C Matthew Emanuelsen v. City of Woodhaven
358286
Mich. Ct. App.Oct 20, 2022Background
- Plaintiff Matthew Emanuelsen tripped on a vertical sidewalk discontinuity that was covered by a piece of paper and was injured.
- The City of Woodhaven moved for summary disposition arguing the defect was open and obvious and thus barred recovery.
- The trial court denied the city’s motion; the appellate majority affirmed that denial.
- Judge Elizabeth Gleicher concurred and wrote separately to respond to a dissenting opinion.
- Gleicher emphasized that the legal inquiry asks whether the danger "as presented" to the plaintiff was open and obvious on casual inspection; here the paper concealed the defect from a reasonable observer.
- Because a paper on a sidewalk does not ordinarily alert a person to an underlying hazard, the concealed defect was not open and obvious as a matter of law and the question remained for the factfinder.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a sidewalk vertical discontinuity concealed by a piece of paper is open and obvious as a matter of law | Emanuelsen: the danger was not "open and obvious" because the paper concealed the hazardous discontinuity from an ordinary user on casual inspection | City: the defect was objectively discoverable and thus open and obvious, barring recovery | The court held the open-and-obvious doctrine did not apply as a matter of law because the danger was not presented to the plaintiff on casual inspection; fact question for jury |
Key Cases Cited
- Novotney v. Burger King Corp., 198 Mich. App. 470 (Mich. Ct. App. 1993) (establishes test whether danger, "as presented," would be discovered on casual inspection)
- Hoffner v. Lanctoe, 492 Mich. 450 (Mich. 2012) (discusses duty to take reasonable measures to avoid danger and open-and-obvious doctrine)
- Kirby v. Larson, 400 Mich. 585 (Mich. 1977) (background on comparative fault replacing contributory negligence)
- De Clerico v. Gimbel Bros., Inc., 160 Pa. Super. 197 (Pa. Super. 1947) (obscuration cases: concealed hazards may excuse failure to perceive danger and negate contributory negligence)