968 N.W.2d 397
Mich.2021Background
- On Feb. 21, 2014 Donna Livings slipped on packed snow/ice in the parking lot of Grand Dimitre’s (tenant); the parking lot was owned/controlled by Sage’s Investment Group (defendant). Employees were required to park in the rear and use the back door; the entire lot was described as a sheet of ice and no salt was observed.
- Livings fell while crossing from her car toward the back door to begin her shift, suffered serious injuries, and later underwent surgeries; she sued Sage’s for premises liability (T & J Landscaping claims were resolved separately).
- At summary disposition the trial court granted dismissal as to the employer but denied it as to Sage’s because of a factual dispute whether Livings could have used the front lot/entrance; the Court of Appeals affirmed in a split decision.
- The legal question presented was whether an open-and-obvious hazard can nonetheless be "effectively unavoidable" when an employee must confront it to get to work, and whether Livings raised a triable fact on that issue.
- The Michigan Supreme Court held that an open-and-obvious hazard can be effectively unavoidable if an employee confronted it to enter the workplace for work purposes (measured by an objective reasonable-person-in-the-plaintiff’s-circumstances test), and that genuine factual disputes exist here; the Court affirmed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an employee’s need to reach work is a relevant factor in the "effectively unavoidable" special-aspects exception to the open-and-obvious rule | Livings: employment compels confronting hazard; employment is relevant and can make an obvious hazard effectively unavoidable | Sage’s: employment is irrelevant; the hazard was open and avoidable (e.g., park in front/enter front door or skip work) | Yes. Employment can be relevant: a hazard confronted to enter the workplace for work may be "effectively unavoidable," but the inquiry is objective—would a reasonable person in the plaintiff’s circumstances have used available alternatives? Skipping work is not a reasonable alternative. |
| Whether Livings produced evidence creating a genuine factual dispute that the parking-lot snow/ice was effectively unavoidable | Lot entirely covered in ice; customer lot also icy; she had to cross to start her shift and could not reasonably avoid or delay without effectively skipping work | Defendant: alternative routes/parking and waiting were available; condition was open and obvious so no duty as a matter of law | Genuine issue of material fact exists; a factfinder could conclude Livings confronted the condition to enter for work and that reasonable alternatives were not available. Case remanded. |
| Whether Michigan should follow the Restatement §343A Illustration (employee compelled to use hazardous approach) | Livings: Restatement illustration supports treating compelled employee encounters as foreseeable and thus potentially imposing duty | Sage’s: Hoffner and Michigan caselaw reject using employment to create a subclass of invitees; Restatement illustration not controlling | Court adopted the Restatement illustration as persuasive and consistent with Michigan law here (while not wholesale adopting all Restatement commentary). |
| Whether the inquiry is subjective to the plaintiff or objective (condition-focused) | Livings: circumstances of the employee are relevant to whether alternatives would be used | Sage’s: analysis must focus on the objective nature of the condition, not on the plaintiff’s personal situation | Court: objective standard governs—ask whether a reasonable premises possessor could foresee the employee would confront the hazard and whether a reasonable person in the plaintiff’s circumstances would have used available alternatives. |
Key Cases Cited
- Lugo v. Ameritech Corp., Inc., 629 N.W.2d 384 (Mich. 2001) (articulated Michigan’s “special aspects” exception to the open-and-obvious rule)
- Hoffner v. Lanctoe, 821 N.W.2d 88 (Mich. 2012) (explained "effectively unavoidable" standard and warned against creating subclasses of invitees)
- Riddle v. McLouth Steel Prod. Corp., 485 N.W.2d 676 (Mich. 1992) (adopted Restatement approach to premises owner’s duty and open-and-obvious rule)
- Bertrand v. Alan Ford, Inc., 537 N.W.2d 185 (Mich. 1995) (discussed duty, special aspects, and jury/bench roles in premises-liability matters)
- Perkoviq v. Delcor Homes–Lake Shore Pointe, 643 N.W.2d 212 (Mich. 2002) (refused to find duty where invitees/contractors on site were expected to take precautions)
- Singerman v. Muni Serv. Bureau, Inc., 565 N.W.2d 383 (Mich. 1997) (suggested employment may be relevant when plaintiff compelled to use premises but found no special aspects in that record)
- LaFever v. Kemlite Co., 706 N.E.2d 441 (Ill. 1998) (Illinois supreme court adopting Restatement approach: foreseeability that employees would confront obvious hazards when necessary for employment)