Lead Opinion
In this рremises liability action, plaintiffs appeal by right the trial court’s grant of summary disposition to defendants. Because we conclude that plaintiff Gordon J. Bredow
In December 2008, Ferguson Enterprises, a wholesale distributor of plumbing supplies and other items, employed plaintiff as a project manager in its pricing center. In this role, plaintiff explained that he worked “with data,” creating spreadsheets and other tools to aid those individuals analyzing commodity and matrix pricing for the Midwest. The pricing center where plaintiff worked was located in a rented warehouse which was part of a facility owned and managed by defendants.
On December 26, 2008, plaintiff and a coworker, Greg Layton, acting on their own accord, undertook the task of clearing snow and ice from an area near the building’s entrance. Plaintiff, in particular, began clearing large icicles that were hanging from the building’s roof. As he did so, large amounts of snow and ice fell from the roof onto plaintiff, causing him serious injury.
Plaintiff lacked specific recollection of the events surrounding his injury and indicated that Layton would be best able to describe the incident. According to Layton’s description, on the day in question, the “very thick” ice forming on the building’s roof was of such a length that it almost reached the ground. Early in the day, the ground near the entrance of the building appeared clear, but, by afternoon, ice had begun to fall from the roof. Unsolicited, Layton and plaintiff attempted to remove this ice debris from the ground, including ice chunks somewhat smaller around than a bowling ball.
Plaintiff then began to attempt the removal of icicles hanging down from the building’s roof. Layton explained that, just before plaintiffs injury, plaintiff was
Layton noted that, as a matter of “common sense,” the risk of falling ice posed a danger as evidenced by the ice on the ground. Recognizing this danger, Layton also indicated that, while plaintiff pushed on the icicles, Layton “was kind of edging back because it seemed dangerous so [he] didn’t want to be near it.” In Layton’s opinion, the section of the roof near where plaintiff chose to strike the icicles could have come down at any time. Likewise, though plaintiff had few memories of the specific events surrounding his injury, he had previously seen snow and ice on the building’s roof, and he had heard snow and ice falling off the building’s roof before the incident in question. He also described the process of “push[ing]” or “clearing” the icicles, stating, “[Y]ou kind of push [the icicles] while you’re looking up, so you don’t I mean, you can image getting something that’s dropping down and tipping over and teetering. It can be dangerous.”
Sometime after sustaining his injury, plaintiff filed suit against defendants. Defendants later moved for summary disposition, which the trial court granted after determining that the snow and ice on the roof constituted an open and obvious danger without any special aspects. Plaintiff now appeals as of right.
A trial court’s decision to grant a motion for summary disposition is reviewed dе novo. Latham v Barton Malow Co,
The present case is clearly one of premises liability, meaning that plaintiffs injury arose from an allegedly dangerous condition on the land. Buhalis v Trinity Continuing Care Servs,
In this case, we note that the parties focus their appellate arguments on the issues of proximate causation, and whether, for purposes of assessing defendants’ duty, the danger in question was open and obvious, and, if so, whether the open and obvious danger had “special aspects.” Before reachingthe parties’ arguments, under the particular circumstances of this case, we find it necessary to first decide plaintiffs status as an entrant
In Michigan, the duty owed by a landowner with respect to the conditions of his or her land depends on the category of person entering the land, i.e., whether the individual is a (1) trespasser, (2) licensee, or (3) invitee. Id. at 19. An explanation of the respective categories, and the attendant standard of care owed by a landowner, was provided in Stitt v Holland Abundant Life Fellowship,
A “trespasser” is a person who enters upon another’s land, without the landowner’s consent. The landowner owes no duty to the trespasser except to refrain from injuring him by “wilful and wanton” misconduct.
A “licensee” is a person who is privileged to enter the land of another by virtue of the possessor’s consent. A landowner owes a licensee a duty only to warn the licensee of any hidden dangers the owner knows or has reason to know of, if the licensee does not know or have reason to*586 know of the dangers involved. The landowner owes no duty of inspection or affirmative care to make the premises safe for the licensee’s visit. Typically, social guests are licensees who assume the ordinary risks associated with their visit.
The final category is invitees. An “invitee” is “a person who enters upon the land of another upon an invitation which carries with it an implied representation, assurance, or understanding that reasonable care has been used to prepare thе premises, and make [it] safe for [the invitee’s] reception.” The landowner has a duty of care, not only to warn the invitee of any known dangers, but the additional obligation to also make the premises safe, which requires the landowner to inspect the premises and, depending upon the circumstances, make any necessary repairs or warn of any discovered hazards. Thus, an invitee is entitled to the highest level of protection under premises liability law. [Citations omitted.]
For purposes of determining a landowner’s duty in a premises liability case, the entrant’s status as an invitee, licensee, or trespasser on the land is considered “at the time of injury.” Burnett v Bruner,
However, depending on the circumstances, an individual’s status as an invitee on the property is subject to change during the visit to the premises if the individual exceeds the scope of his or her invitation. See 2 Restatement Torts, 2d, § 332, comment l, pp 181-183. An invitee may, for example, exceed the scope of an invitation when he or she departs from the location encompassed by the invitation, or when he or she stays on the
In Bennett v Butterfield,112 Mich 96 ;70 NW 410 (1897), the plaintiff was injured while he was a customer in the defendant’s store. The рlaintiff claimed that he was invited into a place of danger without warning and without proper guards at the entrance to protect him. The evidence, however, established that the plaintiff attempted to enter an elevator without invitation or permission. Consequently, the Supreme Court held that the plaintiff alone was “responsible for the accident and the injury, and [could] not recover.” Id. at 98. Similarly, in Hutchinson v Cleveland-Cliffs Iron Co,141 Mich 346 ;104 NW 698 (1905), no duty was owed to an injured worker who had not been invited to enter that portion of the mill where the injury occurred. [Constantineau,195 Mich App at 515 (alteration in original).]
In the same way, in Bedell v Berkey,
In this regard, apart from geographical or temporal constraints on an invitation, an invitee might also exceed the scope of an invitation, and consequently lose invitee status, by acting in a manner inconsistent with the scope and purpose of the invitation. See 62 Am Jur 2d, Premises Liability, § 107, p 484 (“Deviation from an invitation to enter onto the possessor’s land occurs when the entrant acts in a manner inconsistent with the scope of an express or implied invitation, thereby demonstrating a change in relationship between that person аnd the possessor.”). In other words, because an invitee is expected to use a landowner’s premises in the usual, ordinary, and customary way, he or she loses invitee status by failing to act in this manner. See Bird v Clover Leaf-Harris Dairy,
Turning to the present facts, plaintiff clearly qualified as an invitee when he initially entered the premises for the purpose of working for Ferguson Enterprises and fulfilling his role as a project manager in the pricing center. As аn invitee to the property, his invitation would include ingress and egress to the building. See 2 Restatement Torts, 2d, § 332, comment l, pp 182-183. Therefore, plaintiff could, as an invitee, enter the warehouse and carryout his business function there in the form of his work for Ferguson Enterprises.
However, when plaintiff undertook the unsolicited act of clearing icicles from the building — a task unre
Given the change in plaintiffs status as an entrant to the property, to ascertain what duty defendants owed plaintiff, we consider the duty owed by a landowner to a licensee, which is, as noted, “a duty only to warn the licensee of any hidden dangers the owner knows or has reason to know of, if the licensee does not know or have reason to know of the dangers involved.” Stitt,
Accordingly, in the present case, given that plaintiff qualifies as a licensee, defendants owed him no duty of inspection and no affirmative duty of care to make the premises safe for his activities. See id. The only potential duty defendants owed to plaintiff would be to warn him of
Affirmed.
Notes
Because plaintiff Suzanne Bredow’s sole claim is a derivative claim for loss of consortium, references in this opinion to “plaintiff” are to her husband, plаintiff Gordon J. Bredow.
Though the parties have not framed the matter this way, “addressing a controlling legal issue despite the failure of the parties to properly frame the issue is a well understood judicial principle.” Mack v Detroit,
See also Sims v Giles, 343 SC 708, 733;
See 2 Restatement Torts, 2d, § 332, comment b, p 177 (“[A] volunteer helper who comes upon land to aid in getting a truck out of a mudhole, or in putting out a fire, without being asked to do so, is a licensee, but not an invitee.”).
The dissеnt suggests that plaintiffs attempt to remove icicles from the roof may be considered part of an ordinary departure from the premises because the icicles impeded his access to the building and defendants neither implicitly nor explicitly forbade plaintiffs removal of the icicles. We respectfully disagree. While plaintiff viewed the icicles as a potential safety hazard, we see nothing in the record that indicates the icicles in fact prevented plaintiff from entering or exiting the building through the entry in question. Moreover, as the dissent acknowledges, there were other means of ingress and egress made available to plaintiff, further belying the suggestion that entering or exiting the building necessitated plaintiffs unsolicited removal of the icicles. In short, this is not a situation in which an invitee was trapped in a building, forced to knock down icicles to gain his escape. Rather, unsolicited, plaintiff voluntarily took it upon himself to correct what he perceived as a safety hazard on the property. In our view, the mere fact that plaintiff perceived the icicles as a safety hazard, and voluntarily chose to personally
Concurrence Opinion
(concurring). I concur with the lead opinion. I write separately solely to address our dissenting colleague’s analysis of the open and obvious danger doctrine.
I first note that we all apparently agree that the accumulation of snow and ice on the roof was open and obvious
In Lugo v Ameritech Corp, Inc, the Michigan Supreme Court gave the example of an unguarded 30-foot-deep pit to illustrate when a condition might be unreasonably dangerous:
[W]ith 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.
*594 An illustration of such a situation might involve, for example, a commercial building with only one exit for the general public where the floor is covered with standing water. While the condition is open and obvious, a customer wishing to exit the store must leave the store through the water. In other words, the open and obvious condition is effectively unavoidable. Similarly, an open and obvious condition might be unreasonably dangerous because of special aspects that impose an unreasonably high risk of severe harm. To use another example, consider an unguarded thirty foot deep pit in the middle of a parking lot. The condition might well be open and obvious, and one would likely be capable of avoiding the danger. Nevertheless, this situation would present such a substantial risk of death or severe injury to one who fell in the pit that it would be unreasonably dangerous to maintain the condition, at least absent reasonable warnings or other remedial measures being taken. In sum, only those special aspects that give rise to a uniquely high likelihood of harm or severity of harm if the risk is not avoided will serve to remove that condition from the open and obvious danger doctrine.[5 ]
Central to the analysis of both our dissenting colleague and the Supreme Court is the proverbial 30-foot-deep unguarded pit. According to Supreme Court’s formulation, such a pit would be unreasonably dangerous. But to whom? I suggest that the Supreme Court had in mind the severe nature of the danger to an innocent invitee on the land who might fall by misadventure into the pit. It follows, then, that the dangerous condition of the land must cause a plaintiffs injury.
The Supreme Court’s hypothetical 30-foot-deep pit is not even remotely similar to the situation we have here. It was certainly conceivable that ice or snow might fall off the building; indeed plaintiff testified that sometimes chunks a foot in diameter would fall off the
Plaintiff here was certainly not an innocent plaintiff who was simply injured by misadventure. As the lead opinion points out, by his unsolicited actions, plaintiff caused the danger and therеfore caused his own injury. How, then, can we say it was the accumulation of ice and snow on the roof that was, without more, unreasonably dangerous? And how, then, can we say it was the dangerous condition — presuming that it was dangerous — that caused plaintiffs injury when plaintiffs own actions directly led to that injury?
By analogy, consider a person — let’s call him the Gratuitous Volunteer- — who sees and climbs down into a 30-foot-deep earthen pit and then proceeds, entirely on his own, to shovel away at one of the earthen walls to make a ramp back up. But, not surprisingly, the shoveling weakens the wall and it collapses, injuring the Gratuitous Volunteer. Clearly, before the Gratuitous Volunteer began shoveling, the wall was stable and safe and the pit was not unreasonably dangerous to bim or to anyone else similarly situated. It was purely and simply the Gratuitous Volunteer’s own actions that cаused the pit to become dangerous at all, much less unreasonably dangerous. The Gratuitous Volunteer’s actions, not the condition of the land, caused his injury. The same is true of plaintiff here.
I also note our dissenting colleague’s statement that she “would also decline to address defendants’ alternative argument that plaintiffs injury is his own fault: defendants appear to have raised this for the first time on appeal, and I would leave it up to the parties to address on remand.” The record belies this assertion.
See our dissenting colleague’s statement that “[t]he question is a close one, hut I believe the trial court correctly found that in this particular case, the danger was open and obvious.”
See our dissenting colleague’s statement that “[hlowever, the evidence was that employees could have used an alternative door to the building; doing so would merely have been inconvenient and contrary to their established and expectеd practice. Consequently, the danger was not effectively unavoidable.” (Emphasis added.)
For ease of reference, like the lead opinion, this opinion refers to plaintiff Gordon J. Bredow in the singular because his wife’s claim is derivative.
See, generally, Lugo v Ameritech Corp, Inc,
Id. at 517-519.
Dissenting Opinion
(dissenting). I respectfully dissent because I cannot agree with the lead opinion’s conclusion that plaintiff
As the lead opinion notes, the parties have at no time contested plaintiffs status as an invitee on defendants’ premises. I agree with the lead opinion that the courts are not obligated to comply with parties’ stipulations or statements of law. See Marbury v Madison,
I further agree with the lead opinion’s recitation of the general law governing the standard of care owed by landlords to various classes of individuals on the land and the general definitions of licensees and invitees. We all agree, at least, that plaintiff was an invitee when he initially entered upon defendant’s premises. I take no exception to the general principle that an invitee can outstay his or her welcome on any given premises and thereby become a licensee or trespasser. However, I do not conclude that plaintiff did so here. The lead opinion cites a number of cases in which invitees became mere licensees or trespassers, but all of those cases have one curious factual commonality: the plaintiffs all either did something they were not allowed to do or went somewhere they were not allowed to go. Bedel v Berkey,
The lead opinion further asserts that an invitee must make use of the premises in the “ ‘usual, ordinary, and customary way’ ” to maintain his or her status as an invitee, in reliance on Armstrong v Medbury,
The plaintiff was bound to leave defendant’s premises by the usual, ordinary, and customary way in which the premises are and have been departed from, provided the same be safe and in good condition; and if for his own convenience, or other reason (than defect in the usual place of departure), he leaves such way, he becomes at best a licensee, and cannot recover for injuries from a defect outside of said way, unless it was substantially adjacent to such way, and in this case the defect was not so adjacent. [(Armstrong,67 Mich at 253 ) (quotation marks omitted).]
The situation at bar is the opposite: plaintiff was in fact attempting to depart from the premises in the normal and customary manner, but was impeded by an alleged defect within that way and was — albeit perhaps incautiously — attempting to rectify the defect. Again, plaintiff may not be able to recover for his injuries, but the fact that he was attempting to remove what he apparently believed to be a hazard to his transit hardly seems like a frolic and detour.
The lead opinion also takes out of context a quotation from Buhalis v Trinity Continuing Care Servs,
I find the lead opinion’s expansion of the rules governing the loss of invitee status grossly unwarranted and inappropriate. Plaintiff was apparently just trying to go home and make the way to doing so safe. Furthermore, there was evidence that he did so in accordance with the expectations of his employer. He did nothing and went nowhere that was implicitly or explicitly disallowed by the premises owner. Finding that he lost his status as an invitee under the circumstances works an unprecedented and unsupported restriction on the nature of what constitutes an invitee.
Further, punishing an employee for attempting to abate a danger at his workplace is bad public policy. Plaintiff was attempting to remove a potential injurious hazard from the main entrance of his workplace to allow for fellow employees or other invitees to enter or exit without the risk of harm. This is not a situation in
Defendants are required to make reasonable efforts to protect the safety of those on the property, although not to the extent of guaranteeing that safety. Hoffner v Lanctoe,
I would not hold that the danger of snow and ice falling from a rooftop and thereby causing injury is open and obvious per se. However, notwithstanding the fact that the standard for openness and obviousness is objective, it calls for consideration of what a reasonable person would have been expected to discover on casual inspection from the plaintiffs position. Slaughter v Blarney Castle Oil Co,
Even if a hazard is open and obvious, a premises possessor may nevertheless owe a duty to an invitee to protect the invitee from “unreasonable” risks of harm. Hoffner,
Plaintiff argues that the trial court erred by finding that the danger of falling ice and snow here was not effectively unavoidable. I disagree. If a plaintiff has a choice to decline to confront the danger, it is not “effectively unavoidable.” Hoffner,
Plaintiff also argues that the trial court erred by failing to find that the hazard was unreasonably dangerous. I agree that the trial court erred by failing to address the possibility. A condition that poses an unreasonably high risk of severe harm is an alternative special aspect. The thirty-foot pit discussed by our Supreme Court in Lugo would all but guarantee serious
As with the question whether accumulated snow and ice on a roof is open and obvious, I would not hold that such accumulation is or is not unreasonably dangerous per se. The unique details of the specific situation are critical. In light of the trial court’s failure to address this question, I would likewise decline to do so and instead remand for the parties to address this before the trial court. I would also decline to address defendants’ alternative argument that plaintiffs injury is his own fault: defendants appear to have raised this for the first time on appеal, and I would leave it up to the parties to address on remand.
For ease of reference, like the lead and concurring opinions, this opinion refers to plaintiff Gordon J. Bredow in the singular given that plaintiff Suzanne Bredow’s sole claim is derivative.
Similarly, I note that plaintiff never formally conceded that this action sounds in premises liability, but I agree entirely with the lead opinion and the trial court that it does.
Even if the out of state cases were binding, they would not support the lead opinion’s conclusions. Briefly: in Bird v Clover Leaf-Harris Dairy,
As I will discuss, a safer route existed that plaintiff could have taken, which has implications under the open and obvious danger doctrine. However, that alternative route was neither expected nor normal for employees to take. I disagree with the lead opinion about the extent to which the record evidence shows plaintiffs expected and normal egress from the building to have been safe.
It would appear that if plaintiff had in fact availed himself of the alternative, and ordinarily unused, egress from the building, the majority would find that he would have lost his invitee status in any event by departing from the normal and customary egress route.