiff encountered them.” Blackwell v Franchi, 318 Mich App 573 , 579; 899 NW2d 415 (2017), remanded on other grounds 502 Mich 918 (2018).1 Summary disposition is not warranted if there is “sufficient evidence to create a genuine issue of material fact that an ordinary user upon casual inspection could not have discovered the existence of the [hazard].” Novotney v Burger King Corp (On Remand), 198 Mich App 470, 475 ; 499 NW2d 379 (1993).

2023“The open and obvious danger doctrine focuses on the condition of the premises and the hazard as they -3- existed at the time the plaintiff encountered them.” Blackwell v Franchi, 318 Mich App 573 , 579; 899 NW2d 415 (2017), remanded on other grounds 502 Mich 918 (2018).1 Summary disposition is not warranted if there is “sufficient evidence to create a genuine issue of material fact that an ordinary user upon casual inspection could not have discovered the existence of the [hazard].” Novotney v Burger King Corp (On Remand), 198 Mich App 470, 475 ; 499 NW2d 379 (1993).

2021The majority likened Karaczewski to Jones, 467 Mich at 266 , concerning a municipality’s use of the open and obvious danger doctrine.

2021The majority likened Karaczewski to Jones, 467 Mich at 266 , concerning a municipality’s use of the open and obvious danger doctrine.

2016Additionally, we recognize that “the open and obvious danger doctrine does not bar [a] plaintiff’s claim against [a] defendant for violating its statutory obligation under MCL 554.139(1)(a).” Benton v Dart Properties, Inc, 270 Mich App 437, 445 ; 715 NW2d 335 (2006). 4 The trial court similarly operated under this assumption when it decided defendant’s motion for summary disposition. -3- Subsequently, we have held that the principles set forth in Allison apply to all common areas.

2016Additionally, we recognize that “the open and obvious danger doctrine does not bar [a] plaintiff’s claim against [a] defendant for violating its statutory obligation under MCL 554.139(1)(a).” Benton v Dart Properties, Inc, 270 Mich App 437, 445 ; 715 NW2d 335 (2006). 4 The trial court similarly operated under this assumption when it decided defendant’s motion for summary disposition. -3- Subsequently, we have held that the principles set forth in Allison apply to all common areas.

2021“The entire premise of the open and obvious danger doctrine requires that the hazard would be ‘obvious’ upon ‘casual inspection.’ ” Watts v Mich Multi-King, Inc, 291 Mich App 98, 105 ; 804 NW2d 569 (2010) (citation and emphasis omitted).

2021“The entire premise of the open and obvious danger doctrine requires that the hazard would be ‘obvious’ upon ‘casual inspection.’ ” Watts v Mich Multi-King, Inc, 291 Mich App 98, 105 ; 804 NW2d 569 (2010) (citation and emphasis omitted).

2016See, e.g., Perkoviq, 466 Mich at 19-20 (holding that “[t]he mere presence of ice, snow, or frost on a sloped rooftop generally does not create an unreasonably dangerous condition”); Corey v Davenport College of Business (On Remand), 251 Mich App 1, 6-7 ; 649 NW2d 392 (2002) (holding that ice-covered steps did not present a high likelihood of harm or severity of harm); Royce v Chatwell Club Apartments, 276 Mich App 389, 395-396 ; 740 NW2d 547 (2007) (holding that “[t]he risk of slipping and falling on ice is not sufficiently similar to those special aspects discussed in Lugo to constitute a uni

2004However, subsequent decisions of our Supreme Court and this Court have applied the open and obvious doctrine to snow and ice cases, see Perkoviq v Delcor Homes — Lake Shore Pointe, Ltd, 466 Mich 11 ; 643 NW2d 212 (2002), and Joyce, supra. Further, in Corey, supra at 8 , this Court noted that the rule in Quinlivan has evolved in light of more recent cases: [TJhere is some suggestion that ice and snowy conditions may constitute an “exception” to the open and obvious danger doctrine.

2019Emphasis added.] We recently considered the open and obvious danger doctrine in Riddle v McLouth Steel Products, 440 Mich 85 ; 485 NW2d 676 (1992). . . .

2019Emphasis added.] We recently considered the open and obvious danger doctrine in Riddle v McLouth Steel Products, 440 Mich 85 ; 485 NW2d 676 (1992). . . .

2004In Mallard [v Hoffinger Industries, Inc, 210 Mich App 282, 285-286 ; 533 NW2d 1 (1995)], this Court explained why the open and obvious danger doctrine, in the context of a products liability case, applies to children as well as adults: “ ‘Because the determination of the obvious nature of the danger is an objective one that focuses on the typical pool user, and because it is not necessary that the user understand the precise nature of every possible injury that might result from diving into an above-ground pool, we are unable to distinguish this case from Glittenberg [a Dough-boy Recreational

2004In Mallard [v Hoffinger Industries, Inc, 210 Mich App 282, 285-286 ; 533 NW2d 1 (1995)], this Court explained why the open and obvious danger doctrine, in the context of a products liability case, applies to children as well as adults: “ ‘Because the determination of the obvious nature of the danger is an objective one that focuses on the typical pool user, and because it is not necessary that the user understand the precise nature of every possible injury that might result from diving into an above-ground pool, we are unable to distinguish this case from Glittenberg [a Dough-boy Recreational

2018Under comparative negligence, where both the plaintiff and the defendant are culpable of negligence with regard to the plaintiff’s injury, this reduces the amount of damages the plaintiff may recover but does not preclude recovery altogether. [Id. at 523.;] Yet, as the dissent points out, the Supreme Court’s orders in Janson v Sajewski Funeral Home, Inc, 486 Mich 934, 935 ; 782 NW2d 201 (2010), and Cole v Henry Ford Health Sys, 497 Mich 881 ; 854 NW2d 717 (2014), seem to support that wintry conditions factor into the open and obvious danger analysis.

2018Under comparative negligence, where both the plaintiff and the defendant are culpable of negligence with regard to the plaintiff’s injury, this reduces the amount of damages the plaintiff may recover but does not preclude recovery altogether. [Id. at 523.;] Yet, as the dissent points out, the Supreme Court’s orders in Janson v Sajewski Funeral Home, Inc, 486 Mich 934, 935 ; 782 NW2d 201 (2010), and Cole v Henry Ford Health Sys, 497 Mich 881 ; 854 NW2d 717 (2014), seem to support that wintry conditions factor into the open and obvious danger analysis.

2019“The risk of slipping and falling on ice is not sufficiently similar to those special aspects discussed in Lugo to constitute a uniquely high likelihood or severity of harm and remove the condition from the open and obvious danger doctrine.” Royce, 276 Mich App at 395-396 .

2016See, e.g., Perkoviq, 466 Mich at 19-20 (holding that “[t]he mere presence of ice, snow, or frost on a sloped rooftop generally does not create an unreasonably dangerous condition”); Corey v Davenport College of Business (On Remand), 251 Mich App 1, 6-7 ; 649 NW2d 392 (2002) (holding that ice-covered steps did not present a high likelihood of harm or severity of harm); Royce v Chatwell Club Apartments, 276 Mich App 389, 395-396 ; 740 NW2d 547 (2007) (holding that “[t]he risk of slipping and falling on ice is not sufficiently similar to those special aspects discussed in Lugo to constitute a uni

2016Thus, we need not consider the rest of plaintiff’s claims, as “the open and obvious danger doctrine will cut off liability if the invitee should have discovered the condition and realized its danger.” Grandberry-Lovette v Garascia, 303 Mich App 566, 576 ; 844 NW2d 178 (2014) (quotation marks and citation omitted).

2016Thus, we need not consider the rest of plaintiff’s claims, as “the open and obvious danger doctrine will cut off liability if the invitee should have discovered the condition and realized its danger.” Grandberry-Lovette v Garascia, 303 Mich App 566, 576 ; 844 NW2d 178 (2014) (quotation marks and citation omitted).

2008The Court proceeded to observe that it was not bound to follow the discussion of MCL 554.139(l)(a) and (b) in Teufel because, “[h]ad [the] Court in Teufel intended to create a rule of law regarding the availability of the open and obvious danger doctrine when a landlord has a statutory duty under MCL 554.139(l)(a) and (b), it would have done so in the body of the opinion rather than in a footnote.” Id. at 669-670, citing Guerra v Garratt, 222 Mich App 285, 289-292 ; 564 NW2d 121 (1997).

2008The Court proceeded to observe that it was not bound to follow the discussion of MCL 554.139(l)(a) and (b) in Teufel because, “[h]ad [the] Court in Teufel intended to create a rule of law regarding the availability of the open and obvious danger doctrine when a landlord has a statutory duty under MCL 554.139(l)(a) and (b), it would have done so in the body of the opinion rather than in a footnote.” Id. at 669-670, citing Guerra v Garratt, 222 Mich App 285, 289-292 ; 564 NW2d 121 (1997).

2004Hughes v PMG Bldg, Inc, 227 Mich App 1, 10 ; 574 NW2d 691 (1997). “[0]nly those special aspects that give rise to a uniquely high likelihood of harm or severity of harm if the risk is not avoided will serve to remove that condition from the open and obvious danger doctrine.” Lugo, supra at 519 .

2004Hughes v PMG Bldg, Inc, 227 Mich App 1, 10 ; 574 NW2d 691 (1997). “[0]nly those special aspects that give rise to a uniquely high likelihood of harm or severity of harm if the risk is not avoided will serve to remove that condition from the open and obvious danger doctrine.” Lugo, supra at 519 .