ESTATE OF DONNA LIVINGS v SAGE‘S INVESTMENT GROUP, LLC
Docket No. 159692
Michigan Supreme Court
June 30, 2021
Argued on application for leave to appeal November 10, 2020.
Syllabus
Chief Justice: Bridget M. McCormack
Justices: Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Elizabeth T. Clement, Megan K. Cavanagh, Elizabeth M. Welch
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.
Reporter of Decisions: Kathryn L. Loomis
Donna Livings brought an action in the Macomb Circuit Court against her employer, Grand Dimitre‘s of Eastpointe Family Dining; Sage‘s Investment Group, LLC, which leased space to Grand Dimitre‘s; and T & J Landscaping & Snow Removal, Inc., alleging negligence based on premises liability after she slipped on ice while attempting to cross the employee parking lot to get to her job. Livings‘s claims against T & J Landscaping were resolved through the case-evaluation process. Sage‘s Investment Group moved for summary disposition under MCR 2.116(C)(10), arguing that the snow and ice were open and obvious and that Livings could have avoided these conditions by parking elsewhere and using the front door instead of the employee entrance. Grand Dimitre‘s also moved for summary disposition. The trial court, Edward A. Servitto, J., granted summary disposition with respect to Grand Dimitre‘s but denied it as to Sage‘s Investment Group, ruling that a question of fact existed as to whether Livings would have been permitted to use the front parking lot and entrance. Sage‘s Investment Group sought leave to appeal, which the Court of Appeals granted. The Court of Appeals, BECKERING and SHAPIRO, JJ. (TUKEL, J., concurring in part and dissenting in part), affirmed in an unpublished per curiam opinion issued February 26, 2019 (Docket No. 339152), concluding that although the ice was open and obvious, there was a genuine issue of material fact regarding whether the hazard was effectively unavoidable. Judge TUKEL, dissenting in part, would have held that because Livings could have skipped work rather than confront the snow and ice, the hazard was not effectively unavoidable. Sage‘s Investment Group again sought leave to appeal. The Supreme Court ordered and heard oral argument on whether to grant the application or take other action. 505 Mich 985 (2020). After Livings‘s death in March 2020, her estate was substituted as the named plaintiff.
In an opinion by Justice VIVIANO, joined by Chief Justice MCCORMACK and Justices BERNSTEIN and CAVANAGH, the Supreme Court held:
Under the open and obvious danger doctrine, a hazard can be deemed effectively unavoidable if the plaintiff confronted it to enter their place of employment for purposes of work. In these circumstances, it is possible for a defendant to foresee that the employee will confront the hazard. The fact that the employee could have failed to report to work as required by their employer is not a reasonable alternative. Courts addressing this issue should consider whether a reasonable person in the plaintiff‘s circumstances would have used any available alternatives to avoid the hazard. In the present case, because Livings‘s fall on the snow and ice occurred as she attempted to enter her workplace, she has raised an issue of material fact as to whether the conditions of the parking lot were effectively unavoidable.
1. To prevail on a premises-liability claim, a plaintiff must establish that the defendant owed them a duty of care. In the present context, a possessor of land owes a duty to exercise reasonable care to protect invitees from dangerous conditions on the land. This duty generally does not extend to dangerous conditions that are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them. However, if special aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to protect invitees from that risk. Special aspects of an open and obvious hazard can give rise to liability when the danger is unreasonably dangerous or when the danger is effectively unavoidable. The standard for effective unavoidability is that a person, for all practical purposes, must be required or compelled to confront a dangerous hazard. The Second Restatement of Torts, after setting out the general standard for premises liability, explains that a premises possessor might expect a reasonable person to confront an obvious hazard when the advantages of doing so would outweigh the apparent risk, and it offers as an example an illustration in which a premises owner is liable to an employee of its lessor when the employee is injured by falling on an obviously slippery waxed stairway when the employee‘s only alternative to taking the risk was to forgo employment. Other jurisdictions follow this approach, and Michigan‘s open and obvious danger jurisprudence has long been informed by, and remains consistent with, the Restatement. In Michigan, it is reasonable to anticipate that many businesses will remain open even during bleak winter conditions. A landlord cannot expect that every one of its tenant‘s employees will be permitted to stay home on snowy days. Therefore, it is reasonable to anticipate that a person will proceed to encounter a known or obvious danger for purposes of their work. Accordingly, an open and obvious hazard can become effectively unavoidable if the employee confronted it to enter their workplace for work purposes. This standard‘s application will depend on the facts of the case, but the key is whether alternatives were available and would have been used by a reasonable person in the employee‘s circumstances. If an employee could have avoided the condition through the use of due care under the circumstances, then the condition was not effectively unavoidable. Another consideration is whether the employee would need to breach the employer‘s policies in order to avoid the condition and what the consequences of that breach might be. What a court cannot conclude, however, is that a hazard was avoidable simply because the employee could have elected to skip work or breach other requirements of their employment.
2. In this case, there was a genuine issue of material fact regarding whether the hazard was effectively unavoidable. Livings presented evidence that snow and ice covered the entire parking lot, encompassing both the employee and customer sections. It is undisputed that Livings confronted the snow and ice in order to enter the restaurant in order to begin her shift. From this, a fact-finder could reasonably conclude that Livings confronted the condition to enter her place of employment for work purposes. Livings presented evidence that she could not have avoided the condition by parking in the customer lot because it was also covered in snow and ice, and she could not have waited until the condition had resolved without effectively skipping work, which was not a reasonable alternative. Accordingly, Sage‘s Investment Group has not shown as a matter of law that any reasonable alternative would have allowed Livings to avoid the hazard. Consequently, a genuine question of material fact exists as to whether the condition here was effectively unavoidable.
Court of Appeals judgment affirmed; case remanded to the trial court for further proceedings.
Chief Justice MCCORMACK, joined by Justices BERNSTEIN and CAVANAGH, concurring, agreed in full with the majority opinion but wrote separately to express her reservations about the continued reliance on the special-aspects doctrine articulated in Lugo v Ameritech Corp, Inc, 464 Mich 512 (2001). She noted that the special-aspects doctrine had been widely criticized by commentators, was an unnecessary departure from the sensible and straightforward approach of the Second Restatement of Torts, had not been embraced or adopted by any other jurisdiction, and used unlikely hypothetical examples to further narrow what was already a narrow exception to the general rule of nonliability for open and obvious conditions. Given that Michigan had no state-specific need for a special rule regarding premises owners and invitees, Chief Justice MCCORMACK suggested that the Court reconsider the continued viability of the special-aspects doctrine in an appropriate case.
Justice ZAHRA, dissenting, stated that the majority opinion departed from nearly two decades of the Court‘s premises-liability jurisprudence by transforming the special-aspects doctrine from an objective inquiry to a plaintiff-focused inquiry encompassing the personal inclinations of each particular plaintiff encountering that condition, thereby creating the very subclass of invitees that the Court had rejected in Hoffner v Lanctoe, 492 Mich 450 (2012). He disagreed with the majority‘s endorsement of the Restatement‘s illustration regarding employees, which he stated was inconsistent with the Court‘s caselaw and would inject unpredictability into Michigan‘s premises-liability law by leading to inconsistent rulings based on the special circumstances of each plaintiff at issue. He would have applied the Court‘s well-established open and obvious danger caselaw to conclude that a person‘s employment is not a relevant consideration in determining whether a condition was “effectively unavoidable,” reversed the Court of Appeals judgment, and remanded the case to the trial court for entry of summary disposition in favor of Sage‘s Investment Group.
Justice CLEMENT, dissenting, agreed with Justice ZAHRA that today‘s ruling deviated from Hoffner and its related caselaw even while purporting not to. While she was less sanguine than he was about the affirmative benefits of this area of Michigan caselaw and would be open to considering different approaches, she stated that any changes the Court adopted ought to offer greater clarity than the status quo. Because she did not believe the Second Restatement offered any improvement on Michigan law, in particular considering its inconsistencies and ambiguities regarding whether questions of duty are to be decided by the judge or the jury, she would have applied Hoffner to this case and reversed the Court of Appeals.
Justice WELCH did not participate in the disposition of this case because the Court considered it before she assumed office.
VIVIANO, J.
Michigan, we have explained, “is prone to winter,” and “with winter comes snow and ice accumulations . . . .” Hoffner v Lanctoe, 492 Mich 450, 454; 821 NW2d 88 (2012). But for most Michiganders, winter weather does not mean an automatic holiday from their jobs. Therefore, snow, ice, and other wintry elements sometimes must be confronted to get to work. That is what happened in this case, when Donna Livings1 slipped on ice in her employer‘s
I. FACTS
On February 21, 2014, Livings pulled into the parking lot at her workplace, Grand Dimitre‘s of Eastpointe Family Dining, which leased the space from defendant Sage‘s Investment Group, LLC.2 She testified that she arrived shortly before 6:00 a.m. and parked in the employee lot, choosing the closest space not covered with snow, about 70 feet from the back door. Another employee had already arrived by that time and had parked in the front lot for customers. Testimony from Livings, another employee, and Ayman Shkoukani, one of the restaurant‘s owners, indicated that employees were required to park in the rear lot and use the back door to enter the building. The whole lot, Livings said, was covered with packed snow and ice and looked like “a sheet of ice.” Neither Livings nor Debra Buck, a fellow employee who had arrived earlier that morning, saw any salt on the lot. Buck testified that she also struggled to cross the parking lot because of the conditions.
After parking, Livings got out of her car, took a few steps, and fell. When she tried to stand up, she kept slipping. She attempted to crawl across the lot but could not reach the back door. Eventually, she made it to the front door, called the restaurant, and was let in by Buck. In pain the following day, Livings sought medical treatment and subsequently underwent three surgeries.
Livings sued defendant under a premises-liability theory, claiming that it failed to protect her from the dangerous accumulation of snow and ice in the lot. In the trial court, defendant moved for summary disposition under
The Court of Appeals affirmed in a split decision. Livings v Sage‘s Investment Group, LLC, unpublished per curiam opinion of the Court of Appeals, issued February 26, 2019 (Docket No. 339152). The majority noted that the ice was open and obvious, as Livings admitted to seeing it. Id. at 9. But the majority concluded that a genuine issue of material fact existed regarding whether the hazard was effectively avoidable. Id. at 9-11. The majority explained that the front and rear lots were connected as one and, according to both Livings and Buck, the entire surface was covered in snow and ice. Id. at 10. The majority held that whether the hazard was effectively unavoidable constituted a question for the fact-finder. Id. at 10-11. The trial court‘s decision was affirmed. Id.
Judge SHAPIRO concurred, explaining that it would have been inconsistent with “substantive justice” to hold, as Judge TUKEL‘s partial dissent would have done, that the condition was avoidable because Livings “could have skipped work and suffered the consequences to her employment.” Id. at 1 (SHAPIRO, J., concurring). The partial dissent cited caselaw suggesting that a plaintiff‘s employment is not a relevant consideration in determining whether a hazard was effectively unavoidable. The exception to this rule, according to the dissent, applies only when a court deems, “for public policy reasons,” that the plaintiff‘s job is too important to miss, as when it involves “the safety and well-being of others . . . .” Id. at 3-4 (TUKEL, J., concurring in part and dissenting in part). Judge TUKEL concluded that Livings‘s job “lack[ed] such vital, critical importance or urgency.” Id. at 5. The “ramifications” of missing a shift in a restaurant were simply not the same as they were in the healthcare field and, even so, Livings‘s “presence at the restaurant was not absolutely necessary to her employer or the restaurant‘s patrons.” Id. at 4 & n 5. Thus, because Livings could have skipped work rather than confront the snow and ice, the hazard was not effectively unavoidable.
Defendant sought leave to appeal, and we ordered argument on the application to address “(1) whether the plaintiff‘s employment is a relevant consideration in determining whether a condition is effectively unavoidable” and “(2) whether there was a question of fact concerning whether the parking lot constituted an effectively unavoidable condition.” Livings v Sage‘s Investment Group, LLC, 505 Mich 985, 985 (2020).
II. STANDARD OF REVIEW
We review de novo a trial court‘s decision on a motion for summary disposition. Bank of America, NA v First American Title Ins Co, 499 Mich 74, 84-85; 878 NW2d 816 (2016). “A motion brought under
III. ANALYSIS
To resolve this case, we must decide whether an open and obvious hazard can be considered effectively unavoidable when a plaintiff must confront it to enter his or her place of employment for work purposes. We hold that it can. But, in analyzing the issue, it is relevant whether a reasonable individual in Livings‘s circumstances would have used any alternatives to avoid confronting the hazard. Given this conclusion, we hold that a genuine issue of material fact exists in this case as to
A. EFFECTIVELY UNAVOIDABLE
To prevail on a premises-liability claim, plaintiffs must establish that defendants owed them a duty of care. Riddle v McLouth Steel Prod Corp, 440 Mich 85, 95-96; 485 NW2d 676 (1992).3 The duty element represents the legal obligation that arises from the relationship between the parties. Bertrand v Alan Ford, Inc, 449 Mich 606, 614; 537 NW2d 185 (1995). In the present context, a possessor of land owes a duty to exercise reasonable care to protect invitees from dangerous conditions on the land. Riddle, 440 Mich at 90. But this duty does not extend to dangerous conditions that are open and obvious. Id. at 95-96. Put differently, “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 protect or warn the invitee . . . .” Id. at 96. When the evidence creates a question of fact regarding this issue, the issue is for the fact-finder to decide. Bertrand, 449 Mich at 617.4
The concept of open and obvious dangers has evolved into a doctrine of considerable complexity. This is especially true of the exceptions to the doctrine, which we first attempted to elaborate in Lugo v Ameritech Corp, Inc, 464 Mich 512; 629 NW2d 384 (2001). There, we held that “a premises possessor is not required to protect an invitee from open and obvious dangers, but, if special aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to protect invitees from that risk.” Id. at 517. In a later case, we further elaborated on the “two instances in which the special aspects of an open and obvious hazard could give rise to liability: when the danger is unreasonably dangerous or when the danger is effectively unavoidable.” Hoffner, 492 Mich at 463.
The present case involves the “special aspect” of unavoidability. In Lugo, we hypothesized that an effectively unavoidable dangerous condition could exist in “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,” and thus it is effectively unavoidable. Lugo, 464 Mich at 518. Hoffner later explained that “the standard for ‘effective unavoidability’ is that a person, for all practical purposes, must be required or compelled to confront a dangerous hazard. As a parallel conclusion, situations in which a person has a choice whether to confront a hazard cannot truly be unavoidable, or even effectively so.” Id. at 469.
The only time we have applied this standard was in Hoffner. The plaintiff in that case slipped on the icy entrance to a fitness center, where she had a membership. Id. at 457. In rejecting her claim that
We have never considered the “effectively unavoidable” standard, as articulated in Lugo and Hoffner, in the context of plaintiffs who confronted an open and obvious danger due to their employment. In a case predating Lugo, however, we at least implied that employment was a consideration in determining whether an open and obvious danger could be avoided. The plaintiff in Singerman v Muni Serv Bureau, Inc, 455 Mich 135, 137-138, 141; 565 NW2d 383 (1997), sued an ice hockey arena after being struck in the eye by a hockey puck, claiming that the rink lacked proper lighting that would have allowed him to see and avoid the puck. It was undisputed that the poor lighting constituted an open and obvious hazard. Id. at 141. The question we posed was whether the condition was made unreasonably dangerous by any “unusual aspects.” Id. at 143. In concluding that there were no such aspects, the lead opinion observed that “plaintiff was not compelled to use the rink for work, or profit, or any other overriding or substantial motivation.5 He chose to participate in a dangerous sport under conditions he knew to be dangerous.” Id. at 144.
As a result, no exception to the open-and-obvious doctrine applied. Id. Singerman thus suggested that employment may be a relevant factor in the analysis.
This view finds substantial support from other sources. Most significantly, it reflects the view of the Second Restatement of Torts. The Restatement sets out the general standard for premises liability in § 343. 2 Restatement Torts, 2d, § 343, p 215 (establishing liability if the possessor fails to protect invitees against an unreasonable risk of harm that the possessor knew or should have known about and that the possessor “should expect that [the invitees] will not discover or realize . . . or will fail to protect themselves against“). In the next section—which is to “be read together with” § 343, see id. at 216, comment a—the Restatement states that a possessor of land is not liable for injuries caused to invitees “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.” 2 Restatement Torts, 2d, § 343A, p 218; see also Prosser, The Law of Torts (4th ed), p 394 (espousing the same standard).
In the comments, the Restatement explains that a possessor might expect a reasonable person to confront an obvious hazard when “the advantages of doing so would outweigh the apparent risk.” 2 Restatement Torts, 2d, § 343A, comment f, p 220. The following example is given:
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. [Id., comment f, Illustration 5, p 221.]
The illustration maps almost perfectly onto the current case and appears to provide a reasonable approach to this issue.6
Every case that we have found addressing this issue has followed the Restatement‘s approach.7 The Illinois Supreme Court, for example, engaged in an extended discussion
of § 343A and the related comments in LaFever v Kemlite Co, 185 Ill 2d 380; 706 NE2d 441 (1998). Like Livings, the plaintiff in LaFever sued the defendant for injuries that occurred while working (for a third party) on the defendant‘s premises. Id.
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.9 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.10 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).
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.]
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).11
We agree with the analysis set forth in the Restatement and in the cases from other jurisdictions cited above.12 Given that our state is prone to winter, it is reasonable to anticipate that many businesses will remain open even during bleak winter conditions. A landlord cannot expect that every one of its tenant‘s employees will be permitted to stay home on snowy days. Therefore, it is reasonable to anticipate that a person will proceed
to encounter a known or obvious danger for purposes of his or her work. Accordingly, an open and obvious hazard can become effectively unavoidable if the employee confronted it to enter his or her workplace for work purposes.13
owner is not required to anticipate every harm that may arise as a result of the idiosyncratic characteristics of each person who may venture onto his land.“) (emphasis added); Lugo, 464 Mich at 525 (discussing the possessor‘s reasonable expectations); Perkoviq v Delcor Homes–Lake Shore Pointe, Ltd, 466 Mich 11, 19-20; 643 NW2d 212 (2002) (same). The premises possessor can expect that the employee will act reasonably. Cf. Perkoviq, 466 Mich at 19-20; see also Mann v Shusteric Enterprises, Inc, 470 Mich 320, 329 n 10; 683 NW2d 573 (2004) (noting that, in determining whether a condition is open and obvious, the perspective of a “reasonably prudent person” is used rather than the particular view of the plaintiff). It follows that the employee‘s circumstances are relevant only to the extent they conform to an objectively reasonable standard. Put differently, the employee‘s decision to confront the hazard to enter his or her workplace is considered under an objective standard.14
This standard‘s application will depend on the facts of the case, but the key is whether alternatives were available and would have been used by a reasonable person in the employee‘s circumstances. Cf. Perkoviq, 466 Mich at 19-20. If an employee could have avoided the condition through the use of due care under the circumstances, then the condition was not effectively unavoidable. See id. For example, an employee might be able to avoid a hazard by taking a different path to work. Another consideration is whether the employee would need to breach the employer‘s policies in order to avoid the condition and what the consequences of that breach might be.15 What a court cannot conclude, however, is that a hazard was avoidable simply because the employee could have elected to skip work or breach other requirements of his or her employment.16
Applying the above analysis to this case, we find a genuine issue of material fact regarding whether the hazard was effectively unavoidable. As the Court of Appeals recognized, Livings presented evidence that snow and ice covered the entire parking lot, encompassing both the employee and customer sections. It is undisputed that Livings confronted the snow and ice in order to enter the restaurant in order to begin her shift. From this, the fact-finder could reasonably conclude that Livings confronted the condition to enter her place of employment for work purposes.
The question then becomes whether Livings could or should have used a reasonable alternative. In this regard, the parties have discussed whether Livings would have violated her employer‘s policies by parking in the customer lot. But, as noted, Livings has presented evidence that the customer lot also was covered in snow and ice. Evidence therefore exists that she would not have avoided the condition by parking there. Defendant also contends that Livings could have left and returned when the condition had resolved or simply waited in her car until that time. These suggestions are tantamount to skipping work and, under the analysis above, are therefore not reasonable alternatives.17
In short, then, Livings has presented sufficient evidence that she confronted the snow and ice to enter her workplace for purposes of her employment. Defendant has not shown as a matter of law that any reasonable alternative would have allowed Livings to avoid the hazard. Consequently, a genuine question of material fact exists as to whether the condition here was effectively unavoidable.
IV. CONCLUSION
Our decision today deals with a narrow but important part of our open-and-obvious doctrine: when is a hazard effectively unavoidable? We hold that a hazard can be deemed effectively unavoidable if the plaintiff confronted it to enter his or her place of employment
for purposes of work. In these circumstances, it is possible for a defendant to foresee that the employee will confront the hazard. The bare fact that the employee could have failed to report to work as required by his or her employer is not a reasonable alternative. Instead, courts addressing this issue should consider whether a reasonable person in the plaintiff‘s circumstances would have used any available alternatives to avoid the hazard. In the present case, Livings‘s fall on
David F. Viviano
Bridget M. McCormack
Richard H. Bernstein
Megan K. Cavanagh
MCCORMACK, C.J. (concurring).
I concur with the majority because I agree that under our precedent, an open and obvious condition may be effectively unavoidable when the land possessor should have reasonably expected the plaintiff-employee to confront the condition to get to work. There remains a genuine issue of material fact about the effective unavoidability of the ice-covered parking lot that injured Donna Livings as she tried to enter her workplace, and the majority‘s analysis properly applies the special aspects doctrine. Hoffner v Lanctoe, 492 Mich 450; 821 NW2d 88 (2012), does not bar that result; going to work is different from going to work out.
I write separately, however, to express my reservations about the continued reliance on the judicially created special aspects doctrine. It has been two decades since this Court first articulated this doctrine in Lugo v Ameritech Corp, Inc, 464 Mich 512; 629 NW2d 384 (2001), and I am not convinced that its drift from the more sensible and straightforward approach outlined in the Second Restatement of Torts has worked to clarify the law.
This is not a novel view. From the moment Lugo was decided, commentators and justices have questioned the soundness of its logic and the wisdom of its special aspects inquiry. See, e.g., Marks, The Limit to Premises Liability for Harms Caused by “Known or Obvious” Dangers: Will It Trip and Fall Over the Duty-Breach Framework Emerging in the Restatement (Third) of Torts?, 38 Tex Tech L Rev 1, 42-47 (2005) (disagreeing with the Lugo Court‘s assertion that under § 343A of the Second Restatement, liability for injury caused by an open and obvious danger is appropriate only when the condition possesses a special aspect); Potocsky, Note, The Blind Plaintiff Post-Lugo v. Ameritech: Falling Away From the Restatement in “Open and Obvious” Jurisprudence in Michigan, 62 Wayne L Rev 557 (2017) (critiquing the Lugo Court for lessening the duty of care on landowners and abandoning the Restatement approach that had long been central to Michigan‘s open-and-obvious jurisprudence); Braden, Adventures in OpenandObvious Land, 86 Mich B J 28, 29-31 (Mar 2007) (criticizing Lugo and the special aspects inquiry as part of a broader critique of Michigan‘s open-and-obvious doctrine); Lugo, 464 Mich at 527-532 (CAVANAGH, J, concurring) (agreeing with the majority‘s conclusion that liability cannot be imposed against the defendant but questioning the majority‘s formulation of its special aspects inquiry, which conflicts with Michigan caselaw and the Restatement approach). In an appropriate case, with the benefit of two decades of hindsight, this Court should reconsider the continued viability of the special aspects doctrine.
I. THE EVOLUTION OF MICHIGAN‘S OPEN-AND-OBVIOUS DOCTRINE
The First Restatement of Torts, published in 1934, created a bright-line rule: If the entrant on the land recognized the risk posed by a dangerous condition of the land, the land possessor was absolved from any liability for resulting harm. See 2 Restatement Torts, § 343. The rule was justified on grounds that have since fallen into
The American Law Institute chose modification. The Second Restatement of Torts, published in 1965, tweaked the approach of the First Restatement and codified a general section on dangerous conditions and a subsection dedicated specifically to “known or obvious dangers.”
§ 343. Dangerous Conditions Known to or Discoverable by Possessor.
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.
* * *
§ 343A. Known or Obvious Dangers
(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.
(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. [2 Restatement Torts, 2d, §§ 343 and 343A, pp 215-216, 218.]
Section 343 creates a general reasonable-care standard that land possessors owe to their invitees. Section 343A, like its predecessor in the First Restatement, creates a presumption of non-liability for known or obvious conditions. But § 343A also explains that this presumption can be overcome if the land possessor should have anticipated the harm even though the condition was known or obvious.1
Michigan courts have long embraced the Second Restatement approach. Indeed, even before the Second Restatement was published, Michigan courts were experimenting with its principles. In Boylen v Berkey & Gay Furniture Co, 260 Mich 211; 244 NW 451 (1932), the plaintiff
This Court explicitly adopted the Second Restatement approach to open and obvious dangers in Riddle v McLouth Steel Prod Corp, 440 Mich 85; 485 NW2d 676 (1992). Riddle arrived in the wake of a revolution. More than a decade prior, the Court issued its landmark decision in Placek v Sterling Hts, 405 Mich 638; 275 NW2d 511 (1979), which did away with the doctrine of contributory negligence—a doctrine that “had caused substantial injustice since it was first invoked in England in 1809” by barring recovery when the plaintiff‘s own negligence helped cause the injury. Id. at 652. In its place, the Court adopted a doctrine of comparative negligence, by which damages would be reduced in proportion to the plaintiff‘s own negligence. Id. at 661-662. See also
In Riddle, this Court held otherwise. The open-and-obvious doctrine, we said, focused on a threshold determination of the defendant‘s duty. Riddle, 440 Mich at 95-96. That duty element is “fundamentally exclusive” from the comparative negligence standard, an affirmative defense invoked only after duty has been established. Id. at 95. We embraced § 343A of the Second Restatement, finding that Michigan precedent quoting that rule “correctly define[d] the law regarding a premises owner‘s duty of care to invitees.” Id. at 95.
II. THE SPECIAL ASPECTS DOCTRINE
This takes us to Lugo. In Lugo, the plaintiff injured herself after stepping in a pothole in a parking lot. Lugo, 464 Mich at 514. The plaintiff provided no evidence that the pothole presented an unreasonable risk of harm or that the defendant should have expected that the pothole would cause injuries to its customers traversing the parking lot. Id. at 543-544 (CAVANAGH, J., concurring). But rather than simply applying the liability shield in § 343A, this Court introduced the special aspects doctrine. Two decades later, no other jurisdiction has embraced or adopted this doctrine.
The special aspects doctrine established that an open and obvious condition will only result in liability against the land possessor when “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 . . . .” Id. at 517 (opinion
But in an effort to provide guidance to lower courts applying this new test, Lugo offered two examples of the newly created special aspects doctrine at work. Rather than using facts from real cases, the Court presented what Justice WEAVER, in concurrence, presciently called “unlikely hypothetical examples.” Lugo, 464 Mich at 545 (WEAVER, J., concurring). The first showcased an “effectively unavoidable” danger in the form of standing water next to a commercial building‘s only exit, effectively trapping consumers inside the building. Id. at 518 (opinion of the Court). The second highlighted an “unreasonably dangerous” condition in the form of an “unguarded thirty foot deep pit in the middle of a parking lot.” Id.
The Lugo Court did not explain why it developed this new test rather than apply precedent. Before Lugo, Michigan courts were routinely applying § 343A of the Second Restatement to resolve premises liability disputes about open and obvious conditions. See Riddle, 440 Mich at 94-95; Bertrand v Alan Ford, Inc, 449 Mich 606, 624 (1995) (relying on § 343A to conclude that notwithstanding the open and obvious nature of a step that caused an injury, a genuine issue remained as to whether the construction of the step and its placement created an unreasonable risk of harm so that “the defendant should have reasonably anticipated” the circumstances that led to the injury); Singerman v Muni Serv Bureau, Inc, 455 Mich 135, 143; 565 NW2d 383 (1997) (contrasting the facts of the case with an illustration from § 343A that the Bertrand Court highlighted in its analysis). Court of Appeals opinions from the post-Riddle, pre-Lugo era also applied the Restatement test. See Hottmann v Hottmann, 226 Mich App 171, 175; 572 NW2d 259 (1997) (concluding that despite the open and obvious danger presented by falling off a steep roof, summary disposition for the defendant was inappropriate because the land possessor “may still have a duty to protect invitees against foreseeably dangerous conditions“); Butler v Wal-Mart Stores, Inc, unpublished per curiam opinion of the Court of Appeals, issued March 27, 2001 (Docket No. 219203), pp 3-4 (acknowledging that open and obvious dangers can still result in liability if the land possessor should have anticipated the harm, but finding that no evidence suggested that the defendant should have anticipated that patrons would trip and fall on the trailer-mounted barbecue pit that caused the plaintiff‘s injury); Hanna v Wal-Mart Stores, Inc, unpublished per curiam opinion of the Court of Appeals, issued April 13, 2001 (Docket No. 219477), p 2 (applying § 343A to conclude that an issue of fact remained as to whether the defendant department store‘s placement of a floor mat, which developed a two-inch fold that the plaintiff tripped over, constituted a “foreseeably dangerous condition” despite its open and obvious nature).
The special aspects doctrine strikes me as a solution in search of a problem. The Court suggested that it was simply applying the Restatement approach, but the scheme it created has little basis in the language of the Restatement or this Court‘s precedent. Even the phrase “special aspects” is plucked out of context from Bertrand. See Lugo, 464 Mich at 541-542 (CAVANAGH, J., concurring). The term does not appear in § 343 or § 343A. This departure from precedent was all the more perplexing because it came in a case in which a straightforward application of existing precedent would have arrived at the same result. The doctrine was an abrupt, unnecessary shift in Michigan‘s approach to open and obvious dangers.
Not surprisingly, since Lugo, 30-foot pits and standing water traps became the barometer for lower courts applying the special aspects doctrine. See, e.g., Bredow v Land & Co, 307 Mich App 579, 594; 862 NW2d 232 (2014) (WHITBECK, J., concurring) (“The Supreme Court‘s hypothetical 30-foot-deep pit is not even remotely similar to the situation we have here“); Bullard v Oakwood Annapolis Hosp, 308 Mich App 403, 410-411; 864 NW2d 591 (2014) (referring to Lugo‘s “unguarded thirty foot deep pit” as a point of reference for what constitutes unreasonably dangerous conditions and concluding that ice on a plank of wood at a construction site was not unreasonably dangerous); McKiddie v Super Bowl of Canton, Inc, unpublished per curiam opinion of the Court of Appeals, issued October 18, 2007 (Docket No. 272597), p 2 (“[A] slippery floor does not present the same level of danger and risk as a commercial building surrounded by water or an unguarded 30-foot deep pit in the middle of a parking lot. The special aspects doctrine does not apply to the case at bar.“).
Though some jurists have speculated that Lugo‘s “effectively unavoidable” and “unreasonably dangerous” categories were merely “illustrative examples of situations featuring ‘special aspects,’ rather than an exclusive list,” Richardson v Rockwood Ctr, LLC, 275 Mich App 244, 254; 737 NW2d 801 (2007) (DAVIS, J., dissenting) (a fair question, in my view), that has not been the predominant understanding. Due largely to the Lugo special aspects exemplars, what was already a narrow exception to the general rule of no liability for open and obvious conditions has been narrowed even further. Indeed, before today‘s opinion, our Court had never identified a real-world condition that was effectively unavoidable or unreasonably dangerous such that liability attached. One of the rare Court of Appeals opinions finding such a condition shows just how high a bar Lugo set. In Lymon v Freedland, 314 Mich App 746; 887 NW2d 456 (2016), the Court of Appeals found that a home healthcare aide encountered an effectively unavoidable steep and icy driveway that she needed to cross to reach her patient, an elderly woman who suffered from dementia and Parkinson‘s disease and could not be left alone. Our Court denied leave in that case, though one justice dissented from that order, expressing skepticism that the driveway contained special aspects to render it effectively unavoidable. Lymon v Freedland, 501 Mich 933, 933-936 (2017) (MARKMAN, J., dissenting).
The practical result of the special aspects doctrine is that fewer cases find their way to Michigan juries. When the point of reference is a 30-foot-deep pothole or a group of people trapped in a building, it is unsurprising that courts so often conclude that land possessors owe no duty when a dangerous condition is obvious. Tort liability, like much of law, regulates risk; a rule that effectively prevents liability isn‘t managing risk efficiently. As a result, the dissonance already present between Michigan‘s open-and-obvious doctrine and comparative negligence principles has only magnified in the wake of Lugo.
The special aspects doctrine has set Michigan apart, and it isn‘t clear why
III. CONCLUSION
I hope this Court will one day consider the legacy of Lugo and the special aspects doctrine. For now, the majority correctly determines that an open and obvious condition can be considered effectively unavoidable when an employee must confront it to go to work. Rather than continually finessing and refining this outlier doctrine, we should ask whether the Second Restatement‘s approach (as adopted by many of our sister jurisdictions) would provide more stability and predictability for Michigan. Or perhaps 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. See 2 Restatement Torts, 3d, Liability for Physical and Emotional Harm, § 51, p 242.
For this case, however, the majority correctly applies our existing premises liability law—there is a genuine issue of material fact about whether the ice-covered parking lot was effectively unavoidable. I therefore concur in full with the majority opinion.
Bridget M. McCormack
Richard H. Bernstein
Megan K. Cavanagh
STATE OF MICHIGAN
SUPREME COURT
ESTATE OF DONNA LIVINGS,
Plaintiff-Appellee,
v
No. 159692
SAGE‘S INVESTMENT GROUP, LLC,
Defendant-Appellant,
and
T & J LANDSCAPING & SNOW REMOVAL, INC., and GRAND DIMITRE‘S OF EASTPOINTE FAMILY DINING,
Defendants.
ZAHRA, J. (dissenting).
I respectfully dissent. In endorsing the approach set forth in 2 Restatement Torts, 2d, § 343, comment f, Illustration 5, the majority imprudently shifts the focus of the open and obvious danger doctrine‘s special-aspects exception from an objective examination of the condition on the premises at issue to an examination of the individual characteristics or inclinations of the particular person approaching that condition, doing away with the uniformity and predictability that this Court has sought to bring to this area of the law over the last two decades. Moreover, in applying its standard, the majority creates the very subclass of invitees that this Court expressly rejected in Hoffner v Lanctoe.1 Rather than adopting the Restatement illustration,
I. ANALYSIS
A premises owner generally owes a duty to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land.2 This duty does not extend to hazards that are “open and obvious.”3 If, however, despite its openness and obviousness, the risk involves some “special aspects” that exacerbate a danger, the premises owner is required to undertake reasonable precautions to protect invitees.4 This Court has specifically recognized that a special aspect of an open and obvious condition that renders it effectively unavoidable may give rise to liability.5 “[T]he standard for ‘effective unavoidability’ is that a person, for all practical purposes, must be required or compelled to confront a dangerous hazard. As a parallel conclusion, situations in which a person has a choice whether to confront a hazard cannot truly be unavoidable, or even effectively so.”6 This case pertains to this “effectively unavoidable” piece of the special-aspects doctrine.
The majority‘s holding that a plaintiff‘s employment situation is a relevant consideration in the special-aspects inquiry is inconsistent with decades of this Court‘s common-law premises-liability jurisprudence. This Court has repeatedly maintained that application of the open and obvious danger doctrine, and its special-aspects exception, turns on the objective nature of the condition on the premises itself. In the seminal case of Lugo v Ameritech Corp, this Court stated that “it is important for courts in deciding summary disposition motions by premises possessors in ‘open and obvious’ cases to focus on the objective nature of the condition of the premises at issue, not on the subjective degree of care used by the plaintiff.”7 A
This is for good reason. The nature of a readily observable condition does not change on the basis of a plaintiff‘s personal obligations or responsibilities, including a need to reach his or her place of employment. This Court‘s approach prior to this case, which concentrated on the condition on the premises itself rather than on any other factor unique to a particular invitee, allows for uniform application of and predictability in the law. This predictability is particularly important in the premises-liability context, as the applicable law shapes countless ordinary and pedestrian interactions that occur every day throughout the state of Michigan. Every property owner in this state is obligated to maintain its property in a way that is defined by common-law standards, as developed by our caselaw. And under our caselaw, at least until today, a property owner need only have assessed the potential harms of an open and obvious risk from a single objective standard, focused on the condition of the premises itself rather than from a potentially limitless number of standards defined by the individual circumstances and inclinations of every Michigan citizen. Application of a single standard defining the nature of interactions
By taking into consideration Livings‘s employment status in the “effectively unavoidable” inquiry, the majority adopts this latter type of standard, wrenching away the predictability from an area of the law in which predictability is necessary in order for landowners to arrange their affairs.
The majority disagrees that its inquiry subjectively “focuses on the peculiar facts leading the employee to confront the condition,”10 maintaining that the Restatement test and our caselaw alike center primarily on the perspective of the premises possessor. But the Restatement approach, even if focused on the perspective of the landowner rather than the invitee, still requires the possessor to consider an individual plaintiff‘s characteristics when anticipating whether a hazard poses an unreasonable danger rather than looking to the hazard itself to anticipate whether it poses an unreasonable danger. In other words, instead of looking only to the condition at issue to determine whether it possesses a special aspect, under the majority‘s test, the possessor looks to the plaintiff at issue to determine whether he or she possesses any special circumstances. This is markedly inconsistent with our longstanding jurisprudence.
Moreover, and relatedly, the majority‘s opinion creates the very subclass of business invitees that this Court considered and rejected in Hoffner. The Hoffner Court, in repudiating the notion that the plaintiff‘s need to enter a business rendered a condition effectively unavoidable, opined:
We reject these conclusions permitting recovery for a typical hazard confronted under ordinary circumstances as inconsistent with the law of this state regarding the duty owed to invitees and premises owners’ resultant liability for injuries sustained by invitees. The law of premises liability in Michigan provides that the duty owed to an invitee applies to any business invitee, regardless of whether a preexisting contractual or other relationship exists, and thus the open and obvious rules similarly apply with equal force to those invitees....
* * *
Perhaps what is most troubling regarding the theory of liability advanced by plaintiff is that it would result, if upheld, in an expansion of liability by imposing a new, greater duty than that already owed to invitees. By providing that a simple business interest is sufficient to constitute an unquestionable necessity to enter a business, thereby making any intermediate hazard “unavoidable,” plaintiff‘s proposed rule represents an unwarranted expansion of liability. It would, in effect, create a
new subclass of invitees consisting of those who have a business or contractual relationship. Such a rule would transform the very limited exception for dangerous, effectively unavoidable conditions into a broad exception covering nearly all conditions existing on premises where business is conducted. Such a rule would completely redefine the duty owed to invitees, allowing the exception to swallow the rule. This proposed rule appears to be an erroneous extrapolation of the basic principle that invitees are owed a greater duty of care than licensees or trespassers. Simply put, Michigan caselaw does not support providing special protection to those invitees who have paid memberships or another existing relationship to the businesses or institutions that they frequent above and beyond that owed to any other type of invitee. Neither possessing a right to use services, nor an invitee‘s subjective need or desire to use services, heightens a landowner‘s duties to remove or warn of hazards or affects an invitee‘s choice whether to confront an obvious hazard. To conclude otherwise would impermissibly shift the
focus from an objective examination of the premises to an examination of the subjective beliefs of the invitee.11
By concluding that a certain group of invitees, here employees, are entitled to special treatment based on their employment status, the majority creates a hybrid status on the land that heightens the duty owed to one type of business invitee, contrary to Hoffner. While Hoffner did not itself pertain to employment, its logic applies with equal force to the employment context. Indeed, the Hoffner Court recognized this, opining that “it cannot be said that compulsion to confront a hazard by the requirement of employment is any less ‘avoidable’ than the need to confront a hazard in order to enjoy the privileges provided by a contractual relationship, such as membership in a fitness club.”12 Even if this language is dictum, as the majority opinion suggests, Hoffner‘s emphasis that all business invitees should be treated the same should be dispositive in this context. Crucially, nothing will prevent future courts from extending the majority‘s reasoning to other classes of business invitees. It is not difficult to envision a resulting system in which even the most trivial of subjective business interests combined with a hazardous condition would impose liability—the very scenario that the Hoffner Court cautioned against. For all practical purposes, this would make landowners the insurers for injuries that occur on their land, a result that is incompatible with this Court‘s prior premises-liability jurisprudence.13
The majority understates the impact its opinion will have on our premises-liability law, failing to anticipate the far-reaching implications of its decision. Application of its plaintiff-oriented test will, over time, erode the predictability and consistency that this area of the law requires, as well as the opinions this Court has maintained in the 20 years since Lugo was decided.
Because I believe the objective standard that this Court has formulated and applied brings necessary stability to our premises-liability law, and because I would follow the Hoffner Court‘s directive that this Court refrain from creating subclasses of invitees, I would apply Lugo and its progeny in this case to conclude that an individual plaintiff‘s employment status—a characteristic unique to that individual—cannot factor into the determination of whether a condition itself contained a “special aspect.”17 Consequently, a person‘s need to encounter an open and obvious danger in order to reach his or her place of employment cannot create a special aspect under the law.18
Applying these principles to this case, even accepting as true that Livings would have necessarily needed to walk across ice and snow to report for work,19 I conclude
II. CONCLUSION
With today‘s decision, the majority departs from nearly two decades of this Court‘s premises-liability jurisprudence by transforming the special-aspects doctrine from an objective inquiry, focused on the nature of a readily observable condition itself, to a plaintiff-focused inquiry encompassing the personal inclinations of each particular plaintiff encountering that condition. In setting forth and applying this standard, the majority creates the very subclass of invitees that this Court rejected in Hoffner. I disagree with the majority‘s endorsement of Restatement § 343, comment f, Illustration 5, as that illustration is not only inconsistent with our caselaw, but its application will inject unpredictability into our premises-liability law, undoubtedly leading to future inconsistent rulings based on the “special circumstances” of each plaintiff at issue. I would apply this Court‘s well-established open and obvious danger caselaw to conclude that a person‘s employment is not a relevant consideration in determining whether a condition was itself “effectively unavoidable.” For these reasons, I would reverse the Court of Appeals’ judgment and remand this case to the trial court for entry of summary disposition in defendant‘s favor.
Brian K. Zahra
STATE OF MICHIGAN
SUPREME COURT
ESTATE OF DONNA LIVINGS,
Plaintiff-Appellee,
v
No. 159692
SAGE‘S INVESTMENT GROUP, LLC,
Defendant-Appellant,
and
T & J LANDSCAPING & SNOW REMOVAL, INC., and GRAND DIMITRE‘S OF EASTPOINTE FAMILY DINING,
Defendants.
CLEMENT, J. (dissenting).
In Hoffner v Lanctoe, 492 Mich 450, 470; 821 NW2d 88 (2012), this Court rejected the prospect of “creat[ing] a new subclass of invitees consisting of those who have a business or contractual relationship” with a premises owner and to whom the premises owner owed a heightened duty of care. Yet today, the majority does just that: it holds “that an open and obvious
As the Chief Justice notes, the traditional rule for negligence actions in Michigan was the doctrine of “contributory negligence,” in which any negligence on the part of the injured party was a bar to recovery. Michigan was no outlier in this regard; the contributory-negligence doctrine was, instead, the ordinary rule in the common-law world, a reality reflected in the treatment of the subject by the First Restatement of Torts. Thus, under the First Restatement, a premises owner was “subject to liability for bodily harm caused to business visitors by a natural or artificial condition [on the land] if, but only if, he . . . ha[d] no reason to believe that they [would] discover the condition or realize the risk involved therein . . . .” 2 Restatement Torts, § 343(b), pp 938-939.
[This rule] thus provided an exemption from liability when a business visitor was injured by a known or obvious danger, regardless of case-specific circumstances. Under this bright-line exemption, the only question of fact that might be allocated to the jury is the question whether the condition was in fact known or obvious. [Marks, The Limit to Premises Liability for Harms Caused by “Known or Obvious” Dangers: Will It Trip and Fall Over the Duty-Breach Framework Emerging in the Restatement (Third) of Torts?, 38 Tex Tech L Rev 1, 27 (2005).]
This principle was well illustrated in Garrett v WS Butterfield Theatres, 261 Mich 262; 246 NW 57 (1933). There, the 70-year-old plaintiff stepped out of a dimly lit lounge into a bathroom with a 4.5-inch step from the doorway into the room. She fell at the step, was injured, and won a jury trial. We reversed, setting aside the jury‘s verdict:
Different floor levels in private and public buildings, connected by steps, are so common that the possibility of their presence is anticipated by prudent persons. The construction is not negligent unless, by its character, location, or surrounding conditions, a reasonably prudent person would not be likely to expect a step or see it. . . .
Argument is made that the dim lighting of the lounge contrasted with the bright lighting in the toilet room and the color scheme of the toilet floor had such effect upon the visibility of the step as to render the question of negligence in maintaining it for the jury.
Toilets are frequently put in left-over spaces and have vagaries of construction. The door was a warning that there might be a difference in floor levels. The act of opening the door towards him would require a person to pause long enough to have ample opportunity to see the step. The situation contained no element of a trap. A reasonably prudent person, watching where he was going, would have seen the step. Defendant is not under legal duty to prevent careless
persons from hurting themselves. [Id. at 263-264.]
This principle—that the defendant was under no legal duty to prevent careless persons from hurting themselves—was the essence of the contributory-negligence rule that was traditionally used in Michigan. We reaffirmed it later that same year in another case involving steps, Boyle v Preketes, 262 Mich 629; 247 NW 763 (1933). It was only decades later, with the relatively recent decision in Placek v Sterling Hts, 405 Mich 638; 275 NW2d 511 (1979), that we largely did away with the doctrine of contributory negligence and instead adopted the rule of comparative negligence, which allows an injured party‘s damage award to be reduced by the degree to which they contributed to their own injury, but not eliminated.
The problem we face, however, is that the Second Restatement was written before the comparative-negligence revolution in American tort law. Instead, the Second Restatement was still structured around the Garrett/Boyle rule of contributory negligence: “[T]he plaintiff‘s contributory negligence bars recovery against a defendant whose negligent conduct would otherwise make him liable to the plaintiff for the harm sustained by him.” 2 Restatement Torts, 2d, § 467, p 515. As a result, what the Chief Justice describes as the Second Restatement‘s “tweak[]” of the First Restatement‘s premises-liability rules concerning open and obvious dangers was the American Law Institute‘s effort at providing broader avenues for relief in a contributory-negligence world. The Second Restatement‘s premises-liability rules must be understood in this context.
On the one hand, the Second Restatement broadened the premises owner‘s apparent duty to protect invitees. While § 343 of the First Restatement imposed liability only when a landowner “ha[d] no reason to believe that [invitees would] discover [a dangerous] condition or realize the risk involved therein,” the Second Restatement expanded § 343 to impose liability when the owner “should expect that [invitees] will not discover or realize the danger, or will fail to protect themselves against it[.]” (Emphasis added.) The Second Restatement thus contemplated that a premises owner would need to protect invitees even from hazards they could reasonably be expected to “discover,” so long as the premises owner could expect that invitees would “fail to protect themselves against it . . . .” “The disjunctive clause, ‘or will fail to protect themselves against it,’ implies extension of possible liability to known or obvious conditions,” and thus “sets out a full-blown and ever-present duty of reasonable care owed to invitees.” Limit to Premises Liability, 38 Tex Tech L Rev at 25, 29. “If the [American Law Institute] intended complete abrogation of the First Restatement‘s obvious-danger immunity, it would have adopted section 343 as revised in the Second Restatement and said no more.” Id. at 29.
But the Second Restatement had more to say. It added a new section, § 343A, which acknowledged its basic contributory-negligence regime by asserting that “[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.” 2 Restatement, 2d, § 343A(1), p 218. “The first clause of section 343A, up to the word ‘unless,’ seems to carry forward from the First Restatement a decision to limit, in some manner, the negligence liability of invitors when invitees are injured by known or obvious dangers.” Limit to Premises Liability, 38 Tex Tech L Rev at 29. That the premises owner is “not
Some courts have refused to try to fit the Second Restatement‘s square peg into the round hole of comparative negligence. For example, the federal
Michigan did not go this route. Instead, as noted by the Chief Justice, this Court tried to reconcile the Second Restatement with a rule of comparative negligence in Riddle v McLouth Steel Prod Corp, 440 Mich 85; 485 NW2d 676 (1992). We insisted that “[t]he adoption of comparative negligence in Michigan does not abrogate the necessity of an initial finding that the
Consequently, because the danger of tripping and falling on a step is generally open and obvious, the failure to warn theory cannot establish liability. However, there may be special aspects of these particular steps that make the risk of harm unreasonable, and, accordingly, a failure to remedy the dangerous condition may be found to have breached the duty to keep the premises reasonably safe. [Id.]
The basic confusion, however, is this: if a premises owner faces no liability whatsoever for injuries caused by at least some obvious hazards, what aspect of a premises-liability action does the obviousness of such a hazard relate to—duty or breach? The “ambiguity of the Second Restatement‘s rule that the land possessor is ‘not liable’ for harms caused by obvious dangers, ‘unless the possessor should anticipate the harm’ nonetheless,” Limit to Premises Liability, 38 Tex Tech L Rev at 39, is the source of the problem. In Riddle, 440 Mich at 95, we emphasized “the necessity of an initial finding that the premises owner owed a duty to invitees,” supporting an interpretation that premises owners are “not liable” because they owe no duty to the plaintiff—a plaintiff cannot satisfy that “initial finding” as to obvious hazards. But who makes that initial finding—the judge or a jury? Traditionally, we have said that “the court and jury perform different functions in a negligence case,” one of which is that “the court decides the question[] of duty . . ., and the jury determines what constitutes reasonable care under the circumstances.” Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 500; 418 NW2d 381 (1988). This comports with the Second Restatement, which says that “[i]n an action for negligence the court determines . . . whether [the alleged] facts give rise to any legal duty on the part of the defendant[.]” 2 Restatement, 2d, § 328B(b), p 151.2 The Restatement‘s categorical “not liable” rule from § 343A(1) would be consistent with a decision made by the court as a matter of law under § 328B(b). Yet the “unless” clause of § 343A(1), imposing liability if “the possessor should anticipate the harm,” appears intrinsically fact-based (and thus a question for the jury). In Bertrand, 449 Mich at 617, we tried to resolve this by claiming that “[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.” But this statement that “the existence of duty” is a “question[] for the jury to decide” appears to be a significant departure from our caselaw, is inconsistent with at least § 328B(b) of the Second Restatement,
Bertrand struggled not only with the inconsistency between § 343A(1) and § 328B(b) of the Second Restatement; it also struggled with the comments to § 343A itself. In Bertrand‘s companion case, the plaintiff “stumbled and fell on an unmarked cement step” while leaving a public restroom. Id. at 618. The plaintiff “alleged that the defendant was negligent in failing to mark the step with a contrasting color, [or] by failing to warn of the additional step . . . .” Id. We reversed the Court of Appeals’ resuscitation of the plaintiff‘s case and took the matter out of the hands of a jury because “[t]he plaintiff‘s only asserted basis for finding that the step was dangerous was that she did not see it,” but she “ha[d] not presented any facts that the step posed an unreasonable risk of harm . . . .” Id. at 621, rev‘g Maurer v Oakland Co Parks & Recreation Dep‘t, 201 Mich App 223 (1993). This meant that “the plaintiff ha[d] failed to establish anything unusual about the step that would take it out of the rule of Garrett and Boyle.” Id. By reaffirming Garrett and Boyle, we reaffirmed a “no duty” theory for open and obvious hazards in premises-liability cases, making the plaintiff‘s failure to see the open, obvious, and ordinary step a complete liability shield for the defendant as a matter of law. On the other hand, the dissent noted that the Restatement and its comments “provide that the landowner owes a duty to take reasonable precautions to protect invitees where their attention may be distracted, or they are forgetful.” Id. at 627 (LEVIN, J., dissenting). This is true; the Restatement says that “reason to expect harm to the visitor from known or obvious dangers may arise ... where the possessor has reason to expect that the invitee‘s attention may be distracted, . . . or [that he] will forget what he has discovered, or fail to protect himself against it.” 2 Restatement, 2d, § 343A, comment f, p 220. In my view, both the debate between the majority and dissent in Bertrand, as well as Bertrand‘s tension with Williams, expose the ambiguity in the Second Restatement‘s treatment of this subject.
In light of this confusion, we “attempted to more fully reconcile [our] no-duty rule with section 343A,” Limit to Premises Liability, 38 Tex Tech L Rev at 42, in Lugo v Ameritech Corp, 464 Mich 512, 516; 629 NW2d 384 (2001). There, we held that “the open and obvious 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.” Thus, our rationale for the open and obvious danger doctrine being a potentially complete shield for a premises owner‘s liability was because we said that it ultimately related to the duty the premises owner owed to invitees. The only harms that we held the premises owner should “anticipate” were harms caused by a hazard that had “special aspects“—“something out of the ordinary . . . 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. This “special aspects” doctrine continues to be what we use. In Hoffner, 492 Mich at 471, we emphasized that it was “impermissibl[e] [to] shift the focus from an objective examination of the premises to an examination of the subjective beliefs of the invitee.”
Whatever the faults of this duty-based open and obvious danger analysis in premises-liability actions, it appears to me to at
5. 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, 2d, § 343A, comment f, p 221.]
As the majority notes, this illustration “maps almost perfectly onto the current case.” But given the contradictory nature of § 343A and its comments, see Koutoufaris, 604 A2d at 395, we have little explanation of why “A is subject to liability to C“—in particular, the Restatement offers inconsistent guidance about what the relative roles are for the judge and jury in reaching this result. “Both the rule and its comments fail to clearly indicate whether ‘not liable’ means no duty or no breach and, in turn, who usually decides whether ‘the possessor should anticipate the harm’ nonetheless, the judge or the jury.” Limit to Premises Liability, 38 Tex Tech L Rev at 39.
Under Lugo and Hoffner, Michigan has an answer to this conundrum. Because the open and obvious danger doctrine relates to whether the premises owner owes a duty to invitees, it is a question of law for the court to resolve. I am not all that wedded to this as the best answer we could reach, but I prefer it to continuing to wrestle with the ambiguities of the Second Restatement. As a result, without an alternative as clear as our status quo, I would keep employing our status quo; and, because I do not believe the majority‘s conclusions square with Hoffner, I dissent.
Elizabeth T. Clement
WELCH, J., did not participate in the disposition of this case because the Court considered it before she assumed office.
Notes
Under this analysis, the common winter conditions of snow and ice seemingly do not constitute the “unreasonably dangerous” condition needed to preclude application of the open and obvious danger doctrine. Again, I need not resolve this issue today, as my conclusion that Livings‘s desire to reach her place of employment did not render the condition effectively unavoidable is dispositive. This is simply another line of reasoning that calls into question the majority‘s holding.[W]hen read together, our decisions appear to indicate that the central inquiry is whether an open and obvious condition gives rise to an unreasonable risk of harm despite its open and obvious nature and that a hazard may pose an unreasonable risk of harm if: (1) the condition creates a substantial risk of death or severe injury, or (2) the condition is effectively unavoidable. While the first category would seem almost necessarily to give rise to an unreasonable risk of harm—as any potential injury caused by the condition would likely be severe—a condition fitting within the second category would not seem necessarily to have the same impact.