AHLAM KANDIL-ELSAYED, Plaintiff-Appellant, v F & E OIL, INC., Defendant-Appellee. RENEE PINSKY and DAVID PINSKY, Plaintiffs-Appellants, v KROGER CO. OF MICHIGAN, Defendant-Appellee.
Docket Nos. 162907 and 163430
Michigan Supreme Court
Decided July 28, 2023
Chief Justice: Elizabeth T. Clement. Justices: Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Megan K. Cavanagh, Elizabeth M. Welch, Kyra H. Bolden.
Argued on application for leave to appeal March 2, 2023. Reporter of Decisions: Kathryn L. Loomis.
This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
In Docket No. 162907, Ahlam Kandil-Elsayed filed a negligence action based on premises liability in the Wayne Circuit Court against F & E Oil, Inc., after she slipped and fell at a gas station defendant operated. Plaintiff argued that the snow and ice on the premises constituted a dangerous condition. Defendant moved for summary disposition under MCR 2.116(C)(10), arguing that because the condition was open and obvious and had no special aspects, it did not owe plaintiff a duty of care. Plaintiff responded that defendant did owe her a duty of care because the condition, while open and obvious, was effectively unavoidable. The trial court, David J. Allen, J., granted defendant summary disposition, and plaintiff appealed. The Court of Appeals, LETICA, P.J., and CAVANAGH and FORT HOOD, JJ., affirmed in an unpublished per curiam opinion issued March 11, 2021 (Docket No. 350220). Plaintiff applied for leave to appeal in the Supreme Court, and the Court scheduled and heard oral argument on the application, directing plaintiff to brief whether Lugo v Ameritech Corp, Inc, 464 Mich 512 (2001), was consistent with Michigan’s comparative-negligence framework and, if not, what approach the Court should adopt for analyzing premises-liability cases under a comparative-negligence framework. 509 Mich 857 (2022).
In Docket No. 163430, Renee Pinsky and her husband, David Pinsky, brought a negligence action based on premises liability in the Washtenaw Circuit Court against Kroger Company of Michigan after Renee Pinsky tripped over a cable that had been strung from a checkout counter to a display basket. Defendant moved for summary disposition under MCR 2.116(C)(10), arguing that because the hazard was open and obvious and no special aspects were present, it owed no duty to plaintiff. The trial court, Timothy P. Connors, J., denied the motion for summary disposition, and defendant appealed. The Court of Appeals, CAMERON, P.J., and BORRELLO and REDFORD, JJ., reversed in an unpublished per curiam opinion issued May 27, 2021 (Docket No. 351025), and remanded for entry of an order granting defendant summary disposition, holding that the cable was open and obvious and not unreasonably dangerous as a matter of law. Plaintiffs applied for leave to appeal in the Supreme Court, and the Court scheduled and heard oral argument on the application, having specified that plaintiffs should brief the same issues as in Docket No. 162907 and that the cases would be argued at the same session. 509 Mich 954 (2022).
A land possessor owes a duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land. Lugo’s holding that the open and obvious danger doctrine is relevant to the defendant’s duty is overruled. While the open and obvious nature of a condition remains relevant in a negligence case based on premises liability, it is analyzed as part of breach and comparative fault, not duty. The special-aspects doctrine in Lugo—which held that land possessors could be held liable for an open and obvious condition only when an invitee provided evidence of special aspects of the condition, such as when the condition was effectively unavoidable or presented a substantial risk of death or severe injury, was overruled to the extent it was inconsistent with the standard in § 343A of the Second Restatement of Torts, which asks whether the land possessor should have anticipated the harm. Although defendants in both cases owed a duty to the respective injured plaintiffs, there remained genuine issues of fact that were relevant to whether the defendants breached that duty and if so, whether plaintiffs were comparatively at fault and should have their damages reduced. The judgments of the Court of Appeals were reversed, and both cases were remanded for further proceedings.
- All negligence actions, including those based on premises liability, require a plaintiff to prove four essential elements: duty, breach, causation, and harm. In the context of premises liability, a landowner’s duty to a visitor depends on whether the visitor is a trespasser, a licensee, or an invitee. Because plaintiffs in these cases were invitees, defendants owed them a duty to exercise reasonable care to protect them from an unreasonable risk of harm caused by a dangerous condition of the land. Whether a defendant owes an actionable legal duty to a plaintiff is a question of law that the court decides, and whether a defendant breached that duty is a question of fact for the jury.
- Michigan formerly considered contributory negligence to be a complete bar to recovery in a negligence action, and the open and obvious nature of a particular danger was relevant to a court’s assessment of whether a plaintiff had been contributorily negligent. In developing its premises-liability law during this era, Michigan courts treated the Restatement of Torts as persuasive and occasionally adopted parts of the Restatement into the common law. Specifically, courts relied on § 343 of the First Restatement of Torts for the rule that a land possessor was subject to liability for bodily harm caused to business visitors only with respect to conditions involving an unreasonable risk to them, but if the landowner had reason to believe the business visitor would discover the condition or realize the risk it involved, the landowner was not subject to liability. Neither § 343 of the First Restatement nor the cases relying on it made clear which part of this analysis involved the element of duty and which involved breach. This analysis changed in 1965 with the publication of the Second Restatement of Torts. Under the revised § 343, landowners were still subject to liability to business visitors—now categorized as “invitees”—only for conditions that involved an unreasonable risk of harm, and they were still generally not liable for dangers that were known or obvious to the invitee. However, under § 343A, landowners would face liability if they should have anticipated the harm despite such knowledge or obviousness. It
remained unclear which pieces of this analysis fell under duty or breach, and therefore which aspects of the analysis should be decided by the judge versus the jury. - In 1979, Michigan abolished the doctrine of contributory negligence and replaced it with the modern scheme of comparative fault, a version of which the Legislature codified in
MCL 600.2957 throughMCL 600.2959 . While the caselaw that followed continued to muddy the waters between which components of the open and obvious danger doctrine pertained to duty and which to breach, the statutory scheme made clear that determinations of comparative fault were to be made by the jury rather than the judge. In 2001, Lugo squarely situated the open and obvious danger doctrine in the element of duty. Lugo also held that if there are “special aspects” of a condition that make even an open and obvious risk unreasonably dangerous, then the possessor has a duty to undertake reasonable precautions to protect invitees from that risk. This placed the rule in § 343, the “open and obvious” exception in § 343A, and any exception to that exception within the element of duty, which is a question of law. Lugo presented two illustrations of the type of “special aspects” that give rise to a duty: a commercial building with only one exit for the general public where the floor is covered with standing water, which would render the open and obvious condition “effectively unavoidable,” and an unguarded 30-foot-deep pit in the middle of a parking lot, which would present a substantial risk of death or severe injury. Lugo thus created what some jurists viewed as an inherent tension between its narrow “special aspects” illustrations and the broader anticipation-of-harm standard imposed on land possessors in § 343A of the Second Restatement. The Third Restatement of Torts has since largely eliminated status-based categories in its presentation of premises-liability law and created one general duty of reasonable care owed to anyone who entered a land possessor’s property, except for certain trespassers. It also stated that whether a dangerous condition is open and obvious bears on the assessment of whether reasonable care was employed and does not pretermit the land possessor’s liability, thus situating the analysis in the element of breach rather than duty. The Second Restatement approach remains the governing approach in Michigan. - Reaching the conclusion that Lugo must be overruled requires an analysis of whether it was wrongly decided, whether it defies practical workability, whether reliance interests would work an undue hardship, and whether changes in the law or facts no longer justify the decision. First, Lugo was wrongly decided because, by concluding that the open and obvious danger doctrine and any exceptions to it are a part of the duty analysis, it ran afoul of Michigan’s commitment to comparative fault. And by announcing the special-aspects test, Lugo created confusion as to what the exceptions to the open and obvious danger doctrine would be. While the doctrine might have been intended simply to illustrate the broader anticipation standard, it has not functioned that way in practice. Second, Lugo defied practical workability because it generated confusion among courts trying to apply it and sowed division. Lugo itself was a divided decision; the author of the earlier decision on which the special-aspects doctrine purported to rely disagreed with Lugo’s characterization of his own analysis, and jurists on the Supreme Court and the Court of Appeals have repeatedly called it into question and disagreed over how to apply it. Third, although Lugo has been on the books and relied on by practitioners and courts for more than 20 years, given the uncertainty and division it has generated, it cannot be said to be so accepted and so fundamental as to create real-world dislocations if changed. Overruling Lugo would end two decades of uncertainty and arguments over its unclear standard and varying applications. Finally, no changes
in the law or facts weighed either for or against overruling Lugo, apart from Lugo’s own failure to account for the shift to a comparative-fault regime. Accordingly, Lugo was overruled. - Several aspects of Michigan’s existing premises-liability jurisprudence remained viable in Michigan. Land possessors continue to have a duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land. The three traditional status-based categories—licensee, invitee, and trespasser—remained. The open and obvious nature of a condition remained a relevant inquiry in a premises-liability case; however, to the extent prior cases have held that it should be analyzed as part of a land possessor’s duty, those cases are overruled. Rather, the open and obvious nature of a danger is relevant to the defendant’s breach and the plaintiff’s comparative fault. This change found support from caselaw and statutory law articulating Michigan’s shift from contributory negligence to comparative fault; from § 51 of the Third Restatement and its commentary, and from the fact that the change effectuated the same policy goals that undergirded the Court’s premises-liability decisions spanning before and after Lugo; namely, that landowners must act reasonably to guard against harms that threaten those who enter their land and that landowners are not charged with guaranteeing the safety of every person who comes onto their land. Further, the special-aspects doctrine was overruled to the extent that it departed from the anticipation-of-harm standard in § 343A of the Second Restatement. Rather than conduct a narrow analysis of whether an obvious danger is “effectively unavoidable” or poses an “unreasonable risk of severe harm,” the fact-finder should consider whether the possessor should anticipate the harm despite such obviousness, and it should do so in connection with its analysis of whether the land possessor breached their duty. In sum, a land possessor owes a duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land. If the plaintiff establishes that the land possessor owed plaintiff a duty, the next step in the inquiry is whether there was a breach of that duty. As part of the breach inquiry, the fact-finder may consider, among other things, whether the condition was open and obvious and whether, despite its open and obvious nature, the land possessor should have anticipated harm to the invitee. If breach is shown, as well as causation and harm, then the jury should consider the plaintiff’s comparative fault and reduce the plaintiff’s damages accordingly. A determination of the plaintiff’s comparative fault may also require consideration of the open and obvious nature of the hazard and the plaintiff’s choice to confront it.
Court of Appeals judgments reversed, and cases remanded for further proceedings.
Justice BERNSTEIN, concurring, wrote separately to suggest that the Court consider how the open and obvious danger test ought to apply to people with disabilities, particularly vision impairments, given that certain conditions of the land that might be appreciated by a reasonably prudent nondisabled person might not be appreciated by a reasonably prudent blind or otherwise disabled person. He noted that the Court had never fully explored how the open and obvious danger doctrine should be applied to people with disabilities and instead had held that premises-liability actions do not allow the fact-finder to consider a plaintiff’s objective characteristics. In the absence of clear direction from this Court, several unpublished Court of Appeals decisions had concluded that a plaintiff’s disabilities do not alter the open and obvious danger analysis. Thus, this state’s caselaw has placed disabled people at a disadvantage compared to their nondisabled counterparts. Justice BERNSTEIN expressed the hope that, as the Court continued to shift its
Justice ZAHRA, dissenting, agreed with Justice VIVIANO that § 343A of the Second Restatement of Torts constituted the appropriate standard for analyzing the duty element of a negligence action based on premises liability and that the special-aspects doctrine was simply an application of the Restatement. He wrote to clarify that this Court was not required to adopt any aspect of any version of the Restatement of Torts, particularly in light of the American Law Institute’s movement away from treating its Restatements of the Law as summaries of particular areas of the common law and toward advocating for changes in the law. He stated that Lugo’s special-aspects exception from the general rule that open and obvious dangers do not give rise to liability could be understood as consistent with § 343A of the Second Restatement in that even an open and obvious condition remains unreasonable, and thus a special aspect, where the possessor should anticipate the harm from that condition despite its obviousness. He also wrote separately to emphasize that, even under this Second Restatement approach, the open and obvious danger doctrine, including the special-aspects exception, should remain focused on the objective nature of the condition of the land rather than an individual plaintiff’s ability or desire to avoid a dangerous condition, given that the nature of a readily observable condition does not change on the basis of a plaintiff’s personal obligations or responsibilities. He further stated that the majority opinion failed to persuasively show why jurisprudential principles of stare decisis should be ignored and decades of caselaw disregarded. He also echoed Justice VIVIANO’s concerns that the majority’s ruling would expand liability and destabilize Michigan’s negligence law.
Justice VIVIANO, joined by Justice ZAHRA, dissenting, disagreed with the majority’s decision to do away with what he described as a commonsense rule that has served Michiganders since the nineteenth century. He stated that the open and obvious danger doctrine was premised on the straightforward notion that, as a general rule, those who possess real property need not rectify hazards on their property that are easy for others to see and avoid, such as plainly visible snow or ice, because the common law has long treated the scope of a land possessor’s duty as limited to those harms that are foreseeable. Given the nature of open and obvious conditions, it was rightly thought that those who enter the property of another would detect such hazards and avoid them if possible, thus rendering any resulting harm from a person’s failure to do so unforeseeable. Justice VIVIANO also stated that the majority misleadingly suggested that this Court’s caselaw was unclear whether the open and obvious danger doctrine was part of the duty element. He stated that the majority largely ignored the Court’s repeated statements that the doctrine was part of duty. He further stated that the Court’s precedent had addressed and rejected the arguments the majority accepted that the adoption of comparative negligence affected the application of the open and obvious danger doctrine. He further stated that the majority ignored this Court’s caselaw holding that the fact-finder had a role in resolving questions about the scope of duty when the doctrine was at issue. Justice VIVIANO expressed concern that, after the majority’s decision, all those who possessed real property in Michigan would have to immediately rectify obvious hazards on their land to avoid being subject to civil liability. He stated that the majority had done away with any meaningful conception of the element of duty by relying on flawed rationales and an incomplete and mistaken reading of Michigan caselaw, particularly with regard to the effect of the shift from contributory to comparative negligence on the open and
AHLAM KANDIL-ELSAYED, Plaintiff-Appellant, v F & E OIL, INC., Defendant-Appellee. RENEE PINSKY and DAVID PINSKY, Plaintiffs-Appellants, v KROGER CO. OF MICHIGAN, Defendant-Appellee.
No. 162907, No. 163430
Supreme Court of Michigan
FILED July 28, 2023
CLEMENT, C.J.
Under the new framework announced today, we conclude that while in each case the defendant owed the injured plaintiff a duty of care, genuine issues of material fact remain as to whether they breached that duty and, if so, whether the plaintiffs were comparatively at fault such that their damages must be reduced. Therefore, we reverse the judgment of the Court of Appeals affirming the trial court’s grant of summary disposition in both cases and remand for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
A. KANDIL-ELSAYED v F & E OIL, INC
The plaintiff, Ahlam Kandil-Elsayed, stopped for gas at a gas station operated by the defendant, F & E Oil, Inc., on a snowy evening. She parked at the pump and began
The plaintiff filed a negligence action against the defendant based on premises liability, arguing that the snow and ice constituted a dangerous condition on the defendant’s premises. The defendant moved for summary disposition under MCR 2.116(C)(10), arguing that the condition was open and obvious and contained no special aspects; therefore, it did not owe the plaintiff a duty of care. In response, while the plaintiff conceded that the condition was open and obvious, she argued that it was effectively unavoidable and that therefore the defendant still owed her a duty of care. The trial court granted summary disposition to the defendant and the plaintiff appealed. The Court of Appeals affirmed. Kandil-Elsayed v F & E Oil, Inc, unpublished per curiam opinion of the Court of Appeals, issued March 11, 2021 (Docket No. 350220).
The Court of Appeals agreed with the trial court that no genuine issue of material fact remained as to whether the snow and ice were effectively unavoidable. Id. at 1. Because the parties agreed that the plaintiff was an invitee, the panel noted that the defendant owed her a duty “ ‘to exercise reasonable care to protect [her] from an unreasonable risk of harm caused by a dangerous condition on the land.’ ” Id. at 2, quoting Lugo, 464 Mich at 516. And because the parties agreed that the danger was open and
The plaintiff argued that the condition was effectively unavoidable, i.e., “ ‘one that a person [was] required to confront under the circumstances.’ ” Kandil-Elsayed, unpub op at 2, quoting Hoffner v Lanctoe, 492 Mich 450, 472; 821 NW2d 88 (2012). The panel disagreed that the plaintiff was required to confront the snow and ice, concluding that the hazard was not effectively unavoidable. Id. It noted that the plaintiff admitted she had chosen to confront the hazard instead of simply leaving the gas station and going elsewhere, or perhaps calling the attendant in the building to come out and assist her. Id.
The plaintiff then sought leave to appeal in this Court, and we ordered oral argument on the application to address three issues:
(1) whether there was a question of fact concerning whether the parking lot constituted an effectively unavoidable condition; (2) whether Lugo . . . is consistent with Michigan’s comparative negligence framework; and if not, (3) which approach the Court should adopt for analyzing premises liability cases under a comparative negligence framework. [Kandil-Elsayed v F & E Oil, Inc, 509 Mich 857 (2022) (citations omitted).]
B. PINSKY v KROGER CO OF MICH
The plaintiff, Renee Pinsky, was shopping with her husband at a grocery store owned by Kroger Company of Michigan when she tripped, fell, and injured herself. At the time of the accident, she was checking out and realized that she had accidentally selected an open bag of flour. The clerk ringing up her groceries told the plaintiff that she could go
The adjacent lane was wider, with a checkout counter on one side and a cigarette display case on the other. Unbeknownst to the plaintiff, an employee had strung a thin cable from the checkout counter to a two-tier wire basket placed in the middle of the lane to indicate that it was closed. Both the top and bottom wire baskets had baby formula in them, and there was a display sign attached to the top basket. The parties dispute the precise placement and height of the cable at the time of injury. As the plaintiff turned to head back into the store, she tripped over the cable and fell. The plaintiff testified that she was looking forward into the store at the time and did not notice the cable. In her deposition, she admitted that the cable was visible in the postaccident photographs.
The plaintiffs filed a premises-liability negligence action against the defendant. At the close of discovery, the defendant moved for summary disposition under MCR 2.116(C)(10), arguing that because the hazard was open and obvious and no special aspects were present, it owed no duty to the plaintiff. The trial court denied the motion, concluding that issues of fact remained. The defendant then applied for leave to appeal in the Court of Appeals, which granted leave and reversed the trial court. Pinsky v Kroger Co of Mich, unpublished per curiam opinion of the Court of Appeals, issued May 27, 2021 (Docket No. 351025).
The Court of Appeals first held that the cable was open and obvious as a matter of law, reversing the trial court’s denial of the defendant’s motion for summary disposition. Id. at 2. The panel explained that determining whether a danger was open and obvious required asking “whether the hazard was observable to the average, casual observer,” not
Next, the Court of Appeals concluded that the cable was not unreasonably dangerous as a matter of law. Id. It explained that a condition is unreasonably dangerous “if it pose[s] ‘a substantial risk of death or severe injury.’ ” Id., quoting Lugo, 464 Mich at 518. Because “[a] checkout lane closed by a cable is an everyday occurrence” that does not create “an unreasonable risk of severe harm,” it was not unreasonably dangerous. Id. Having concluded that the cable was open and obvious and presented no special aspects, the panel held the defendant was entitled to summary disposition.
The plaintiffs sought leave to appeal here, and we ordered oral argument on the application to address whether:
(1) there is a question of fact concerning whether the cable used to close off the checkout lane was open and obvious; (2) there is a question of fact concerning whether the condition was unreasonably dangerous; (3) under Estate of Livings v Sage’s Investment Group, LLC, 507 Mich 328 (2021), Lugo . . . , and 2 Restatement Torts, 2d, § 343A, the open and obvious doctrine does not preclude relief where a land possessor should anticipate the harm; and (4) liability should be precluded in Michigan even if the danger posed by a condition on land is open and obvious without special aspects as defined by Lugo, or whether the open and obvious nature of a condition should be a consideration for the jury in assessing the comparative fault of
the parties as set forth in the Restatement Torts, 3d. [Pinsky v Kroger Co of Mich, 509 Mich 954, 954-955 (2022).]
II. STANDARD OF REVIEW
“ ‘We review de novo a trial court’s decision on a motion for summary disposition.’ ” Mecosta Co Med Ctr v Metro Group Prop & Cas Ins Co, 509 Mich 276, 282; 938 NW2d 401 (2022), quoting Meemic Ins Co v Fortson, 506 Mich 287, 296; 954 NW2d 115 (2020). This Court also “ ‘review[s] de novo the interpretation of a common-law doctrine.’ ” Mecosta, 509 Mich at 282, quoting Bertin v Mann, 502 Mich 603, 608; 918 NW2d 707 (2018).
“A motion under MCR 2.116(C)(10) tests the factual sufficiency of a complaint.” American Civil Liberties Union of Mich v Calhoun Co Sheriff’s Office, 509 Mich 1, 9; 938 NW2d 300 (2022). A trial court “ ‘considers affidavits, pleadings, depositions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion.’ ” Id., quoting Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). A court’s role at the summary disposition stage is narrow; “[i]n its review of the evidence, the court cannot make findings of fact.” Doster v Covenant Med Ctr, Inc, 509 Mich 910, 911 (2022). Only “ ‘[w]here the proffered evidence fails to establish a genuine issue regarding any material fact’ ” is the moving party “ ‘entitled to a judgment as a matter of law.’ ” American Civil Liberties Union, 509 Mich at 9, quoting Maiden, 461 Mich at 120. “There is a genuine issue of material fact when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).
A. THE BASIC CONTOURS OF DUTY AND BREACH
All negligence actions, including those based on premises liability, require a plaintiff to prove four essential elements: duty, breach, causation, and harm. The first element, duty, “is essentially a question whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor’s part for the benefit of the injured person.” Simonds v Tibbitts, 165 Mich App 480, 483; 419 NW2d 5 (1987). Beyond the relationship between the parties, courts consider additional facts to determine whether there is a duty, including: “(1) foreseeability of the harm, (2) degree of certainty of injury, (3) closeness of connection between the conduct and injury, (4) moral blame attached to the conduct, (5) policy of preventing future harm, and (6) the burdens and consequences of imposing a duty and the resulting liability for breach.” Rowland v Independence Village of Oxford, LLC, 509 Mich 992, 992 (2022), citing Valcaniant v Detroit Edison Co, 470 Mich 82, 86; 679 NW2d 689 (2004). Overall, duty is “ ‘an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.’ ” Buczkowski v McKay, 441 Mich 96, 100-101; 490 NW2d 330 (1992), quoting Prosser & Keeton, Torts (5th ed), § 53, p 358.1
Land possessors share a special relationship with invitees that generates “an affirmative duty to protect.” Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 499; 418 NW2d 381 (1988). It is the social policy of this state that, given this special relationship, “an invitee is entitled to the highest level of protection under premises liability law.” Stitt, 463 Mich at 597. Land possessors owe a duty “to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land.” Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185 (1995).
It is well settled in Michigan that “the question whether the defendant owes an actionable legal duty to the plaintiff is one of law which the court decides.” In re Certified Question from the Fourteenth Dist Court of Appeals of Texas, 479 Mich 498, 504; 740 NW2d 206 (2007), quoting Friedman v Dozorc, 412 Mich 1, 22; 312 NW2d 585 (1981). And, in contrast, the question of breach—“whether defendants’ conduct in the particular case is below the general standard of care”—is a question of fact for the jury. Rowland, 509 Mich 992, quoting Clark v Dalman, 379 Mich 251, 260-261; 150 NW2d 755 (1967).2
B. PREMISES LIABILITY AND THE SHIFT TO COMPARATIVE FAULT
Understanding the development of and interaction between premises liability and comparative fault is key to understanding these cases. Simply put, Michigan’s premises-liability jurisprudence cannot be properly understood without a coordinate analysis of the shift from contributory negligence to comparative fault in this state.
1. THE CONTRIBUTORY-NEGLIGENCE ERA
Michigan, like many other jurisdictions, once recognized the defensive doctrine of contributory negligence in tort actions. Under a contributory-negligence scheme, where the plaintiff’s injury “resulted from the fault or negligence of himself, or where it has resulted from the fault or negligence of both parties,” the plaintiff was completely barred from recovery. Williams v Mich Central R Co, 2 Mich 259, 265 (1851). No matter how small the portion of fault attributed to the plaintiff, it served as an absolute bar to recovery.
The open and obvious nature of a particular danger was relevant to a court’s assessment of whether the plaintiff was contributorily negligent. See Leary v Houghton Co Traction Co, 171 Mich 365, 370; 137 NW 225 (1912) (“[I]f the defect or danger is visible and obvious, the failure of a person to discover and avoid it amounts to contributory negligence.”) (quotation marks and citation omitted). To determine whether a danger was open and obvious, courts asked whether the plaintiff was “bound by [their own] knowledge to anticipate” a danger. Boylen v Berkey & Gay Furniture Co, 260 Mich 211, 219; 244 NW 451 (1932).
Goodman v Theatre Parking, Inc, 286 Mich 80; 281 NW 545 (1938), provides a simple illustration of these ideas in context. The plaintiff, an invitee, had been parking his car in the defendant’s lot for years. Id. at 81. One day, when exiting the lot, he stepped on a cinder and injured himself. Id. The Goodman Court concluded the plaintiff could not recover because “[i]f the cinder was as large as claimed by plaintiff it was plainly discernable.” Id. at 82. Therefore, “even if defendant was negligent in permitting the cinder to remain upon the lot, plaintiff’s contributory negligence bars recovery.” Id. at 83. As Goodman shows, courts looked to the open and obvious nature of a particular danger to assess whether the plaintiff, in failing to appreciate its dangerousness, was contributorily negligent in confronting it and therefore completely barred from recovery.3
The First Restatement of Torts articulated a multipart standard for assessing when a land possessor may be “subject to liability” for harm to a “business visitor[],” i.e., someone closely aligned with the modern definition of an invitee. 2 Restatement Torts, § 343, p 938. It stated in full:
A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he
(a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and
(b) has no reason to believe that they will discover the condition or realize the risk involved therein, and
(c) invites or permits them to enter or remain upon the land without exercising reasonable care
(i) to make the condition reasonably safe, or
(ii) to give a warning adequate to enable them to avoid the harm without relinquishing any of the services which they are entitled to receive, if the possessor is a public utility. [Id. at 938-939.]
Michigan courts relied on § 343 of the First Restatement “[a]s far back as 1938.” Livings, 507 Mich at 343; see also id. at n 9 (collecting cases). Specifically, courts relied on § 343 to conclude that a defendant was not subject to liability because a particular condition did not constitute an “unreasonable risk.” See, e.g., Nash v Lewis, 352 Mich 488, 490, 492; 90 NW2d 480 (1958); Zeglowski v Polish Army Veterans Ass’n of Mich, Inc, 363 Mich 583, 586; 110 NW2d 578 (1961). And courts also relied on § 343 to assess whether a defendant was not subject to liability because a business visitor should have “discover[ed] the condition or realize[d] the risk involved within,” in other words, because the visitor was contributorily negligent. See, e.g., Spear v Wineman, 335 Mich 287, 290; 55 NW2d 833 (1952); Goodman, 286 Mich at 82-83.
Unfortunately, what neither § 343 of the First Restatement nor the cases relying on it make clear is what portion of the analysis—the rule, the exception, or both—falls under the element of “duty” versus the element of “breach.” The ambiguity originates from the Restatement’s choice to use the phrase “subject to liability.” Liability, after all, is an amalgamation of all the elements of a tort; for a court to hold a defendant “liable” the plaintiff must prove duty, breach, causation, and harm.
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger. [2 Restatement Torts, 2d, § 343, pp 215-216.]
And § 343A states in relevant part:
(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. [Id. at p 218.]
The basic contours of § 343 of the First Restatement remained in place in the Second Restatement’s iteration. A landowner was still “subject to liability” to invitees—a category akin to the earlier “business visitor”—only where a condition “involve[d] an unreasonable risk of harm[.]” 2 Restatement Torts, 2d, § 343(a), p 215. And a landowner was still “not liable” where a danger was “known or obvious” to the invitee, id. at § 343A, p 218, an idea that pulls from the earlier “discover the condition or realize the risk” language from § 343(b) of the First Restatement. The major distinction between the First and Second Restatements pertained to “known or obvious” dangers. Whereas the First Restatement
The Second Restatement used the same ambiguous “subject to liability” language as the First Restatement, meaning that it remained unclear which pieces of its analysis fell under duty or breach—and therefore which aspects of the analysis should be decided by the judge versus the jury. Livings, 507 Mich at 381 (CLEMENT, J., dissenting). And unfortunately, caselaw relying on the Second Restatement has not provided much clarity.
For example, in Quinlivan v Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244, 248; 235 NW2d 732 (1975), the Court addressed what framework to apply when an invitee was injured by the accumulation of snow and ice on a land possessor‘s property. The Court looked to an Alaska Supreme Court decision applying the Second Restatement for guidance. Id., citing Kremer v Carr‘s Food Center, Inc, 462 P2d 747 (Alas, 1969). The Court described Kremer as providing an appropriate definition of “the legal duty owed by the invitor to the invitee.” Quinlivan, 395 Mich at 260. But it quoted favorably from Kremer for the idea that ” ‘[a] jury could have found’ ” that a land possessor ” ‘should have realized that this condition involved an unreasonable risk of harm’ ” that the ” ‘business invitees would not discover or realize’ ” or that the land possessor should otherwise ” ‘anticipate[]’ ” would cause harm. Quinlivan, 395 Mich at 259, quoting Kremer, 462 P2d at 749. This language suggests that the Court believed at least some of the analysis under
2. THE ADVENT OF COMPARATIVE FAULT
In Placek v Sterling Hts, 405 Mich 638, 679; 275 NW2d 511 (1979), the Court abolished the doctrine of contributory negligence and replaced it with our modern scheme of comparative fault, finding it to be a more “just and equitable doctrine.” The Court explained that since its inception, “the doctrine of contributory negligence has caused substantial injustice . . . .” Id. at 652. Commentators had long criticized the contributory-negligence rule for ” ‘visit[ing] the entire loss caused by the fault of two parties on one of them alone . . . .’ ” Kirby v Larson, 400 Mich 585, 622; 256 NW2d 400 (1977), quoting Prosser, Comparative Negligence, 51 Mich L Rev 465, 469 (1953). Worse still, contributory negligence foisted the full responsibility for an injury onto ” ‘the injured plaintiff, least able to bear it, and quite possibly much less at fault than the defendant who goes scot free.’ ” Kirby, 400 Mich at 622, quoting Prosser, 51 Mich L Rev at 469. The Placek Court adopted so-called “pure” comparative fault in Michigan, which attributes percentages of fault to each party and reduces the plaintiff‘s damages on the basis of their own percentage of fault. Id. at 660-662.
Placek represented a radical shift in tort jurisprudence in Michigan. In its wake, it was not clear whether particular aspects of the old contributory-negligence regime, like the open and obvious danger doctrine, survived. Then, in Riddle v McLouth Steel Prods Corp, 440 Mich 85; 485 NW2d 676 (1992), the Court directly addressed the interaction between that doctrine and comparative fault. Riddle involved an invitee who slipped on a puddle
But this Court disagreed, explaining that “[t]he adoption of comparative negligence in Michigan [did] not abrogate the necessity of an initial finding that the premises owner owed a duty to invitees.” Riddle, 440 Mich at 95. The two doctrines, in the Court‘s view, were mutually exclusive, because “[a] negligence action may only be maintained if a legal duty exists” in the first place. Id. at 96. Therefore, the Court concluded that only once a duty is established does it become relevant whether a plaintiff was contributorily or comparatively at fault.
In Riddle, ambiguity and disagreement continued over which pieces of the
Justice LEVIN dissented, joined by then Chief Justice MICHAEL CAVANAGH, arguing that not every piece of
Thus, where it is said that “no duty” is owed by a particular defendant, in the sense that negligence or fault of the plaintiff contributed to the harm in a particular instance, or that a danger is open or obvious because of the plaintiff‘s subjective knowledge of the danger, comparative negligence would indeed abrogate the “no duty” rule because a plaintiff‘s contributory negligence does not bar recovery and a decision to encounter a dangerous
condition despite subjective knowledge of the peril is relevant in deciding the extent of the plaintiff‘s negligence. Application of comparative negligence principles would then call for the jury to apportion fault between the parties. [Id.]
Put simply, because the majority situated the open and obvious danger doctrine in duty, Justice LEVIN contended that it embedded an analysis of the plaintiff‘s own negligence in a threshold inquiry with the potential to cut off liability completely. But under a comparative-fault regime, a plaintiff‘s negligence is decidedly not supposed to cut off all liability. The solution, according to Justice LEVIN, would be to simply move the “open and obvious” analysis of
A few years later, the Court again considered “the issue of the scope of the duty owed” to an invitee in Bertrand, 449 Mich at 609. Chief Justice CAVANAGH, who joined Justice LEVIN‘s dissent in Riddle, authored the majority.5 Like the Riddle majority, the Bertrand majority reiterated that a land possessor owes a duty to ” ‘exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land,’ ” citing
Bertrand‘s treatment of
Shortly after the Bertrand decision, the Legislature codified a modified comparative-fault regime by statute. Under
In 2001, the Court again stepped in to address the appropriate legal framework to apply when an invitee was injured on a land possessor‘s property in Lugo v Ameritech Corp, Inc, 464 Mich 512. While walking across the defendant‘s parking lot, the plaintiff “apparently stepped in a pothole and fell.” Id. at 514. The defendant successfully moved for summary disposition under
Once again, the Lugo majority reaffirmed the general duty owed to an invitee to “exercise reasonable care to protect . . . from an unreasonable risk of harm caused by a dangerous condition on the land.” Id. But, unlike the somewhat ambiguous analysis in Riddle and Bertrand, the Lugo majority squarely situated the open and obvious danger doctrine in the element of duty, explaining that the doctrine “should not be viewed as some type of ‘exception’ to the duty generally owed invitees, but rather as an integral part of the definition of that duty.” Id.
Next, the Lugo majority explained that while a land possessor generally “is not required to protect an invitee from open and obvious dangers,” if there are “special aspects of a condition [that] make even an open and obvious risk unreasonably dangerous,” then the possessor “has a duty to undertake reasonable precautions to protect invitees from that risk.” Id. at 517. The majority made two major moves with this analysis. First, it restricted the exceptions to the open and obvious danger doctrine to so-called “special aspects.” Second, it clarified that whether these “special aspects” exist in any given case is a question
To define “special aspects,” the majority looked to Bertrand. Bertrand involved plaintiffs injured on steps. The Bertrand majority had reasoned that while ” ‘the danger of tripping and falling on a step is generally open and obvious, . . . there may be special aspects of these particular steps that make the risk of harm unreasonable . . . .’ ” Id., quoting Bertrand, 449 Mich at 614 (emphasis in Lugo). Lugo universalized this idea of “special aspects” to apply in all premises-liability cases, not just cases about steps and stairs.
The Lugo majority then provided what it called “illustrations” of special aspects. First, it proposed that “a commercial building with only one exit for the general public where the floor is covered with standing water” would present a special aspect because “the open and obvious condition is effectively unavoidable.” Id. at 518. Second, it suggested that “an unguarded thirty foot deep pit in the middle of a parking lot” would present a special aspect because, while open and obvious, “this situation would present such a substantial risk of death or severe injury . . . .” Id. While these illustrations appear to come from left field, the majority explained that it intended the approach to be “consistent with § 343A of the [Second] Restatement” because “there must be something out of the ordinary, in other words, special, about a particular open and obvious danger in order for a premises possessor to be expected to anticipate harm from that condition.” Id. at 525.
Justice CAVANAGH, joined by Justice KELLY, concurred in the result but took issue with the majority‘s analysis in two respects. Id. at 527 (CAVANAGH, J., concurring). First,
Second, he took issue with the majority‘s “special aspects” concept, which also drew from his own analysis in Bertrand. Id. at 541-542. Bertrand, he explained, “in no way implies that the possessor only has a duty to undertake reasonable precautions to protect his invitees when a condition has special aspects.” Id. at 542. He believed that the special-aspects analysis presented an unnecessary departure from the Second Restatement‘s emphasis on anticipation.8
4. THE POST-LUGO ERA
This Court‘s jurisprudence following Lugo continued to be fractious. In part, it grappled with what some justices saw as an inherent tension between Lugo‘s narrow
In Hoffner v Lanctoe, 492 Mich at 455, the Court addressed the “limited exception” for “effectively unavoidable” conditions. The plaintiff, a member of a gym, was walking into the gym‘s only entrance when she slipped and fell on an icy sidewalk. Id. at 456-457. The Hoffner majority explained that for the condition to be considered effectively unavoidable, it “must be unavoidable or inescapable in effect or for all practical purposes,” meaning that the plaintiff “must be required or compelled to confront a dangerous hazard” and have no choice to avoid it. Id. at 468-469. Because the plaintiff “was not forced to confront the risk,” the majority concluded that the open and obvious danger was not effectively unavoidable and the land possessor owed her no duty. Id. at 473.
The Hoffner majority, like the Lugo majority, argued that the special-aspects doctrine was entirely consistent with the Second Restatement. Id. at 479. But Justice CAVANAGH disagreed, characterizing the decision as “yet another unwarranted departure” from precedent relying on the Second Restatement. Id. at 483 (CAVANAGH, J., dissenting). He criticized the special-aspects doctrine both for failing to conform with
There also continued to be disagreement over which aspects of the analysis ought to be considered as part of duty or breach. In her dissent, Justice HATHAWAY added that because the special-aspects analysis was a part of duty, not breach, it “diminishes the role of juries in favor of judicial fact-finding, in direct contravention of the specific mandate of the Michigan Constitution.” Id. at 495 (HATHAWAY, J., dissenting). She agreed with
After Hoffner, the Third Restatement of Torts announced a radical new approach to premises liability.
Subject to § 52,9 a land possessor owes a duty of reasonable care to entrants on the land with regard to:
(a) conduct by the land possessor that creates risks to entrants on the land;
(b) artificial conditions on the land that pose risks to entrants on the land;
(c) natural conditions on the land that pose risks to entrants on the land; and
(d) other risks to entrants on the land when any of the affirmative duties provided in Chapter 7 is applicable. [
Id. at p 242. ]
The commentary accompanying § 51 directly addressed the open and obvious danger doctrine, explaining that “the fact that a dangerous condition is open and obvious bears on the assessment of whether reasonable care was employed, but does not pretermit the land possessor‘s liability.”
The Third Restatement changed several aspects of the older approach embodied in
While some justices have suggested that the Court consider adopting the Third Restatement, because a majority has not yet embraced it, the Second Restatement approach remains the governing approach in Michigan. See Livings, 507 Mich at 360-361 (MCCORMACK, C.J., concurring) (“[P]erhaps it is time for this Court to consider the Third Restatement‘s approach, which aligns more neatly with comparative negligence principles by imposing a blanket reasonable duty of care standard.“).
Not everyone agreed with the Court‘s continued endorsement of the special-aspects doctrine. See id. at 350 (MCCORMACK, C.J., concurring) (“I write separately . . . to express my reservations about the continued reliance on the judicially created special aspects doctrine.“). Then Chief Justice MCCORMACK argued that while the special-aspects doctrine “may not appear to deviate in any important way from the Second Restatement approach[,] . . . the scheme it created has little basis in the language of the Restatement or
Which brings us to today, when we conclude that Lugo, which established our current framework for addressing a land possessor‘s duty of care, was wrongly decided in several respects and must be overruled.
IV. ANALYSIS
A. STARE DECISIS
Reaching the conclusion that Lugo must be overruled requires an analysis of whether it was wrongly decided, “whether [it] defies ‘practical workability,’ whether reliance interests would work an undue hardship, and whether changes in the law or facts no longer justify the questioned decision.” Robinson v Detroit, 462 Mich 439, 464; 613 NW2d 307 (2000).
First, we conclude Lugo was wrongly decided in two respects. First, the Lugo Court erred by situating the open and obvious danger doctrine and any exceptions to it in duty. Before Lugo, there was ambiguity as to whether all or some of the analysis under
Duty is a threshold question of law for the court to decide before a case can get to a jury. In re Certified Question, 479 Mich at 504. Therefore, where there is no duty owed to a particular plaintiff, the case is dismissed and the plaintiff does not proceed to trial, let alone recover damages for any injuries sustained. Michigan is a comparative-fault jurisdiction, meaning that it is the policy of our state that when a plaintiff is at fault, it does not bar recovery, but rather reduces the amount of damages they can recover by their percentage of fault.
The test for whether a danger is open and obvious asks “whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection.” Hoffner, 492 Mich at 641. The test is designed to be “an objective standard” that looks only to the ” ‘objective nature of the condition of the premises at issue.’ ” Id., quoting Lugo, 464 Mich at 523-524. But in practice, courts frequently rely on the plaintiff‘s own negligence as a reason to find that a condition was open and obvious.
To reiterate: the open and obvious danger doctrine is objective. We have said so many times. But the problem is that courts, including us, routinely say one thing (it‘s objective) and do another (look to the plaintiff‘s subjective response). Lugo itself provides an example of this. The Lugo majority went out of its way to criticize the trial court for finding that the danger was open and obvious because “the plaintiff ‘was walking along without paying proper attention to the circumstances where she was walking,’ ” explaining that the court should have focused on the objective nature of the condition. Lugo, 464 Mich at 523. But in reaching its own conclusion that the pothole was open and obvious, the Lugo majority noted the plaintiff‘s deposition testimony that she ” ‘wasn‘t looking down’ ” and concluded that she tripped on the pothole because she “failed to notice it.” Id. at 521-522. It‘s hard to parse the difference between these two analyses, given that both refer to the plaintiff‘s own fault in causing the injury.
Situating the “open and obvious” analysis in duty, therefore, poses two problems. First, it puts the judge—not the jury—in charge of deciding an issue that functionally includes an analysis of the plaintiff‘s negligence. But under
Second, Lugo was also wrongly decided in announcing the special-aspects doctrine. At the outset, we note that the relationship between the
It well may be that the intention behind Lugo‘s special-aspects test was to provide just two examples of scenarios in which “the possessor should anticipate harm from a known or obvious danger . . . .”
Moreover, the illustrations provided in Lugo—the standing water in front of a single entrance and the 30-foot-deep pit—have become litmus tests for recovery. If the open and obvious danger does not resemble these scenarios, courts commonly conclude that the land possessor owes no duty.16 Then again, in a small subset of cases, courts have treated Lugo‘s special aspects as mere illustrations of the broader category of scenarios in which a land possessor should anticipate the harm.17 The incongruity in how Lugo is applied generates unfairness, with some courts interpreting special aspects much more narrowly than others.
Then, in Livings, the Court directly quoted an illustration from the Second Restatement to explain that a danger could become effectively unavoidable if an employee had to confront it to enter their workplace for work purposes. Livings, 507 Mich at 340. special aspects can arise.”); O’Donnell v Garasic, 259 Mich App 569, 576; 676 NW2d 213 (2003) (treating the unique features of the sleeping loft from which the plaintiff fell as “special aspects,” even though they did not fit the rigid categories from Lugo).
Moreover, Lugo, Hoffner, and Livings all cited the plaintiff’s own choices to explain why “special aspects” were or were not present. And yet, all three claimed that the special-aspects doctrine centered only on the nature of the condition itself. Case in point, under Hoffner and Livings, assuming hypothetically that a gym had a single, ice-covered entrance, the “condition” would be transformed into an “effectively unavoidable” condition that would subject the defendant to liability only when an employee of the gym, rather than a patron, approached. This is a far cry from the stability that Lugo intended. See Livings, 507 Mich at 364-365 (ZAHRA, J., dissenting); Lugo, 464 Mich at 525-526 (“[W]e believe that our approach, focusing on the existence or absence of special aspects of an open and obvious danger, will [better] guide the trial courts in considering whether particular open and obvious conditions posed an unreasonable risk of harm . . . .”).
In sum, we conclude that Lugo was wrongly decided because, by concluding that the open and obvious danger doctrine and any exceptions to it are a part of the duty analysis, it runs afoul of Michigan’s commitment to comparative fault. And by announcing the special-aspects test, Lugo created confusion as to what the exceptions to the open and obvious danger doctrine would be. While the doctrine may have been intended simply to illustrate the broader anticipation standard, it has not functioned that way in practice.
Next, we conclude that Lugo defies practical workability. A decision defies practical workability when it generates confusion among courts trying to apply it and sows division. See Devillers v Auto Club Ins Ass’n, 473 Mich 562, 585-586; 702 NW2d 539 (2005). Lugo itself was a divided decision; the justices disagreed with respect to both
Notably, this Court has even been divided over whether and when Lugo and its progeny need clarification.23 Lugo defies practical workability because it has generated considerable confusion and division.
Next, we must consider whether reliance on Lugo makes it unwise to overrule it. “As to the reliance interest, the Court must ask whether the previous decision has become so embedded, so accepted, so fundamental, to everyone’s expectations that to change it would produce not just readjustments, but practical real-world dislocations.” Robinson, 462 Mich at 466. Where overruling a decision would “produce chaos,” the Court should not do so. Id. at 466 n 26. Lugo has been on the books for a long time—more than 20 years. Practitioners and courts alike have relied on it in thousands of premises-liability cases. But given the uncertainty and division it has generated in our caselaw, it cannot be said to be “so accepted” and “so fundamental” as to create “real-world dislocations” if changed. Id. at 466. The sheer number of appellate decisions applying Lugo, clarifying Lugo, and adjusting Lugo shows that it did not create enough stability to generate a reliance interest strong enough to keep us from reconsidering it today. We therefore disagree with
Finally, there are no changes in the law or facts that either weigh for or against overruling Lugo. But we do note that part of the problem with Lugo, of course, was its own failure to account for a significant change in the law that predated it—the shift to a comparative-fault regime. Overall, we conclude that Lugo should be overruled. It was wrongly decided and has generated a whole host of practical-workability problems. While it has been on the books for more than two decades, it has not created reliance interests strong enough to cut against a decision to overrule it.
B. THE NEW (AND NOT-SO-NEW) FRAMEWORK FOR PREMISES LIABILITY
Today, we begin by reiterating that several aspects of our existing premises-liability jurisprudence remain viable in Michigan. First, we reaffirm the traditional duty owed to invitees: the “duty to exercise reasonable care to protect [them] from an unreasonable risk of harm caused by a dangerous condition of the land.” Williams, 429 Mich at 499. We also hold that the three traditional status-based categories—licensee, invitee, and trespasser—remain, reserving the question of whether to adopt the Third Restatement’s blanket reasonable-care standard for a later time.
The open and obvious nature of a condition remains a relevant inquiry in a premises-liability case. However, to the extent prior cases have held that it should be analyzed as a part of a land possessor’s duty, those cases are overruled. Rather, the open and obvious nature of a danger—i.e., whether it is “reasonable to expect that an average person with
First, the change finds support from caselaw and statutory law articulating Michigan’s shift from contributory negligence to comparative fault. See Placek, 405 Mich at 650;
Second, the shift finds support in the Third Restatement. See 2 Restatement Torts, Third, § 51, comment k, p 251. While we decline to adopt the Third Restatement in its entirety today,25 we find its commentary useful in reaching our conclusion that the open and obvious danger doctrine belongs in breach, not duty. Unlike the First and Second Restatements, which were drafted during the bygone era of contributory negligence, the Third Restatement has a background of comparative fault in mind. With respect to open and obvious dangers, the Third Restatement explains that “[t]he rule that land possessors owe no duty with regard to open and obvious dangers sits more comfortably—if not entirely congruently—with the older rule of contributory negligence as a bar to recovery.” 2 Restatement Torts, 3d, § 51, comment k, p 252. Therefore, the Third Restatement recognizes that “the fact that a dangerous condition is open and obvious bears on the assessment of whether reasonable care was employed, but it does not pretermit the land possessor’s liability.” Id. at p 251. We agree.
Underlying all these principles and rules is the requirement that both the possessors of land and those who come onto it exercise common sense and prudent judgment when confronting hazards on the land. These rules balance a possessor’s ability to exercise control over the premises with the invitees’ obligation to assume personal responsibility to protect themselves from apparent dangers. [Hoffner, 492 Mich at 459-460 (citations omitted).]
See also Bradley v Burdick Hotel Co, 306 Mich 600, 604; 11 NW2d 257 (1943).
We agree with the notion that “landowners are not insurers” and that “both the possessors of land and those who come onto it” must “exercise common sense and prudent judgment when confronting hazards on the land.” Hoffner, 492 Mich at 459. The problem with our current framework, however, is that the analysis of each party’s common sense is imbalanced; while the invitee’s own negligence can cut off liability in full, the land possessor’s cannot. By shifting the open and obvious danger doctrine to breach, it will allow the jury to do just what this Court—and the Legislature—intend: conduct a comparative analysis of each party’s fault.
To summarize, a land possessor owes a “duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land.” Williams, 429 Mich at 499. If the plaintiff establishes that the land possessor owed plaintiff
V. APPLICATION
A. KANDIL-ELSAYED v F & E OIL, INC
We hold that under the framework announced today, questions of material fact remain as to whether the defendant breached its duty. Therefore, the decision granting summary disposition to the defendant is reversed, and the case is remanded for further proceedings. Here, the central facts presented to the court, which are not in dispute, revealed that the plaintiff had stopped for gas on a snowy day and walked across snow-and-ice-covered ground to pay inside. She slipped and fell on the snow. At the time of the
It is undisputed that the plaintiff was an invitee, and therefore the defendant owed “a duty to exercise reasonable care to protect [her] from an unreasonable risk of harm caused by a dangerous condition of the land.” Williams, 429 Mich at 499. Long before Lugo, this Court held that a land possessor owes a duty “to use reasonable care to protect against hazards arising from natural accumulation of ice and snow.” Quinlivan, 395 Mich at 248. The Quinlivan Court applied the same general duty standard we employ today to the specific condition of ice and snow, explaining that such a duty “will require that reasonable measures be taken within a reasonable time after an accumulation of ice and snow to diminish the hazard of the injury to the invitee.” Id. at 261. Applying Quinlivan, we hold that the defendant owed a duty to the plaintiff to take reasonable care to protect against the hazards of the natural accumulation of ice and snow on the property.29
Next, we must ask whether the defendant breached the duty owed to the plaintiff. We conclude that questions of fact remain as to whether the defendant’s failure to address the ice and snow in the parking lot was reasonable. The factual record does not make clear when it began snowing or whether it had stopped snowing when the plaintiff was injured. Indeed, under Lugo, such factual development would have been futile where the open and obvious danger doctrine eliminated the land possessor’s duty. Therefore, it is impossible to know at this stage whether the defendant took “reasonable measures . . . within a
If this case proceeds to trial and a jury concluded that the defendant breached its duty, the jury may reduce the plaintiff’s damages if it concludes that the danger was open and obvious and the plaintiff’s decision to confront it was negligent. Here, the plaintiff’s own testimony about her clear ability to see the snow is relevant, as is the fact that she stated it was well lit at the time. The prevalence of wintry conditions in Michigan more generally is also relevant.
Because several questions of fact remain, we conclude there is insufficient evidence before us to decide whether the defendant breached its duty as a matter of law. Therefore, we reverse the judgment of the Court of Appeals and remand the case to the trial court for further proceedings.
B. PINSKY v KROGER CO OF MICH
Like in Kandil-Elsayed, we hold that questions of fact remain as to whether the defendant breached its duty to the plaintiff. Therefore, we reverse the judgment of the Court of Appeals and remand for further proceedings. The evidence presented shows that the plaintiff, while walking through a grocery store checkout lane toward the store’s aisles, tripped over a thin cable and fell. The cable was strung between an adjoining, closed checkout lane and a two-tier metal display basket with a large poster fastened to the top.
Just as in Kandil-Elsayed, it is undisputed that the plaintiff was an invitee and that the defendant therefore owed her a “duty to exercise reasonable care to protect [her] from an unreasonable risk of harm caused by a dangerous condition of the land.” Williams, 429 Mich at 499. We have previously held that an obstruction in a checkout lane, like the two-tier basket here, constitutes a dangerous condition. See Clark v Kmart Corp, 465 Mich 416, 416, 417; 634 NW2d 347 (2001) (holding that “several loose grapes . . . scattered on the floor” of a checkout lane constituted a dangerous condition). Here, viewing the evidence in a light most favorable to the plaintiffs, we conclude that the defendant owed a duty to protect the plaintiff from the unreasonable risk of harm caused by a dangerous obstruction in the checkout lane.
Next, we must decide whether the defendant breached its duty. We conclude that because questions of fact remain as to breach, summary disposition is unwarranted at this time. The evidence presented at this stage in the proceedings does not establish how low the cable was strung at the time of the accident. The height of the cable is relevant to whether it was open and obvious—i.e., whether “it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection.” Hoffner, 492 Mich at 461. A thin white cable strung at ankle height would be much less visible to an “average person with ordinary intelligence” than, say, a cable strung at waist height. Indeed, given the significantly different interpretation of the factual record in Justice VIVIANO’s dissent, it is clear that reasonable minds could differ as to whether this
VI. CONCLUSION
We conclude that Lugo was wrongly decided and must be overruled. We hold, in accordance with decades of precedent prior to Lugo, that a land possessor owes “a duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land.” Williams, 429 Mich at 499. Lugo’s holding that the open and obvious danger doctrine is relevant to the defendant’s duty is overruled. While the open and obvious nature of a condition, assessed by asking whether “it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon causal inspection,” remains relevant, it is a question of breach and comparative fault, not duty. Hoffner, 492 Mich at 461. Lastly, the special-aspects doctrine is overruled to the extent it is inconsistent with the Second Restatement’s anticipation standard. We hold that instead, when assessing whether a defendant has breached their duty to take reasonable
Although we conclude that the defendants in both Kandil-Elsayed and Pinsky owed a duty to the respective injured plaintiffs, there are genuine issues of fact remaining that are relevant to whether the defendants breached that duty and if so, whether the plaintiffs were comparatively at fault and should have their damages reduced. Therefore, we reverse the judgment of the Court of Appeals in both cases and remand for further proceedings. We do not retain jurisdiction.
Elizabeth T. Clement
Richard H. Bernstein
Megan K. Cavanagh
Elizabeth M. Welch
Kyra H. Bolden
AHLAM KANDIL-ELSAYED, Plaintiff-Appellant, v F & E OIL, INC., Defendant-Appellee. RENEE PINSKY and DAVID PINSKY, Plaintiffs-Appellants, v KROGER CO. OF MICHIGAN, Defendant-Appellee.
No. 162907 | No. 163430
STATE OF MICHIGAN SUPREME COURT
BERNSTEIN, J. (concurring).
To start, I concur in today’s holding that a premises-liability cause of action employs an objective standard to determine whether a danger is open and obvious. That is to say, the inquiry considers the condition of the land. I also recognize that previous courts have often misconstrued this test by considering a plaintiff’s subjective response to the land.
However, in the instance of disability, I believe that the objective characteristics of a plaintiff are both relevant and fair to consider in addition to the condition of the land. Yet this Court has never fully explored how the open and obvious danger doctrine should be applied to people with disabilities. See Sidorowicz v Chicken Shack, Inc, 469 Mich 912 (2003) (CAVANAGH, J., dissenting) (“[W]hat is open and obvious to the sighted is not necessarily open and obvious to the blind . . . . Leave should be granted to explore how this Court’s explanation of the open and obvious doctrine in Lugo v Ameritech Corp, Inc, 464 Mich 512; 692 NW2d 384 (2001), relates to those with disabilities.”). Instead, we have previously explained that premises-liability actions have not allowed the fact-finder
It is no secret that Michigan’s premises-liability jurisprudence has been unnecessarily complicated for far too long. For this reason, it has been quite challenging for courts to engage with the many specific and significant questions that arise from this doctrine. Today, this Court attempts to steer our premises-liability jurisprudence onto a straighter path. However, I remain skeptical that this opinion will place all plaintiffs on an equal playing field. I believe that a jurisprudentially significant question exists as to whether a plaintiff’s disability is a relevant factor in an open and obvious danger analysis. My hope is that, as this Court continues to shift premises-liability jurisprudence to more equitable grounds, we soon take up this salient question and provide clarity for the litigants of our state.
Richard H. Bernstein
AHLAM KANDIL-ELSAYED, Plaintiff-Appellant, v F & E OIL, INC., Defendant-Appellee. RENEE PINSKY and DAVID PINSKY, Plaintiffs-Appellants, v KROGER CO. OF MICHIGAN, Defendant-Appellee.
No. 162907 | No. 163430
STATE OF MICHIGAN SUPREME COURT
ZAHRA, J. (dissenting).
I join Justice VIVIANO’s dissenting opinion, particularly his conclusion that Restatement Torts, 2d, § 343A constitutes “the appropriate standard” for analyzing the duty element of a negligence action based on premises liability and that “the ‘special aspects’ test” to determine whether a danger that is open and obvious nevertheless gives rise to a duty “is simply an application of the Restatement.” I write to clarify that this Court is not required to adopt any aspect of any version of the Restatement of Torts. The American Law Institute’s Restatements of the Law were originally secondary sources of law that were merely intended to summarize particular areas of the common law. More recently,
is no longer merely restating the common law. Rather it is promulgating and advocating for legal dogmas that exist well outside of the legal mainstream, or where there is a lack of clear consensus in state courts. In a growing number of cases, the [American Law Institute] is purporting to restate law that has never been clearly stated in the first place.2
To be clear, although this Court has never adopted the Second Restatement of Torts in full,3 this Court has historically looked to the Second Restatement to provide context to the common law of torts in Michigan. But this Court’s decision to afford some deference to the Second Restatement in our premises-liability law, while not required, is understandable, because that Restatement is more in line with a traditional treatise in that it constitutes a compilation and survey of then-existing law that could be considered by
Moreover, this interpretation constitutes the exact type of cautious clarification that is required of this Court in shaping our common law. A majority of this Court acts abruptly rather than incrementally and cautiously in discarding the Second Restatement test. Worse, notably absent from the majority opinion is any explanation that whatever portion of the Third Restatement adopted by the Court today is consistent with the mores and policies of Michigan, such that it should be adopted. Justice VIVIANO appropriately highlights the likely undesirable consequences that will result from the majority opinion’s “tectonic shift” in our premises-liability law.11
For these same reasons, the majority’s stare decisis analysis is unpersuasive. The majority opinion engages in a self-serving application of the Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000)12 stare decisis factors, piling together citations of dissenting opinions to demonstrate that the law has not been workable. This is folly. By characterizing the open and obvious danger doctrine as part of the duty element, precluding liability where the disputed condition is open and obvious and lacking a special aspect, Lugo and Hoffner v Lanctoe13 have set forth a rule that is predictable and exceedingly workable. And it is a framework that has undoubtedly been relied on by property owners for decades. A majority of this Court simply does not like the current Second Restatement test, but that is not a sufficient basis
I also write separately to emphasize that, even under this Second Restatement approach, our open and obvious danger doctrine, including the special-aspects exception, should remain focused on the objective nature of the condition of the land. As I stated in Livings, “in applying the special-aspects doctrine, this Court has consistently and narrowly focused on the objective characteristics of the condition on the premises itself, not on the characteristics and considerations unique to the particular plaintiff encountering that condition.”15 This is the proper focus because “[t]he nature of a readily observable condition does not change on the basis of a plaintiff’s personal obligations or
I disagreed with the Court’s adoption of the specific illustration at issue in Livings,18 because that illustration “is concerned with an individual plaintiff’s ability or desire to avoid a dangerous condition” rather than the characteristics of the supposed dangerous condition itself.19 For the same reasons, I would decline to adopt any other portion of the
In sum, I agree with Justice VIVIANO’s interpretation of our longstanding special-aspects exception. I would continue to focus on the objective nature of the pertinent condition on the premises when applying the open and obvious danger doctrine and its special-aspects exception. Moreover, the majority opinion fails to persuasively show why jurisprudential principles of stare decisis should be ignored and decades of caselaw disregarded. I fully echo Justice VIVIANO’s concerns that the majority opinion’s dismantling of our duty requirement will expand liability and destabilize our negligence law. For these reasons, I dissent.
Brian K. Zahra
AHLAM KANDIL-ELSAYED, Plaintiff-Appellant, v F & E OIL, INC., Defendant-Appellee.
No. 162907
RENEE PINSKY and DAVID PINSKY, Plaintiffs-Appellants, v KROGER CO. OF MICHIGAN, Defendant-Appellee.
No. 163430
STATE OF MICHIGAN SUPREME COURT
VIVIANO, J. (dissenting).
The majority’s unprecedented decision sweeps away a commonsense rule that has served Michiganders since the nineteenth century. The open and obvious doctrine is premised on the straightforward notion that, as a general rule, those who possess real property need not rectify hazards on their property that are easy for others to see and avoid, such as plainly visible snow or ice. Given the nature of such conditions, it was rightly thought that those who enter the property of another would detect obvious hazards and avoid them if possible. After today, however, all those who possess real property in Michigan can no longer rely on this commonsense notion. Instead, obvious hazards on the
This transformation of our premises liability law practically does away with any meaningful conception of duty, a core element in these cases and in negligence actions more generally. And the majority does this by relying on flawed rationales, including an incomplete and mistaken reading of our caselaw. I would instead confirm what we have said time and again: §§ 343 and 343A of the Second Restatement of Torts establish the test for our open and obvious doctrine. While our recent caselaw discusses special aspects as exceptions to the general “no duty” rule for open and obvious hazards, the special aspects are best understood as examples of this general standard from the Second Restatement. Under that standard—or nearly any reasonable standard—plaintiffs in the present cases would lose. It is only by the majority’s fundamental recasting of our premises liability law that life could be breathed into these otherwise moribund cases. For these reasons, I strongly dissent.
I. DUTY
These cases involve the first and perhaps most fundamental element of a negligence action: a duty owed by the defendant to the plaintiff. Without such a duty, even negligent conduct cannot give rise to liability. See Clark v Dalman, 379 Mich 251, 260-261; 150 NW2d 755 (1967) (“Actionable negligence presupposes the existence of a legal
In so holding, we followed at least a century’s worth of precedent, including the principles set forth in the seminal case of Palsgraf v Long Island R Co, 248 NY 339; 162 NE 99 (1928). There, railroad employees jostled a passenger while trying to help him board a moving train, causing him to drop his unmarked package, which contained fireworks. Id. at 340-341. The fireworks exploded, causing a scale to tip over onto the plaintiff, who was about 10 feet away on the platform. Id. at 341. Writing for the majority, then Chief Judge Cardozo concluded that the defendant railroad company owed no duty to
This has been blackletter law across the country at least since Palsgraf, if not before. See Cardi, The Hidden Legacy of Palsgraf: Modern Duty Law in a Microcosm, 91 BU L Rev 1873, 1884 (2011) (noting that out of the 43 jurisdictions with a multifactor duty test like ours, only five appear not to consider foreseeability, while the rest do and “often cite[] [foreseeability] as the most important factor in duty”); see also 2 Restatement Torts, 2d, § 281, comment c, pp 4-5 (“In order for the actor to be negligent with respect to the other, his conduct must create a recognizable risk of harm to the other individually, or to a class of persons. . . .”); id., comment g, p 7 (“In determining whether a particular harm or hazard is within the scope of the risk created by the actor’s conduct, ‘risk’ must be understood in the broader sense of including all of those hazards and consequences which are to be regarded as normal and ordinary.”).
II. OPEN AND OBVIOUS DANGERS
In this context, the open and obvious doctrine fits nicely, as it reflects the general lack of any foreseeable risks of harm from open and obvious hazards. To invitees such as plaintiffs here, we have determined that “a possessor of land owes a duty to exercise reasonable care to protect invitees from dangerous conditions on the land.” Livings, 507 Mich at 337. This duty has been based, in part, on the possessor’s superior knowledge of
A primary rationale for the doctrine is that the “the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them . . . .” Riddle, 440 Mich at 96. In other words, because the invitee should find the hazards, it is not foreseeable that he or she will be harmed by them.1 In addition, when faced with an open or obvious danger, the defendant possessing the land is not generally in any better position to know of the hazard than is the plaintiff invitee. See Kentucky River Med Ctr v McIntosh, 319 SW3d 385, 390 (Ky, 2010) (noting the common view that there is no duty when a danger is open and obvious because “the basis for placing a duty on the land possessor—his superior knowledge—does not exist”).
Despite the open and obvious doctrine’s clear doctrinal fit within our jurisprudence on the duty element, the majority suggests that the doctrine stemmed from the now-discarded rule of contributory negligence and that the doctrine only recently, and fitfully, came to be seen as part of the duty element. Under a contributory negligence regime, a plaintiff was barred from recovering if his or her own negligence contributed to the injury. See Nezworski v Mazanec, 301 Mich 43, 62; 2 NW2d 912 (1942). The majority essentially reasons, in part, that because the open and obvious doctrine can be thought of as relating to contributory negligence, and because both this Court and the Legislature have replaced that rule with a comparative negligence regime under which a plaintiff is not automatically barred from recovery by his or her negligence, it follows that the open and obvious doctrine must also be discarded.
The majority’s characterization of the caselaw is incomplete at best. To be sure, in our very early caselaw the obviousness of a hazard was sometimes discussed in relation to the plaintiff’s contributory negligence. For example, as the majority discusses, we held in Goodman v Theatre Parking, Inc, 286 Mich 80, 82-83; 281 NW 545 (1938), that the obviousness of the hazard leading to injury meant that the plaintiff was negligent in confronting it and that recovery was thus barred by contributory negligence. Sometimes we suggested that the obviousness of the danger meant that the defendant was not negligent, i.e., did not breach the relevant standard of care, in failing to warn a plaintiff of it. See, e.g., Hollingshead v Detroit, GH & M R Co, 181 Mich 547; 148 NW 171 (1914).
But we also often treated the obviousness of the hazard as applicable to the duty element—and to foreseeability in particular. In 1882, Justice COOLEY wrote for the Court
Similarly, in Batterson v Chicago & Grand Trunk R Co, 53 Mich 125; 18 NW 584 (1884), we suggested the obviousness of a hazard related to the defendant’s duty of care.2 There, a railroad worker was injured when standing on unballasted railroad ties; he sued the railway and claimed that the injury would have been prevented if the track had been graded and ballasted. Id. at 126-127. We noted our earlier conclusion in the case “that such an open and obvious break in the surface of the ground could not be regarded as involving the same duty in an employer towards his men, as one which was known to him [i.e., the employer,] but not likely to be known to them.” Id. at 127. We then stated that the plaintiff knew of the condition and should have expected the risk it posed. Id. at 129. Casting the case in terms of duty, we said that the defendant’s duty to the plaintiff
was not to see that he actually did know what the exact condition was at this point. They had a right to rest on the probability that any one would know what was generally to be seen by his own observation, or by information
from those who were on the spot working with him, and who might fairly be expected to do their duty. [Id.]
A similar case is Caniff v Blanchard Navigation Co, 66 Mich 638, 639-640; 33 NW 744 (1887), in which a sailor sued a boat owner after falling through an open hatchway. We stated that “no negligence can be imputed to the defendant in leaving the hatch off from the hatchway” because the accident arose from the plaintiff’s own carelessness. Id. at 644. In the dispositive portion of the opinion, however, we indicated that the case came down to the defendant’s “duty.” We repeated the rule from Samuelson that the defendant’s duty did not extend to hazards of which the plaintiff was aware. Id. at 647. We then said that the rule establishing a duty in these circumstances “has no application to a case where a person who from his experience, through many years, in sailing a vessel, knows that it is customary to leave the hatchways of vessels open while lying in port, and whom observation teaches that they are liable to be open rather than closed, and are sources of danger which he must avoid at his peril.” Id.; see also Walker v Ginsburg, 244 Mich 568, 569; 222 NW 192 (1928) (“That plaintiff might fall, and that the bar might slip were dangers so obvious that defendants had no duty to warn of them.”).
Thus, while our early caselaw on obvious dangers sometimes referred to contributory negligence, it also relied on the concept of duty. In a similar manner, the First and Second Restatements of Torts left the basis for the open and obvious doctrine somewhat unclear. Neither specifically discussed the underlying theory of the doctrine, leaving courts to variously relate it to duty, contributory negligence, and even whether the defendant breached its duty. See 2 Restatement Torts, § 343;3 2 Restatement Torts, 2d,
A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will discover the condition or realize the risk involved therein, and (c) invites or permits them to enter or remain upon the land without exercising reasonable care (i) to make the condition reasonably safe, or (ii) to give a warning adequate to enable them to avoid the harm without relinquishing any of the services which they are entitled to receive, if the possessor is a public utility.
Still, a leading treatise concluded that, historically, “ ‘[u]nder the mainstream theory, . . . the obvious danger rule was not a matter of contributory negligence or assumed risk.” The Limit to Premises Liability, 38 Tex Tech L Rev at 28, quoting Dobbs & Hayden, Torts and Compensation: Personal Accountability and Social Responsibility for Injury (2005), pp 362-363. “ ‘It was instead a no duty rule,’ ” created by the courts on “ ‘the theory . . . that if the danger was obvious, the invitee could avoid it and thus protect himself, so that the landowner would foresee no harm.’ ” The Limit to Premises Liability, 38 Tex Tech L Rev at 28, quoting Dobbs & Hayden, pp 362-363.5
(2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.
As the majority explains, unlike the First Restatement, the Second Restatement allows for liability even for certain open and obvious dangers if the possessor could foresee that an invitee would nevertheless confront the hazard and be harmed.
Consequently, contrary to the majority’s suggestion, the early caselaw does not uniformly support the assertion that the doctrine related to the contributory negligence defense. Instead, as discussed herein, a number of cases lend support for the conclusion that the open and obvious doctrine relates to the concept of duty.
B. MORE RECENT CASELAW
The majority asserts that the more recent caselaw, applying the Second Restatement, “has not provided much clarity” as to whether the doctrine applies to the duty or the breach element. This is simply not true. Consider the prime case cited by the majority, Quinlivan v Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244; 235 NW2d 732 (1975). The majority clutches onto dicta in the case while ignoring the actual holding and legal principles at issue. The case was a typical parking lot slip-and-fall action involving snow and ice. But rather than dealing with the open and obvious doctrine, it involved a related but separate principle known as the natural-accumulation-of-ice rule.
The basic rule was that snow and ice were not a defect in the property unless the possessor’s conduct somehow made the condition worse. See Hutchinson v Ypsilanti, 103
Quinlivan replaced this rule with the rule from the Second Restatement—which, as noted, allowed liability for certain open and obvious hazards if it was foreseeable that an invitee would confront them—via our adoption of an Alaska Supreme Court decision. Quinlivan, 395 Mich at 258-261, citing Kremer v Carr’s Food Ctr, Inc, 462 P2d 747 (Alas,
“Section 343 is controlling here. A jury could have found: (a) that Carr’s possessed the parking lot and knew the condition of its surface, (b) that Carr’s should have realized that this condition involved an unreasonable risk of harm to its business invitees, (c) that Carr’s should have expected that its business invitees would not discover or realize the danger, or should have anticipated that they would fail to protect themselves against a danger they did discover or realize, or should otherwise have anticipated harm to invitees despite the fact that the danger was known or obvious to them, and (d) that Carr’s failed to exercise reasonable care to protect business invitees, such as Kremer, from the dangerous surface conditions in its parking lot.” [Quinlivan, 395 Mich at 259, quoting Kremer, 462 P2d at 759-750.]
Item (c) in the list reflects Restatement Second, § 343A, which, as noted, provides that an open and obvious hazard will not lead to liability unless the possessor of land can reasonably foresee that an invitee will confront the hazard. Indeed, although we did not mention it, Kremer quoted Restatement Second, § 343A in a footnote immediately after Item (c). Kremer, 462 P2d at 749 n 8.
The core holding of Quinlivan, then, was simply that some natural accumulations of ice and snow could lead to liability under the Second Restatement test. And in line with the prior caselaw treating this as an issue of duty, we stated that “[i]n our view the Alaska Court has appropriately conceived the legal duty owed by the invitor to the invitee.” Quinlivan, 395 Mich at 260. We also said, “The general description of the duty owed appearing in the Restatement is a helpful exposition of the duty described in” our past caselaw. Id. at 261.6 It is true that, in dicta, we suggested that “[t]he conduct of the invitee
And again, because either a no-duty rule or a contributory negligence rule led to the same result, there was no need to specify the theoretical grounds for why the obviousness of the danger was relevant.
injury to the invitee.” Quinlivan, 395 Mich at 261. The majority makes much of this line and suggests it directly applies here in Pinsky v Kroger Co of Mich. However, we do not appear to have seriously considered caselaw outside the context of the natural-accumulation rule, nor is it clear the parties even raised the issue of how the open and obvious doctrine applied in this context. Also, we offered no support or reasoning for the suggestion that, after some unspecified amount of time, the possessor must remove snow. To 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. Hoffner v Lanctoe, 492 Mich 450, 464 n 24; 821 NW2d 88 (2012). When we have applied the doctrine to open and obvious accumulations of snow and ice, we have never suggested that a duty might exist if the accumulation persists long enough—rather, the Court has flatly deemed such conditions to be outside the scope of the possessor‘s duty. See id.
1. COMPARATIVE NEGLIGENCE
The majority‘s treatment of two more central cases is worse still. In the lead-up to those cases, we continued to describe the open and obvious doctrine as applying to the duty element. See Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 500; 418 NW2d 381 (1988) (“The duty a possessor of land owes his invitees is not absolute, however. It does not extend to conditions from which an unreasonable risk cannot be anticipated or to dangers so obvious and apparent that an invitee may be expected to discover them himself.“), citing, among other things,
In Riddle, we directly held that this change in law left the open and obvious doctrine in place. Riddle, 440 Mich at 95. In so holding, we simply described the fundamental principles that every first-year law student learns about the prima facie elements of negligence, in particular that duty and breach are separate elements, both of which must be established for the plaintiff to succeed. We 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. “Conversely, comparative negligence is an affirmative defense” that did not alter the defendant‘s initial duty. Id. at 98. Without a duty, there can be no negligence. Id. at 96. The reasoning is straightforward: negligence actions can succeed only if there is a duty; no duty exists if the hazard is open and obvious unless it is foreseeable the invitee will nevertheless confront the hazard; therefore, a or warn the invitee unless he should anticipate the harm despite knowledge of it on behalf of the invitee.” Id. at 96 (emphasis added). In those circumstances, a duty of care exists, and what is reasonable under the circumstances will of course depend on the facts of the case. This does not mean, however, that every instance of an open and obvious hazard pertains to the breach element.
The fact that contributory negligence could no longer absolutely bar a plaintiff‘s recovery was irrelevant, we explained. Id. at 99, quoting Ward v K Mart Corp, 136 Ill 2d 132, 143-144; 554 NE2d 223 (1990). Although the obviousness of the hazard might affect the determination of whether a plaintiff was negligent, ” “the obviousness of a condition is also relevant to the existence of a duty on the part of defendant.” ” Riddle, 440 Mich at 99, quoting Ward, 136 Ill 2d at 143. Whereas the adoption of comparative negligence might affect defenses available to the defendant, the concern here is ” “with the existence of a duty on the part of defendant in the first instance.” ” Riddle, 440 Mich at 99, quoting Ward, 136 Ill 2d at 145. Relatedly, as the Supreme Court of Pennsylvania has observed, “[w]hereas duty is a question of whether any liability may attach to the defendant for the plaintiff‘s harm, comparative negligence is a method for determining how much responsibility should be allocated to the defendant in light of the plaintiff‘s conduct.” Krentz v Consol Rail Corp, 589 Pa 576, 589; 910 A2d 20 (2006) (emphasis omitted).
Ward also explained that “the advent of comparative negligence did not affect the basic duty a defendant owes a plaintiff in negligence cases.” Ward, 136 Ill 2d at 144; see also Thompson v Stearns Chem Corp, 345 NW2d 131, 134 (Iowa, 1984) (“Adoption of comparative negligence principles, while possibly mitigating the defense available to a tortfeasor, does not change [the] legal duty.“). Nor does the viability of the open and obvious defense resurrect a contributory negligence defense: “The scope of defendant‘s duty is not defined by reference to plaintiff‘s negligence or lack thereof. The focus must be on defendant. A major concern is whether defendant could reasonably have foreseen
The open and obvious doctrine thus has a different focus than the contributory negligence defense. At issue is “the nature of the dangerous condition itself, as opposed to the nature of the plaintiff‘s conduct in encountering it.” Armstrong v Best Buy Co, Inc, 99 Ohio St 3d 79, 82; 788 NE2d 1088; 2003-Ohio-2573 (2003). “The fact that a plaintiff was unreasonable in choosing to encounter the danger is not what relieves the property owner of liability. Rather, it is the fact that the condition itself is so obvious that it absolves the property owner from taking any further action to protect the plaintiff.” Id.10
The majority points to nothing in these statutes that regulates the duty owed by land possessors, nor can I discern anything in the statutes that speaks to a land possessor‘s duty. One would expect that if the Legislature meant to abrogate a common-law principle like the open and obvious doctrine, it would have done so in a clearer manner. See 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). Other courts have examined similar acts and concluded that they, too, leave the duty element untouched.11 Moreover, although subsequent legislation is not always a good
2. WHO GETS TO DECIDE
The majority nevertheless emphasizes the Legislature‘s intent to have the fact-finder, rather than the judge, weigh fault. The majority suggests that courts, in practice, rely on evidence of the plaintiff‘s subjective actions and negligence when deciding whether a hazard was open and obvious. This is a problem, according to the majority, because
This is simply not so. Courts should not be considering a plaintiff‘s subjective actions and negligence rather than the objective nature of the condition itself. In any event, the majority cites numerous cases as evidence that courts consider a plaintiffs’ negligence when applying the doctrine. But none of those cases actually describes the plaintiffs as negligent. See ante at 31 nn 11 & 12 (opinion of the Court). The courts were simply using the evidence at hand—largely from the plaintiffs—to describe the condition, including whether it was visible and whether it posed an appreciable danger. See, e.g., Hoffner v Lanctoe, 492 Mich 450, 473; 821 NW2d 88 (2012) (“Plaintiff freely admits that she knew the ice posed a danger, but that she saw the danger as surmountable . . . .“); Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich App 710, 713, 714; 737 NW2d 179 (2007) (“[P]laintiff testified that after he slipped, ‘I could see the grapes [on the floor]’ . . . .” Indeed, “[p]laintiff‘s own deposition testimony establishes that he would have noticed the potentially hazardous condition had he been paying attention.“). What else can a court use to determine the objective characteristics of the hazard if not the testimony and statements of those who saw it at the time of the accident?
More importantly, the majority is incorrect that the questions pertaining to the doctrine are always for the judge rather than the jury. We expressly held to the contrary in Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185 (1995). In that case, we reaffirmed Riddle and once again placed the doctrine within the duty element, defining it
The majority claims this muddies the waters. But once again, the majority entirely misunderstands the Second Restatement. To repeat: under the Second Restatement, a duty can exist despite the obviousness of the hazard when the defendant should anticipate that the invitee will nevertheless confront the hazard. As explained, that rule is the essential
“There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.
Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee‘s attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk. . . . It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances.” [Bertrand, 449 Mich at 611-612 (emphasis omitted), quoting
2 Restatement, 2d, § 343A, comment f, p 220 .]
See also Livings, 507 Mich at 340-341 (explaining these provisions of the Second Restatement).
These circumstances—where the risk of harm from an obvious hazard can be anticipated—encompass the “unreasonable” risks of harm we referred to in Bertrand. This does not suggest that all questions regarding the open and obvious doctrine are for a jury. Instead, as discussed multiple times above, this is simply the definition of the duty. Thus, where the Second Restatement, § 343A applies because the risk of harm remains, the duty element is satisfied, and the analysis can proceed to the other factual questions. As the
Critically, the majority ignores the section of Bertrand in which we held that the fact-finder had a role in resolving questions about the scope of duty when the doctrine was at issue. We stated that if a duty persists because the risk remained unreasonable despite its obviousness, i.e., the risk was foreseeable under Second Restatement, § 343A, “then the duty of the possessor of land to exercise reasonable care remains.” Bertrand, 449 Mich at 617. But “[i]f the proofs create a question of fact that the risk of harm was unreasonable, the existence of duty as well as breach become questions for the jury to decide. . . . If the jury determines that the risk of harm was unreasonable, then the scope of the defendant‘s duty to exercise reasonable care extended to this particular risk.” Id. “[Y]et [if] no reasonable juror would find that the danger was not open and obvious,” then the court could decide the question as a matter of law. Id. In other words, when questions of fact exist concerning the scope of the duty under the doctrine, those questions go to the fact-finder.
To be sure, this is a rare exception from the general rule that courts decide questions of duty as a matter of law. See generally Williams, 429 Mich at 500. But we are not alone in providing this exception. The Wyoming Supreme Court has “recognized that in certain instances the question of duty hinges upon the determination of certain basic facts and, in those rare circumstances, the question of the existence of a duty is properly placed before the trier of fact.” Selby, 990 P2d at 494. In Selby, the court concluded that a jury question existed as to whether the defendant aggravated the accumulation of ice, which would determine whether a duty existed. Id. at 495-496; see also id. at 495, citing Endsley v Harrisburg Med Ctr, 209 Ill App 3d 908, 911; 568 NE2d 470 (1991) (noting that a fact
By allowing duty questions regarding the doctrine to be decided by the fact-finder, Bertrand takes off the table one of the majority‘s major criticisms of the doctrine. Because issues involving the doctrine are subject to consideration by the fact-finder, it cannot be the case that the majority is truly concerned that our current law deprives plaintiffs of their chance to get before a jury.
III. THE SIGNIFICANCE OF THE MAJORITY‘S DECISION
Since Bertrand, this Court has continued to characterize the open and obvious doctrine as part of the duty element.14 The majority‘s holding today thus strikes down a long line of caselaw stretching back decades, if not also the earlier caselaw starting in the nineteenth century. In doing so, the Court has radically disrupted premises liability law in our state. Regardless of whether the doctrine reflected duty or contributory negligence, we
And the Court accomplishes this by hollowing out the duty element in premises liability cases while at the same time claiming to reject what it recognizes as the “radical new approach to premises liability” in the Third Restatement. Yet it is hard to see much daylight between the majority‘s novel approach here and the “radical” Third Restatement. Under the Third Restatement, land possessors owe “a duty of reasonable care to entrants” concerning risks created by the possessor, artificial and natural conditions on the land posing risks, and other specific risks relating to affirmative duties specified elsewhere.
What the majority does not say is that the Restatement Third‘s approach to duty in premises liability cases—the same basic approach the majority adopts here—reflects
This is a duty owed to the world at large, and there are no principled measures for limiting it. Rather, the Restatement treats duty as a matter of pure policy, and thus exceptions to it are ad hoc, based on a court‘s perception of better policy: “In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification.”
This rendering of the duty element is largely based on the view, long held by some academics, that “[a]t its core, duty . . . inescapably involves matters of policy.” Cardi, Purging Foreseeability, 58 Vand L Rev 739, 762 (2005); see Prosser, Palsgraf Revisited, 52 Mich L Rev 1, 11 (1953). Under this theory, “duty is meaningless—a piece of ‘artificial’ gibberish.” Goldberg & Zipursky, The Moral of MacPherson, 146 U Pa L Rev 1733, 1758 (1998), quoting Prosser, Handbook of the Law of Torts (1941), § 31, pp 179-180. This is the losing conception of duty from the dissent in Palsgraf, which contended
This now distinguishes duty in the premises liability sphere from duty in other areas of negligence law, where foreseeability continues to play a role in shaping and limiting this element. See In re Certified Question, 479 Mich at 508-509. The open and obvious doctrine served that function in premises liability law, but it will no longer. The shift in this area of the law portends greater changes ahead, for I can see no principled reason why the majority would think the foreseeability analysis (as encompassed by the open and obvious doctrine) is inappropriate in premises liability but is appropriate in negligence law more broadly. That is to say, there is no apparent rationale for why the majority‘s logic here should not extend across negligence law, draining the duty element of any meaning or limiting force. The majority has thus set us on a course to radically reconceptualize the duty element in ways that will impose new costs, greatly expand liability, and increase litigation.
Consider the impact of the present cases, for example. Not only businesses but also individual homeowners will need to clear ice and snow during or soon after a storm, or they will face lawsuits from invitees. Faced with the increased threat of liability, businesses and individuals will incur new costs. And “[w]e fool ourselves when we think harm despite such knowledge or obviousness.“). It seems apparent that the majority has not stopped to carefully consider what the current law is.
And while the majority suggests that our current law in this area is rife with confusion, who knows what problems will come when we dispense with the open and obvious doctrine. It seems almost certain that more and more cases will go to a jury, and there will be many more disputes concerning the proper allocation of fault. See 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 . . . .“). It is also possible that the focus of trial and appellate courts’ attention will now be on another element that contains a foreseeability analysis: proximate causation. See generally Skinner v Square D Co, 445 Mich 153, 163; 516 NW2d 475 (1994) (noting that proximate causation “involves examining the foreseeability of consequences“). No doubt defendants will make some of the same basic arguments to the judge that there is no triable issue of fact concerning proximate causation. See Purging Foreseeability, 58 Vand L Rev at 742-743.18
The supposed problem might simply mutate and persist.
IV. THE PROPER APPROACH
A. THE STANDARD
Under any standard with a meaningful duty element, plaintiffs in the present cases would lose. Nevertheless, I believe it is proper to briefly explain my view that the test set forth in §§ 343 and 343A of the Second Restatement is the appropriate standard for the duty element and that the “special aspects” test is simply an application of this portion of the Restatement. As the majority discusses, this Court in Lugo, 464 Mich at 517, began to emphasize “special aspects” as exceptions to the doctrine. The Court has identified two such aspects—those in which the danger is unreasonable and those in which the danger is effectively unavoidable. Hoffner, 492 Mich at 463.
It is apparent to me that these special aspects formed as examples of the Second Restatement approach. As already stated, and as was discussed in Livings, we have distractions were warranted, as well as those who could not reasonably perceive the real danger around or underlying what they could see. . . . Simply put, it was a doctrine crafted within the perceptions of the Americans of its time: a doctrine that negated the considerable time and expense of litigation in cases that otherwise generally could not have been won in front of the juries of the day, and a doctrine that kept property liability insurance premiums within its confines. It was a doctrine whose lifetime spanned the greatest opportunity and economic growth this nation has ever known. It was not the cause of this growth, personal responsibility was—but it did play its part along with many, many other factors of our social, economic, and political structures of the time. [Shelton, 413 SW3d at 920 (Scott, J., dissenting).]
Lugo simply employed the discussion from Bertrand and emphasized the “special aspects” phrasing. See Lugo, 464 Mich at 516-518. It broadly stated the rule as providing
that, with regard to open and obvious dangers, the critical question is whether there is evidence that creates a genuine issue of material fact regarding whether there are truly “special aspects” of the open and obvious condition that differentiate the risk from typical open and obvious risks so as to create an unreasonable risk of harm, i.e., whether the “special aspect” of the condition should prevail in imposing liability upon the defendant or the openness and obviousness of the condition should prevail in barring liability. [Id. at 517-518.]
The phrasing is almost straight from Restatement Second, § 343A, with the addition of the term “special aspect.”
It is worth noting that under this approach, “foreseeability is not boundless. That something ‘might conceivably occur,’ does not make it foreseeable.” Bruns v Centralia,
Given our uninterrupted assertions that the open and obvious test is consistent with §§ 343 and 343A of the Second Restatement, and given our long use of that portion of the Second Restatement, I think the only sensible reading of our caselaw is that the “special
Such a concern misses the point of the Restatement Second: the thrust of the rule is not that the injury alone could be anticipated. Rather, it is that the possessor could foresee that a reasonable person in the invitee‘s circumstances would confront the hazard given the characteristics of that hazard, resulting in harm.
B. APPLICATION
As applied to the present cases, the Second Restatement, as framed by our caselaw, precludes relief. Kandil-Elsayed v F & E Oil, Inc, is a simple slip-and-fall-on-ice case. A straightforward application of Hoffner, which would remain good law under my view, precludes relief. Plaintiff was attempting to enter a commercial establishment to pay for gas when she slipped on plainly visible snow and ice. In Hoffner, 492 Mich at 457, the plaintiff similarly fell on ice when entering a gym. Hoffner, applying the special-aspects
In Pinsky v Kroger Co of Mich, there are two relevant questions. First, was the hazard open and obvious? Second, if so, did defendant nonetheless owe a duty to plaintiff under the appropriate test? With regard to the first question, a hazard is open and obvious if a reasonable person would observe it upon casual inspection. Novotney v Burger King Corp (On Remand), 198 Mich App 470, 474; 499 NW2d 379 (1993). The hazard here was a white wire tied at about waist-height to a candy-and-snack display in a checkout aisle but running down to below knee-height and attached to a baby formula display in the middle of the aisle. The Court of Appeals correctly determined that the hazard was open and obvious because it was plainly visible to anyone walking down the aisle. Indeed, plaintiff herself noted that she could see the cable in the photographs taken after the incident. I would also note that, although the Court of Appeals characterized the cable as being below knee-height, it is actually tied to the candy/snack display at around waist-height, and it then runs down diagonally toward the baby formula display. This would seem to make it even more apparent.
The Court of Appeals also properly determined that there were no applicable exceptions to the open and obvious doctrine. “A checkout lane closed by a cable is an
For these reasons, I would affirm the decisions below granting summary disposition in both cases.
The majority‘s decision will have repercussions across the state and throughout our law. Every person and entity possessing real property will feel its effects. The open and obvious doctrine was not perfect, but it reflected commonsense intuitions and the concept of duty in our law more generally. In overturning this doctrine, the majority misreads or ignores decades of precedent and saps the critical duty element of any real limiting force. And I see no principled reason why today‘s decision on premises liability will not extend to all of negligence law. The result will greatly expand liability, lead to more litigation, and destabilize the law. Few of our recent decisions in this area of law have had the potential to wreak such havoc. I dissent.
David F. Viviano
Brian K. Zahra
Notes
Section 343A of the Second Restatement, p 218, specifically pertains to known or obvious dangers:A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.
(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
In a footnote, the majority also suggests that “the Riddle majority seems to agree that in practice, questions of the open and obvious nature of a particular danger, and the landowner‘s anticipation of harm, are questions of breach for the jury, even though they label § 343A as speaking to duty, not breach. [Riddle, 440 Mich] at 96-97.” In full, the line from Riddle stated: “If the conditions are known or obvious to the invitee, the premises owner may nonetheless be required to exercise reasonable care . . . . What constitutes reasonable care under the circumstances must be determined from the facts of the case.” Id. at 97 (citation omitted). This does not at all indicate that the open and obvious doctrine involves breach. Recall that under the Second Restatement, § 343A—which we had long since adopted by the time of Riddle—it remains possible for a duty of care to exist regarding an open and obvious hazard if the defendant should foresee that an invitee will choose to confront that hazard despite its obviousness. We referred to exactly that scenario in Riddle: “However, where 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 protectAnd it seemed to describe § 343A as also articulating the “duty” owed, despite its more ambiguous “not liable” language. [Riddle, 440 Mich] at 94 (“[W]e held that a possessor of land does not owe a duty to protect his invitees where conditions . . . are so obvious and apparent that an invitee may be expected to discover them himself.“) (emphasis added). Therefore, Riddle‘s recitation of the law suggests that the entirety of the analysis conducted under § 343 and § 343A is a question of duty. Id. [Second alteration in original.]
Contrary to the majority opinion’s suggestion, I simply dissented from the Court’s application of this illustration in Livings. I did not reject any reliance on § 343A of the Second Restatement. It is worth adding the lament of a fellow jurist dissenting from a decision similar to the majority‘s decision today:A owns an office building, in which he rents an office for business purposes to B. The only approach to the office is over a slippery waxed stairway, whose condition is visible and quite obvious. C, employed by B in the office, uses the stairway on her way to work, slips on it, and is injured. Her only alternative to taking the risk was to forgo her employment. A is subject to liability to C. [2 Restatement Torts, 2d, § 343A, comment f, illustration 5, p 221.]
It [i.e., the open and obvious doctrine] was a doctrine that was based on personal responsibility and common sense; yet, one that was unforgiving of inattention, forgetfulness, or risky conduct. Still, it protected those whose
See also Hoffner, 492 Mich at 479 (noting that our standard reflects caselaw that relied on § 343 and § 343A of the Restatement and remains consistent with those provisions). [Livings, 507 Mich at 343 (citations omitted).]Our open-and-obvious jurisprudence has long been informed by the Restatement. As far back as 1938, we began relying on the relevant section and comments of the First Restatement. And we have often utilized the Second Restatement since its appearance in 1965, going so far as to say that § 343 and § 343A had been “adopted” into our law. In fact, our caselaw has already incorporated one of other the illustrations listed in comment f to § 343A. See Bertrand, 449 Mich at 624 (applying Illustration 3).
Despite the fact that our current framework uses different terminology, we have stressed that our law remains consistent with the Restatement approach. In Lugo, we stated that the special-aspects test was consistent with § 343A of the Restatement, which indicates that a possessor of land is only liable to invitees for harm caused by an obvious condition if the possessor should “anticipate the harm.” . . . Simply put, there must be something out of the ordinary, in other words, special, about a particular open and obvious danger in order for a premises possessor to be expected to anticipate harm from that condition. [Lugo, 464 Mich at 525.]
It is evident that in Mann, and especially in Hoffner, we were concerned with a foreseeability test because we thought it was no limitation at all given that harm could arise from every open and obvious hazard.mere anticipation of an injury creates, per se, a duty of care and a jury submissible question of fact . . . because harm can be anticipated from any number of common conditions. Indeed, when could it ever be said that harm could not be reasonably anticipated from an open and obvious condition? Ordinary open and obvious conditions are categorically conditions from which harm may be anticipated . . . .