*1
Mich 450
HOFFNER v LANCTOE
Argued
31,
July
Docket No. 142267.
December
2011. Decided
2012.
denied,
Rehearing
joined
of the
conclusion
Justice
criticisms
Cavanagh’s
separately
owed no
to Hoffner
wrote
that the Lanetoes
majority’s
express
at
far the
version
consternation
how
Quin-
strayed
Michigan precedent in
special-aspects
from
doctrine
(1975),
Co,Inc,
A is not liable for dangers, liability may special aspects but arise when of a condition unreasonable; even an make and obvious risk under this exception, liability may danger limited arise when the is unrea- sonably dangerous danger effectively unavoidable; or when danger unavoidable, effectively for an to be person, practical compelled purposes, required for all must dangerous confront the hazard. Negligence Right — - - — Duty Liability 2. Premises Invitees Contractual To Use Services.
Possessing right subjec- contractual use services or an invitee’s heighten need or desire tive to use services does not a landowner’s duties to remove or warn hazards and does affect an invitee’s choice about to confront whether an obvious hazard. Cossi) Law (by Cossi A. Dennis for Charlotte Offices Hoffner. Pope,
Dean & PC. Michael K. (by Pope), Richard and Lori Lanctoe.
YOUNG, C.J. Michigan, being above the 42nd parallel latitude, of north prone winter. And with winter sidewalks, comes snow and ice accumulations on park- lots, roads, ing and other outdoor surfaces. Unfortu- nately, snow, ice, the accumulation of slippery other surfaces regularly hazards on traversed citizens of this state results in innumerable and inju- mishaps year. each ries This case tests the extent a premises owner’s for one of those winter-related acci- case, dents. In this recognized sidewalk, posed by yet ice on a chose to confront the hazard in an ultimately unsuccessful to enter effort premises. Plaintiff claims the premises’ owners *5 HOFFNER V LANCTOE Court premises’ injuries, while liable for her should s plaintiff because are not liable they argue owners ordinary, open of an as the result occurred accident condition. in both its case is unremarkable In this many regards, Michigan. in Yet occurrence frequent and its simplicity applica- surrounding there has been some confusion wintry conditions. obvious doctrine open tion of the a to use owes Michigan, premises possessor In an unreasonable care to invitees from protect reasonable on the dangerous conditions by risk of harm caused However, and ice conditions. including snow premises, dangers and obvious liability open does not arise an open make even aspects unless of condition special This in- unreasonably dangerous. and obvious risk “effectively it unavoidable” for clude situations which is inherently hazard such an posed an invitee to avoid the dangerous condition. hazard in this that the reject plaintiffs argument
We had a effectively unavoidable because case was Neither the entering premises. interest business underlying the principles of this state nor the caselaw support and obvious” doctrine “open well-established invitee” theory expanded of an “business plaintiffs doctrine, whereby exception to the have public a business frequenting invitees caused right injuries to sue tort for unassailable Instead, longstanding and obvious conditions. by open apply the law of principles governing case, exceptions their traditional force to this with are, and are intended and obvious doctrine “special aspects” be, limited. The touchstone must be characterized the condition analysis is that Thus, “unreasonably harm. unreasonable risk its dan- just that —not just hazard must be dangerous” 492 MICH450 Opinion of the Court gerous hazard, one unreasonably but that is And so. must be more than theoretically or retrospectively dangerous. Similarly, an “effectively unavoidable” con- dition inherently must be an dangerous hazard that a person is inescapably required to confront under the case, In circumstances. the fact plaintiff, invitee, business had a right contractual to enter the premises does not mean that she was unavoidably *6 compelled to confront icy condition.
We in part reverse the judgment of the Court of and remand Appeals this case to the circuit court for entry of summary disposition in favor of defendants Richard and Lori Lanctoe. The ice on the sidewalk was obvious, and and plaintiff provided has not evi- dence special aspects of the condition justify that imposing liability on the Lanctoes despite obvious nature of the danger.
I. FACTS AND PROCEDURAL HISTORY Plaintiff Charlotte Hoffner had a paid membership to center, a fitness Fitness Xpress, one of several tenants located in a commercial building Ironwood, Michi- gan.1 only There is one entrance Xpress, to Fitness which is serviced a sidewalk that along runs length of the building and connects the building to its parking lot. The building, sidewalk, and parking lot are all owned and maintained by defendants Richard and Lori Lanctoe. Under the agreements lease between the building’s business Lanctoes, tenants and the the Lanc- toes are responsible for snow removal from the parking lot and sidewalk, although some tenants occasionally salt the sidewalk in front of the building. opinion “plaintiff” References in this are to Charlotte Hoffner and insurer, not to her Michigan, medical Blue Cross Blue Shield of which party plaintiff.
intervened as a Hoffner v Lanctoe the Court 2006, plaintiff January At 11:00 a.m. on around intent to exercise. building with the drove had cleared and salted Although already the Lanctoes day, by earlier that lot and sidewalk parking that the sidewalk time arrived she observed plaintiff Plaintiff Xpress. at the entrance to Fitness icy was roof that could “see the ice and the was stated she Notwithstanding her awareness of dripping.” conditions, that the ice plaintiff opinion formed the and decided to “didn’t look like it would be bad” “it building. plaintiff explained, enter the As and “I that I could make just steps,” thought a few ice, injuring fell on the her Unfortunately, it.” she back. brought the instant subsequently
Plaintiff Lanctoes, as well as Fitness liability against suit All operator. owners and defendants Xpress its here, defen- summary disposition. moved for Relevant pursuing dants was barred from argued her claim because of the doctrine, visible, plainly that the ice was given confronting Goge- before it. recognized which she *7 denied all of the defendants’ motions bic Circuit Court summary disposition, reasoning that there was icy the hazard was question regarding of fact whether part jury in could “effectively unavoidable” because had the to right building find that to access her The circuit court ex- get membership. value for entrance, and the fact that “So with one plained, there, to in had only good go not had reason [plaintiff] there, had an go contractually [plaintiff] business to that were equipment interest the activities inside there.” appeal, leave to and the Court sought
Defendants
part
affirmed in
and reversed
unanimously
Appeals
In believed that panel because there did not Hoffner, exist alternative route which as an invitee a contractual right facility, with to use the could enter the building, and obvious doctrine did a bar to claim. plaintiffs serve as
The Lanctoes filed an application appeal for leave to Court, in this and we directed the clerk to schedule arguments on whether grant application for leave appeal or take other action.4
II. STANDARD OF REVIEW
The circuit court denied the Lanctoes’ motion for
summary disposition pursuant
2.116(C)(10),
to MCR
(2010).
Lanctoe,
449;
App
v
III. ANALYSIS
A. PRINCIPLES OF LAW
The law of premises
liability Michigan has its
foundation in two general
First,
precepts.
landowners
must act in a reasonable manner
guard
against
harms that
threaten the safety and security of those
who enter
their
Second,
land.6
and as a corollary,
landowners
insurers;
are not
is,
they are not
charged with guaranteeing
safety
of every person
who comes onto their land.7 These principles have been
used to establish well-recognized rules governing the
rights and responsibilities of both landowners and those
who enter their land. Underlying all these principles
and rules is the requirement
that both the possessors of
land and those who come
onto
exercise common sense
prudent
judgment when confronting hazards on
the land. These rules balance a possessor’s ability to
exercise control over the premises with the invitees’
Rozwood,
Maiden v
(1999).
109, 118,
120;
461 Mich
obligation
dangers.
apparent
themselves from
of the rules
any
discussion
starting point
The
establishing what
liability law is
premises
governing
onto
those who come
owes to
possessor
a
duty premises
a
invitees,8 a landowner owes
to
regard
land.
his
With
from
invitees
protect
reasonable care
duty to use
condi-
by dangerous
posed
of harm
unreasonable risks
Michigan
provides
land.9
law
on the owner’s
tions
care when
duty
ordinary
of
liability for a breach of
know of a
knows or should
premises possessor
of
premises
on the
which
condition
dangerous
defect, guard
and
to fix the
is unaware
fails
invitee
defect,
of the defect.10
or warn the invitee
against
by the
required
nor
practicable
Perfection is neither
circumstances,
the overrid
law,
ordinary
“[u]nder
to take reason
encouraging people
of
ing public policy
duty
a
safety
imposing
their
precludes
able care for
own
ordinary [conditions]
make
of land to
possessor
on the
”11
duty
Thus,
component
an
‘foolproof.’
integral
“open
a defect is
to an invitee considers whether
owed
duty
of land “owes no
possessor
obvious.”12The
and obvious
dangers
open
or
that are
protect
warn”
8
will,
course, depend
hy
possessor
duty
premises
of care owed
a
licensee,
invitee,
trespasser.
plaintiff
a
See
is an
a
on whether
591,
Fellowship,
Mich
generally
Abundant
462
Stitt v Holland
Life
(2000).
case,
undisputed
596-598;
In this
it is
In
whether a
a
condition
such
uniquely dangerous potential for severe harm as to consti-
“special aspect”
barring liability
tute a
and to avoid
in the
ordinary
open
danger,
manner of an
it is
important
proper
to
perspective,
maintain the
which
tois
is,
posed
priori,
consider the risk
a
condition
would,
particular
before the incident
in a
involved
case. It
example,
inappropriate
for
retrospective
be
to
in a
conclude
13
Corp,
85, 96;
v McLouth
Riddle
Steel Prod
440 Mich
485
676
NW2d
Lugo,
516; Bertrand,
(1992);
accord
464 Mich at
Mich
449
at 610-611.
14
Rubin,
Joyce
v
App
238;
(2002);
642
249 Mich
NW2d 360
(On
Burger
Novotney
King
Remand),
Corp
470, 474-475;
App
Mich
(1993).
fashion that because harm, that the at suffered harm or even severe condition uniquely high This posed a risk of severe harm. issue in a case may injury less is suffer a more or severe because reasons, having idiosyncratic particular such as because of conduct, susceptibility injury engaging to in unforeseeable open and that are immaterial whether an obvious unreasonably dangerous.... [The law] does not nevertheless merely imposition liability particular allow because a open potential condition has some for severe obvious imagine Obviously, ability mere harm. that a condition highly unlikely could in severe harm under circum result reasonably stances not mean that such harm is foresee does However, able. we believe that it would be unreasonable for us recognize to fail and obvious conditions unusual unreasonably dangerous they could exist that are because present extremely high of severe harm an invitee risk the risk in is no who fails to avoid circumstances where there for such an risk of harm to sensible reason inordinate severe presented.[17] be on noting Lugo’s
It is worth the narrow emphasis “special aspects” exception nature of the doctrine. exception, Under this limited an “unusual” imposed only be “unreasonably obvious condition that dangerous” high because “present[s] extremely risk of severe harm to an invitee” where there is “no circumstances sensible for such an inordinate reason risk severe harm to The touchstone presented.”18 reasonableness, imposed being owner *11 exception “special aspects” recognizes narrow presents there exist a that a risk of could condition unreasonably high presence harm is so is its inexcusable, light open of its and obvious even nature.
17Lugo, 518 n 2. 464 Mich at 18Id. at n 2. 519 463 v Hoffner Lanctoe Opinion of the Court This Court has discussed two instances in which the of an and special aspects obvious could give hazard rise to when liability: is danger unreasonably dan- or gerous when effectively unavoidable. In circumstance, either such are dangers those that “give rise a uniquely high likelihood of harm or severity of harm if the risk is not avoided”19 and must thus from differentiated by ordinary those risks posed con- ditions or typical open Further, and obvious hazards. we have recognized that neither common condition nor an avoidable condition is uniquely dangerous.20 Thus, when a demonstrates that a special aspect genuine exists that there is a issue of material fact regarding exists, whether a special aspect tort recovery bemay permitted if the defendant breaches his Again, reasonable care. we explained Lugo: as particular activity “[I]f the or condition a risk creates harm because the invitee does not discover the condi danger, tion or realize its then the doctrine will cut off if the invitee should have discovered the and danger. condition realized its On the hand, unreasonable, other if the risk of harm remains despite despite knowledge its obviousness or of it invitee, may then the circumstances be such that required invitor precauti to undertake reasonable ons.”[21] With ice specific regard to cases, snow this Court “rejected] has the prominently cited notion that ice and snow hazards are obvious all and therefore
19 Id. at 519. 20 (such Id. at 520 (“[Tlypical dangers ordinary- and as lot) potholes parking aspects.”); Corey give special in a do not rise to these (On Davenport College Remand), 1, 8-9; Business App (2002). NW2d 21 Lugo, Bertrand, 516-517, quoting at citing Mich 449 Mich at Torts, discussing 2d, 343A, §§ pp Restatement 215-222. *12 MICH450 492
464
Opinion op the Court
any circumstances.22
liability”
under
rise
give
has
to exercise reason-
Rather,
duty
a
premises owner
and
ice
snow
care
diminish the hazards
able
measures be
accumulation,
that “reasonable
requiring
time after
accumulation of
within a reasonable
taken
injury
the hazard of
to the
and snow to diminish
ice
However,
it is also well established
invitee.”23
like
condition on the
conditions,
any other
wintry
Michigan
and obvious.24
may
open
be deemed
premises,
circumstances,
the individual
thus ask whether
courts
conditions,
surrounding
render
snow
including the
reasonably
that a
open and obvious such
ice condition
foresee the
When
prudent person would
danger.25
obvious, a
premises
is deemed
condition
Thus, as
considerably
duties are
narrowed.
owner’s
if
generally,
law
the condition
premises liability
with
obvious,
plaintiff
injured
who
only if there
summary disposition
avoid
condition
aspects
are
special
condition.26
22
Co,
261;
Inc,
&
Mich
v Great Atlantic
Tea
395
Quinlivan
Pacific
(1975).
732
235 NW2d
23 Id.
24
Inc,
320, 332-333;
Enterprises,
Mann
470 Mich
683
See
v Shusteric
Pointe,
(2004);
Ltd,
Perkoviq
466
573
v Delcor Homes-Lake Shore
NW2d
(2002).
11;
duty
for
643
212
established a
of care
Mich
NW2d
Quinlivan
Yet,
duty
regarding
and ice
a landowner’s
owners
snow
conditions.
regarding
these conditions
set forth and discussed in
must
Quinlivan
as
light
subsequent
of this
decisions in Bertrand and
understood
Court’s
See, Mann,
e.g.,
13; Corey,
App
Lugo.
n
251 Mich
We
An illustration of such a might involve, situation example, a building commercial with one exit for the general public where the floor is standing covered with water. While the obvious, condition is a customer wishing to exit the store must leave through the store words, water. In other and obvious condition is unavoidable.[27] effectively any
As with special aspect, is worth noting from the outset that our discussion in Lugo of an effectively unavoidable condition was set in the context of a condition that is inherently dangerous and poses thus severe risk of harm.
The Court of Appeals has applied this unavoidability
exception in several notable decisions. In Joyce Rubin,
the plaintiff fell on snowy
sidewalk when attempting
to
personal
retrieve
belongings from a private home.
The plaintiff argued that
the slippery condition was
unavoidable because the homeowner had refused to
provide a rug for traction and would not allow the
to enter
the house
through
alternative
means. The Court of Appeals disagreed, holding that
the exception for effectively unavoidable hazards did
not apply because the plaintiff had a choice other than
to confront the condition:
Though that she door, walkway pre to front she slippery traverse the surrounding that the condition sents no evidence uniquely high likeli “give rise circumstances would First, or that it was unavoidable risk. hood of harm” Joyce personal items an simply have removed her could that, if Debra Rubin day [the defendant] advised other door, garage allow use the she would Rubin did not her to Further, day. example unlike have to move another effectively building Lugo, trapped inside a so Joyce was not condition in encounter the she must that, Joyce specifically testified after she get order out. sidewalk, slipped she walked around twice Therefore, regular slippery condition. pathway avoid case, Joyce’s testimony though estab this is a close own available, she have used an alternative lished that could snowy Debra Rubin’s route avoid the sidewalk. While alleged place rug allow refusal to on the sidewalk or true, may inhospi through garage, if have been access table, juror aspects that the reasonable could conclude no Joyce unavoidable *14 the condition were so condition.[28] effectively forced encounter (On Re College In v Business Corey Davenport mand), icy college on outside a plaintiff steps fell affirmed the trial Appeals The Court of dormitory. action, steps that ruling court’s dismissal of the had a choice plaintiff were not unavoidable because to confront the condition: whether case, Lugo Joyce present we applying In to the only steps at slippery that the issue here were not conclude condition also there are no but steps “uniquely high that “special aspects” of the create severity if the of harm or harm” risk is likelihood that from the avoided or serve remove condition Plaintiff here testified doctrine. although steps he saw and their condition and knew App Joyce, Mich at 242-243. Hoffner v Lanctoe Opinion of the Court that there building was alternate route into the that was them.[29] by, attempted close he nonetheless to use Finally, the Court in Robertson v Blue Water Oil Co30 held that a condition effectively unavoidable —a decision which upon plaintiff and the Court of Appeals rely below In heavily. Robertson, the plaintiff, a truck driver, visited the gas defendant’s station to buy fuel and windshield washer fluid in order to operate his truck during an extreme winter storm that was occur- at ring the time and had covered the area with a layer of ice. The fell plaintiff on way station, his into the the Court of Appeals, in a split decision, held that there question was a of fact with regard to whether the open and obvious hazard was effectively unavoidable, distin- guishing Joyce and Corey:
The record contains no any evidence that there existed were, available alternatives. Even if scope there inquiry objective is limited to “the nature of the condition Therefore, at issue.” inquiry whether the effectively condition was unavoidable on the premises. Here, clearly alternative, there was no ice-free path gasoline pumps from the station, to the service a fact of which defendant had been made aware several hours previously. effectively The ice was unavoidable. argues
Defendant
that the ice was avoidable because
plaintiff
“effectively
was not
trapped.” Joyce Rubin,
(2002).
App
242;
Mich
However,
NW2d 360
Joyce
reliance
misplaced
for a number of reasons.
Although
possibility
we discussed the
that the
Joyce
gone
could have
day,
on a different
holding
our
plaintiffs
was based
testimony
on the
own
and, indeed,
she
use,
was aware
had made
of an available
any event,
alternative route. In
a reasonable trier of fact
*15
29 Corey,
App
251 Mich
at 6-7.
Co,
App 588;
Robertson v Blue Water Oil
268 Mich
trapped” because conditions, away from the drive given the weather fluid.[31] washer premises without windshield ANDAPPLICATION B. DISCUSSION exception aspects” “special The un- effectively are hazards that doctrine for obvious appli- to avoid designed exception a limited avoidable is when a doctrine cation of harm. risk of an unreasonable subjected person inability to be by an characterized Unavoidability is result, inevitability or avoided, an inescapable unavoidability in discussion outcome.32 Our given “effectively,” the use of the word Lugo tempered was or must be unavoidable that a hazard thus providing Ac- purposes. all practical inescapable effect omitted). (citations majority further The Robertson 593-594 Id. at invitee: a business fact that the was commented on the paying Finally, significantly,plaintiff customer and more commercial for defendant’s on defendant’s
who was purposes, Supreme defendant. As our he was an invitee of and thus necessarily noted, turns on the existence of status Court “invitee ” plaintiff should have contention that Defendant’s an ‘invitation.’ purpose in gone operating simply with defendant’s inconsistent elsewhere consequence gas logical defendant’s The station. its owner argument conclusion that business would he the irrational any never have its would who invites customers onto long the conditions as as for hazardous to those customers declining technically option invitation. had the customers even omitted).] (citations [I at 594 d. dissent, subject strong which would to a decision in Robertson was applied because the obvious doctrine have held that Robertson, “effectively See unavoidable.” conditions were not herein, J., dissenting). we For reasons stated App at 598-599 (Kelly, “effectively analysis majority’s unavoidable” reject the Robertson doctrine. (1997). Dictionary College See, e.g., Webster’s Random House *16 Hoffner v Lanctoe op the Court the for
cordingly, unavoidability” standard “effective that a for all re- person, practical purposes, must be quired compelled to confront a hazard. dangerous As conclusion, parallel situations in which a person has truly choice whether to confront a hazard cannot unavoidable, effectively or even so.
Plaintiff here argues the ice that caused her and, thus, harm was effectively unavoidable constituted a special aspect, right because she had a contractual Xpress enter Fitness as a member. The paid lower similarly courts held that the contractual relationship interest, thereby constituted a business qualifying invitee, as an “it would be disingenu- thus ous to relieve defendants of their Ac- duty of care.”33 existed, because no alternative route cordingly, rea- icy soned the Court of “the Appeals, sidewalk was effectively unavoidable as it related to the use premises.”34 reject recovery
We these conclusions for a permitting hazard typical ordinary confronted under circum- stances as inconsistent regard- with law of this state ing duty owed to premises invitees and owners’ resultant injuries sustained invitees. The premises liability Michigan law that the provides invitee, owed to an invitee business applies any regardless a preexisting of whether contractual or other exists, and relationship thus and obvious rules similarly with force to invitees. apply equal those This Court has stated that the crucial deter- question when mining invitee status is the commercial nature of the relationship between the owner and the other party:
33 Hoffner, App at 464. 34 Id. 492 MICH 450 Opinion of the Court imposition expense
[T]he of additional effort landowner, requiring inspect pre the landowner to visitors, directly make safe for must be tied mises and them It to the owner’s commercial business interests. advantage by inviting a commercial owner’s desire foster persons justifies imposition to visit the of a duty. short, higher prospect In conclude that we *17 pecuniary gain quid pro quo higher duty is a sort of for the Thus, care we hold that of owed to invitees. owner’s inviting persons premises pri reason for onto the is the mary determining consideration when the visitor’s status: status, plaintiff In order to establish a must invitee show premises pur were held for a commercial pose.[35] what
Perhaps
troubling regarding
theory
is most
of liability
by plaintiff
result,
advanced
is that it would
if
upheld,
expansion
liability by
new,
a
imposing
greater duty than that already
By
owed to invitees.
providing that a simple business interest
is sufficient to
to
unquestionable necessity
constitute
enter a busi-
ness, thereby making any intermediate hazard “un-
avoidable,” plaintiffs proposed
represents
rule
an un-
liability.
would,
warranted
It
expansion
effect,
create a
consisting
new subclass of invitees
of those who
have business or contractual
a rule
relationship. Such
would transform the
limited
very
exception
danger-
ous, effectively unavoidable conditions into a broad
exception covering nearly
existing
all conditions
on
premises where business is conducted. Such a rule
would completely
invitees,
redefine the
owed to
allowing
exception
pro-
swallow the rule. This
rule
posed
appears
extrapolation
be an erroneous
the basic principle
greater duty
that invitees are owed a
of care than licensees or
Michi-
trespassers. Simply put,
36 Stitt,
Co,
604;
see also Sink v Grand Trunk W R
Mich
at
(1924).
21;
Mich
that to confront a hazard compulsion require- employment any ment than less “avoidable” enjoy need to confront a hazard in order to the privi- leges by a contractual provided relationship, such as in a membership Perkoviq fitness club. illustrates that understanding overbroad unavoidability effective cannot undermine parameters the historical limited duty owed when the condition is obvious.
Thus, to
Michigan
the extent that
courts
Robert
or
son
otherwise alluded to a new breed of business
protection,
invitee
we
reasoning
disavow that
as incon
sistent with traditional
principles
premises liability
Instead,
law.
when confronted with an
concerning
issue
an open
hazard,
Michigan
should
courts
closely
hew
to the principles previously discussed. It
bears repeating
exceptions
to the open and obvious
doctrine are
designed
narrow and
to permit liability for
limited,
such
dangers only
extreme situations.38
Thus,
“unreasonably
dangerous” hazard must be
just that —not
just
dangerous hazard, but one that is
unreasonably so. And it must be more than theoretically
or retrospectively dangerous, because even the most
unassuming situation can often be dangerous under the
wrong set of circumstances.39 An “effectively unavoid
be,
able” hazard must truly
practical
for all
purposes,
one that a person is required to confront under the
A general
circumstances.
in using,
interest
or even a
right
use,
contractual
business’s
simply
services
equate
does not
with a compulsion to confront a hazard
Lugo,
(“[0]nly
special aspects
give
See
Mich
at 519
those
uniquely high
severity
rise to a
likelihood of harm
if
of harm the risk
not avoided will serve to remove that condition from the
doctrine.”).
39 See id. at 518 n 2.
*19
Hoffner
Lanctoe
of
Court
“special aspect”
not
to the level of a
and does
rise
harm.
its unreasonable risk
characterized
of
that
here, we conclude
Applying
principles
those
simple application
little more than a
case calls for
plaintiffs
doctrine to bar
claim be-
open
obvious
injured as a result of an avoidable
plaintiff
cause
was
and has
no evidence
open
danger
provided
justify
to the condition that would
special aspect
Plaintiff
the ice at the
imposition
liability.
observed
center,40
entrance to the fitness
which she desired to
freely
enter. Plaintiff
admits that she knew that the ice
posed
danger,
danger
but that she saw the
as sur-
apparently
assuming
mountable and the risk
worth
activity.
order to take
in a recreational
Plaintiff
part
risk,
admits;
was not forced to confront the
as even she
she
not
in the
“trapped”
building
compelled
extenuating
circumstances with no choice but
words,
traverse a
unknown risk. In other
previously
unavoidable,
effectively
was not
or even
so.41
Moreover,
evidence that the
plaintiff presented no
risk
of harm
patch
associated with the ice
was so unreason-
ably
inexcusable,
that
its
even in
high
presence was
light
Again,
of its
and obvious nature.
landowners
are
charged
ensuring absolutely
with a
land,
safety
person
of each
who comes onto their
even
person
when that
is an invitee. Because there is no
dispute
the ice constituted
obvious
danger,
plaintiff
proved
and because
has not
ice
generally
applied
to determine whether a
While
standard
condi
reasonably
prudent person,
tion is
and obvious is that of a
objective standard,
noteworthy
in this case that
here
actually (subjectively) recognized the hazard.
see, particularly
It
difficult
on the facts of a case
should not be
this,
contrary
all
such as
how a conclusion to the
would
hut swallow the
regarding open and
hazards.
rule
*20
patch any special aspects, plaintiff precluded had is a matter of recovering from tort as law.
IV RESPONSE TO THE DISSENTS The dissents take two but ulti- separate approaches, mately arrive at the same erroneous conclusion. Justice ignores pre- HATHAWAY’sdissent this Court’s modern that mere antici- liability entirely, concluding mises law a harm pation impose liability of is sufficient recognizes owner. Justice CAVANAGH’sdissent applicable jurisprudence regarding open Court’s dangers, ultimately expresses but his dis- that agreement jurisprudence. with We will address these in turn. approaches
We agree
general
with Justice HATHAWAY’s
observation
that anticipation
perceived
of a
harm is material to the
imposition
duty
given that,
course,
of a
of care
of
the law
not impose liability
unanticipated
does
for
or unforesee-
contrary
able harms.42 But
posi-
Justice HATHAWAY’s
tion,
it is not the
consideration relevant
whether a
question
duty
support
care exists.43 To
creates,
her view that mere
of an
anticipation
injury
se,
per
jury-submissible
of care and a
question
regarding liability
of fact
and
open
for
obvious
danger would be to render the
and
open
obvious doc-
legal nullity
trine a
because harm can
anticipated
be
(2007).
Brown,
545;
generally
See
Brown
Justice HATHAWAY’s
dissent further
on the
argues,
basis of its erroneous belief that this Court’s decision in
Quinlivan
Co,
v Great Atlantic and
Tea
Inc
Pacific
case,
opinion
controls
outcome of this
that
this
ignores
Quinlivan
To the
precedent.45
contrary,
merely
rejected a
se rule
per
barring liability for snow and ice
conditions, and the decision in this case does not affect
that holding.
per
rejected
Quinlivan
se rule
is
markedly different from
open
that of the
and obvious
doctrine, which,
duty
while it restricts the
owed for such
hazards, nevertheless
in
permits liability
certain limited
circumstances. These limited circumstances have been
discussed and
in
delineated
decisions of this Court
Quinlivan.
subsequent
While Justice HATHAWAY
apparently believes that the
analysis
involving
cases
and
open
begins
obvious doctrine
and ends with
Quinlivan,
has
opinion
pains
this
taken
to set forth the
cases and
principles
have marked this Court’s
(“The
Williams,
duty
possessor
See
429 Mich at a
of land owes
absolute,
his invitees is not
It
however. does not extend to conditions from
anticipated
dangers
which an unreasonable risk cannot be
or to
so
apparent
expected
obvious and
that an invitee
be
to discover them
himself.”).
45 Quinlivan,
interpretation nearly years and in the liability law before premises duty Quinlivan. Quinlivan only established since conditions; winter regarding care for owners well-recognized case clarifies how opinion our this duty imposed the traditional of care exceptions to Yet in apply owners these circumstances. theory “anticipation” liability, of its Justice favor law, including all this ignores Hathaway’s dissent test, “special aspects” Court’s which is test arise from an and governs liability may whether been so for uncontroversially obvious has quite some time. approach appreciate
Justice HATHAWAY’s also fails duty in a tort action is generally that whether exists court,46 and when a question of law to decided owed, duty jury- determines that a was not no court exists. Because the issue of the question submissible hazard openness “integral obviousness of a is establishing of the part” question duty,47 whether light exists in and obvious nature of a hazard an issue of the court. As province is within previously, discussed when hazard is in manner unreasonable that some question jury.48 there is a of fact for the And as this opinion explains, unreasonableness touchstone *22 46Maiden, 131; 46, 53; Higgins, Mich at Mich Murdock (1997) NW2d 639 47Lugo, at 516. (“[W]ith See, e.g., regard open dangers, id. at 517-518 and obvious genuine question the critical is whether there is evidence that creates a regarding truly ‘special aspects’ of material there are issue fact whether open typical of the and obvious condition that differentiate the risk from harm, i.e., open and obvious risks so as to create an unreasonable risk of ‘special aspect’ prevail imposing whether the of the condition should in liability upon openness the defendant or the and obviousness of the barring liability.”). prevail should condition HOFFNER V LANCTOE Opinion of the Court analysis in this test, guides which “special aspects” dis- because Justice HATHAWAY’s Again, though, opinion. concerning open caselaw ignores sent recent analysis “special aspects” doctrine and the there is a erroneously ques- it concludes that entirely, case, even jury fact to decide this tion of for off and obvious doctrine cuts though that her dissent matter of law. To the extent as a framework controlling premises liability abandons the controlled, analysis that a different we and wishes dissent, and not believe that is Justice HATHAWAY’s Michigan that fails to consider law as set opinion, this forth in our precedents. Justice dissent takes issue with this CAVANAGH’s doctrine
opinion’s application or, more it takes issue with how Michigan specifically, time, culminating in developed this doctrine has over this decision. Justice CAVANAGH is entitled to While law, disagree with the of this area of the development necessary clarity that it we believe offers allows type by setting efficient resolution of this of case objective forth an and workable framework.
Contrary
charge,
respect-
to Justice CAVANAGH’s
we
fully
disagree
opinion
Michigan
renders
law
illogical or unworkable.
Justice CAVANAGH’s dissent
effectuating
characterizes
this decision as
a sea-
change because,
alleges,
duty only
he
now an invitor’s
compelled
arises at the moment an
individual
hazard,
confront
unavoidable
and thus
law “no
longer requires
prospectively anticipate
the invitor to
occur,
harm
despite
whether
will
hazard’s
and obvious nature.”49 With all due
we be-
respect,
lieve that Justice
misapprehends
CAVANAGH’s dissent
holding.
“effectively
compo-
our
unavoidable”
[49]
Post at 488.
*23
nent of the
Instead,
duty as a whole.
it is but
owner’s
component
one
of that doctrine
that
serves as one
exception
general
precluding
liability
to the
rule
for
and
open
dangers.50
opinion,
With this
we do
broadly erase
limit
duties to
invitors’ duties or
those
conditions,
effectively unavoidable
as Justice CAVANAGH’s
alleges. Instead,
caselaw,
consistent
our
dissent
with
we
standing
may
rule that
simply apply
only be
on invitors for an
imposed
condition
there are
special aspects
when
condition.51
argue
opinion
Both dissents also
that this
is incon-
sistent with the Second Restatement
begin
of Torts. We
general
with the
observation that
Court
has never
adopted wholesale the Restatement
While
approach.
this Court
guidance,
has looked to the Restatement
caselaw,
it
our
developed through
years,
as
that
opinion
large part
Our
in this case focuses in
on effective unavoid
ability only
plaintiff argues
because
that it was the unavoidable nature of
special aspect
hazard
this case that created a
and
obvious condition.
myriad
respond
hypothetical
We decline to
situations that
Cavanagh posits
opinion
Justice
in which the rules articulated in this
Instead,
application
have some
in the future.
we believe
we
clearly
governing principles
applicable
have
articulated the
rules
guide
apply
principles
future courts that will have to
these
and rules
are,
cases, admittedly
in what
in some
difficult factual scenarios. As
any
principle
with
other
or rule of the common law articulated in the
previous
years
history,
of our state’s
to the extent
governing principles
applicable
rules set forth
this case must be
applied
cases,
further refined or
in future
we will confront those cases
they
particular, however,
as
In
arise.
because it is relevant to some of
situations,
hypothetical
Justice CAVANAGH’s
we reiterate that
issues
arising
application
and obvious doctrine are to be
using
objective
rejection
plaintiff’s
decided
standard —as our
position
application
of the standard in this case illustrates. See
Lugo,
also
extraordinarily liability legal broad imposition by the propositions posited dissents. dissents,
In final we believe it is response again noting key, undisputed worth facts of this case on which the dissents would impose potential owners. The facts of this case occurred in Peninsula, Michigan’s in the dead of winter. On Upper accident, the morning owners had cleared and salted the sidewalk before the opening However, business. the time plaintiff arrived at the later that building morning, patch a small ice had portion re-formed over a of the sidewalk. We know from testimony herself that ice patch unreasonable or unusual some manner because she believed that she could overcome it and affirma- tively attempted to do so. There are no allegations anything every this case of other than what Michigan *25 citizen compelled to confront countless times every winter. the
While
dissents would like to characterize this
as
opinion
closing
injured
the courthouse door on
per-
sons,
we are
preserving the balance our law has
known, common,
struck with
to
regard
liability for
ordinary dangers. Contrary
arguments,
to the dissents’
the rationale for
here
imposing liability
exists neither
the world of the Second Restatement nor in Michigan
Instead,
law.
posit
regime whereby
dissents
pre-
mises owners would become virtual
insurers to those
who enter their property. Were it to be
adopted,
dissents’
that
position
they would leave the determina-
tion regarding
scope
of the
owed for an open
danger
and obvious
as a question
jury
for the
would
significantly
predictability
reduce
in the
pro-
law. The
cess
by jury
which the dissents would resolve
trial
every claim
and
involving
obvious
Lanctoe
Hoffner
Opinion of the Court
any land-
for
impossible
render
essentially
would
remedied
must be
harms
anticipate what
owner to
of the law
goal
The
liability.56
avoid
in order to
advance
deter-
only jury
uncertainty whereby
create
not to
duty.
a defendant’s
fact,
scope
mines,
after
stan-
clear
is to establish
of the law
Rather,
goal
their
the extent of
to ascertain
citizens
that allow
dards
accident
liabilities,
duties,
responsibilities
and
before
was created
doctrine
The
occurs.
the harm was
in which
suits
preclude
to
precisely
avoided.
have been
and should
V CONCLUSION
interpreta-
this Court’s
here reaffirms
decision
Our
law of
principles
of fundamental
tion
interests of
competing
balance
These rules
liability.
land, ensuring
enter their
those who
landowners
unrea-
forced to endure
should be
person
no
that while
the law com-
exists that
risks,
simple fact
sonable
for
responsibility
accept personal
individuals
pels
hazards,
includ-
avoiding apparent
well-being by
their
The law
winters.
by Michigan
precipitated
ing those
“special
harm. The
recovery
every
provide
does not
in circum-
recovery only
permits
exception
aspects”
of harm
high likelihood
uniquely
present
stances
nature.
a hazard’s obvious
notwithstanding
chose
plaintiff
the sidewalk
ice
patch
obvious,
has not
confront
keep his
require
either
a landowner
would thus
The dissents
people
ensure
and for all
perfect
at all times
property condition
*26
expensive
protracted
subject
and
any injury,
himself
against
any
injury arising
condition. We
from
common
litigation
as a result
represents
proposed
Fork
Morton’s
hardly
the dissents’
believe that
compelled
framework,
a framework
much less
practical and workable
law.
our
provided special evidence of aspects of the condition to justify imposing liability on defendants despite and obvious nature of the danger. judgment of the Court of Appeals is reversed part, this case is remanded Gogebic to the Circuit Court for entry of summary disposition in favor of the Lanctoes. Mary JJ.,
Markman, Kelly, Beth Zahra, con- C.J. Young, curred with
*27
CAVANAGH, J.
I
(dissenting).
agree
While
with the
general principles expressed in Justice
Hathaway’s
dis-
sent, I write separately to elaborate
my
disagree-
ment
majority.
with the
Today’s majority opinion builds
on the so-called “special aspects” doctrine by holding
that “effectively unavoidable” means that
the injured
person must have been “compelled by extenuating
circumstances with no choice but to
previ-
traverse a
ously unknown risk.” Ante at 473. Because
open-
and-obvious doctrine has been interpreted as establish-
ing a no-duty rule,1 and because
the majority
erroneously
decided Lugo v Ameritech Corp, Inc, 512;
Mich
(2001),
NW2d 384
special-
aspects doctrine defines the sole exception to the open-
doctrine,
and-obvious
today’s majority opinion means
when those unexplained extenuating circum-
stances arise and force a person to
confront an
obvious hazard does
possessor suddenly
acquire a duty to address the dangerous condition.
Thus, the majority further narrows the exceptions to
the open-and-obvious doctrine to
very
rarest of
situations, without
elaborating
on when
those
explained
opinion,
As
all
question
footnote
of this
I
whether
questions
open-and-obvious
related to the
doctrine should be character
relating
premises possessor
ized as
rather than to the
standard of care.
Dissenting Opinion by Cavanagh,
HOFFNER V LANCTOE
J.
[483]
ill-wrought
This
may arise.
circumstances
extenuating
premises pos-
immunizes
our precedent
from
departure
of their
arising out
liability
all
nearly
from
sessors
major-
Because
duty.
long-recognized
aof
breaches
excep-
narrowing of
redefining and
relentless
ity’s
inevitably
doctrine will
open-and-obvious
to the
tions
in or
to reside
who choose
harm of those
to the
work
dissent.
respectfully
I
Michigan,
visit
INCONSISTENT WITH
OPINION IS
I. THE MAJORITY
OF TORTS
THE RESTATEMENT
AND
OUR PRECEDENTS
majority
Justice
agree
with
HATHAWAY
I
departure
another unwarranted
yet
represents
opinion
precedents,
and well-reasoned
longstanding
from our
on the Restatement
historically relied
have
which
Steel Prod
See,
Riddle v McLouth
e.g.,
Law of Torts.
(1992);
92-94;
676
85,
485 NW2d
440 Mich
Corp,
596,
Mich
Hosp, 366
Osteopathic
Muskegon
v
Ackerberg
(1962).
our tradi-
Based on
599-600; 115
290
NW2d
Restatement,
estab-
it well
tional adherence
a legal
an invitor owes
in
jurisprudence
our
lished
“
invitees
protect
exercise reasonable care
duty
‘to
aby danger-
harm caused
unreasonable risk of
from an
knows or
land’ that the landowner
condition of the
ous
discover, realize, or
the invitees will
know
should
Ford, Inc,
Bertrand v Alan
against.”
themselves
protect
(1995),
609;
quoting
606,
537 NW2d
449 Mich
Stores,
Mich
Inc, 429
Drug
Cunningham
v
Williams
(1988),
2 Restatement
citing
495, 499;
In Particularly doctrine. open-and-obvious to the exceptions 343A(1), Torts, 2d, § 2is Restatement to this case relevant of land is possessor that a provides which p of known or obvious or warn duty protect relieved harm anticipate if should possessor “the dangers The comments knowledge or obviousness.” such despite 343A(1) state, part: in pertinent §on are, however, possessor of land cases in which the
There anticipate dangerous condition will that the can and should notwithstanding invitee its physical harm to the cause danger. possessor is not In such cases known or obvious he reasonable care which owes relieved of the duty may require him to protection. This invitee for his invitee, protect steps to or to take other reasonable warn activity, him, against the known or obvious condition if expect invitee will reason to possessor has 343A(1) physical § [Id. harm. at com- nevertheless suffer added).] f, p (emphasis ment special- its however, majority created Lugo, In aspects relying solely special aspects test — unreasonably dangerous— make condition Michigan systematic rewriting began *29 excep- in that narrows the way law a premises-liability Lugo, doctrine. open-and-obvious to the tions to the Lugo, exceptions I in the at 518-520.3 As noted 3 Lugo on Bertrand’s use of majority erroneously the term seized The stairway aspect made it “special aspects” of a to describe some despite being open It unreasonably dangerous, hazard and obvious. the my simple in a later that this term would be used never intention was increasingly designed apply narrow test case to form the basis for Lugo: in exceptions open-and-obvious doctrine. As I stated to the to all determining may “special aspects” in be considered [W]hile suspended, of liability the existence or absence should be
whether necessarily aspects particular be outcome special in a case will not Restatement, Instead, pursuant courts must to the determinative. presented, whether is on whether an unreasonable focus 486 492 MICH 450 Dissenting Opinion Cavanagh, J. doctrine “be
open-and-obvious simply cannot summa- rized in whether of a ‘special aspects’ terms of condition dangerous.” make the harm unreasonably risk of Id. at J., Rather, concurring). while the “spe- (CAVANAGH, cial aspects particular of a condition be relevant to a determination whether should im- posed ., . . of special aspects consideration should be made in the context Restatement test.” Id. at 542; see, also, Mann, 470 336 (CAVANAGH, J., Mich at (“I concurring part dissenting part) remain committed to the view that majority’s singular [special aspects] approach is wrong inconsistent with Michigan’s premises liability jurisprudence.”).
In discussing special aspect whether makes a con unreasonably dition dangerous, Lugo majority gave the example puddle of covering water the floor in front of only available exit to a building. Lugo, 464 Mich at 518. Because a wishing customer to leave the water, store majority must cross noted that the condition “effectively was unavoidable.” Id.5 anticipated, harm should be and whether the of care has been J., [Lugo, concurring).]
breached.
Mich at
543 (CAVANAGH,
majority opinion repeats
The
that “neither a common condition nor
uniquely dangerous.”
an avoidable
condition
Ante at 463. This seems
Lugo’s example
puddle
blocking
only
inconsistent with
of a
of water
being
building
effectively
exit to a
as
unavoidable. Puddles of water in
Michigan
patrons
front of exits
are common
as
track snow in when
entering
building.
puddle
It seems that
if a mere
of water can be
uniquely dangerous,
icy patch
doubly
then
sidewalk
so. Yet both
are common conditions.
majority
provided
example
unguarded
thirty
also
of “an
foot
deep pit
parking
in the middle of a
lot” as an
and obvious hazard
dangerous
unreasonably
“special aspect”
because it bore
imposing
unreasonably high
Lugo,
“an
risk of severe harm.”
464 Mich at
only
Lugo’s “effectively
518. The instant case relates
unavoidable”
because,
club, plaintiff
illustration
in order to enter the health
had to
patch
adjacent
cross
snow and ice
visible
on the sidewalk
facility.
entrance to the
*30
V LANCTOE
HOFFNER
Dissenting
Cavanagh,
J.
considerable
there has been
Lugo,
years
In the
since
effectively
a condition
make
about what would
debate
“effec-
interpreted
have
unavoidable,
jurists
and some
“effec-
synonymous with
being
as
unavoidable”
tively
231,
Rubin,
App
Mich
v
Joyce
See
trapped.”
tively
Oil
(2002);
v Blue Water
Robertson
242;
Today,
majority
un-
“effectively
by holding
approach
statement
must have
injured person
means that
avoidable”
no
circumstances with
by extenuating
“compelled
been
risk.” Ante
unknown
previously
but to traverse
choice
means
words, “effectively unavoidable”
at 473. In other
have no
the individual must
unavoidable:
absolutely
Thus,
there is
danger.
but
to hazard
alternative
possessor’s
essentially nothing
left
exceptions
clear ice and snow or
duty to
historical
it will be incred-
doctrine because
open-and-obvious
able to show that
will be
ibly
injured person
rare that an
an open
to encounter
“absolutely compelled”
were
they
repug-
to be
today’s holding
I find
danger.
of this Court and
jurisprudence
traditional
nant to the
Michigan’s
citizens
visitors.
disservice
grave
AN ILLOGICAL
THE MAJORITY OPINION CREATES
II.
STANDARD
AND UNWORKABLE
to settle
attempting
to be
majority
seems
While
un-
meaning
“effectively
about
the confusion
merely continues
avoidable,” the new definition
Lugo, (“Accordingly, important Mich at 523-524 it is courts deciding summary disposition by premises possessors ‘open motions objective and obvious’ cases to focus on the nature of the condition of the issue, subjective degree at not on the of care used plaintiff.”). HOFFNER V LANCTOE Dissenting Cavanagh, J. majority’s In to the position, contrast Restate- far approach logical. ment more workable It requires premises possessor steps to take to address the hazard should antici- possessor when that individuals will be to harm from the pate exposed risk, its A despite patch icy obvious nature. blocking sidewalk entrance to a fitness club is If perfect example. premises possessor expects patrons enter business he or she holds public, premises possessor expect they should will confront the despite hazard its nature.
Indeed, the Restatement provides an example *32 person injured which a is after falling visibly a “slippery stairway” waxed provides sole access point person’s office and “[h]er alternative taking the risk was to her forgo employment.” Restatement, § 343A(1), 5, In p illustration 221. illustration, the premises possessor did not li- escape ability merely because the hazard and obvi- Thus, ous. the Restatement approach requires the premises possessor to steps take to address the hazard at a time when he or she can prevent harm —not after some unforeseen and unforeseeable extenuating circumstances arise. Unlike the defini- majority’s new “effectively unavoidable,” tion of the Restatement ap- proach prospective requiring is the premises pos- — to reasonably anticipate probable sessor harms —not retrospective and after the fact. arising test,
Unlike the special-aspects the Restatement ap- proach serves well the citizens of who Michigan live a is, tutors, climate that as the majority “prone to winter.” Ante at 454. It precisely Michigan because experiences wintry conditions that premises possessors a duty have to take reasonable within a measures 492 MICH450 Opinion by Dissenting Cavanagh, J. hazards of ice and snow. reasonable time to address the make no sense in a climate that Indeed, such a rule would premises possessor winter. The experience does not —not daily about his or her business person go who must remedy in the during position the winter —is best Nezworski, on the premises. hazardous conditions Mich at 56.8
III. THE MAJORITY FAILS TO EXPLAIN ADEQUATELY ITS NEW STANDARD iterations, majority Through smattering ex- “compelled by instructs that the invitee must be tenuating circumstances with no choice but to traverse risk,” 473, previously “inescapably unknown ante at circumstances,” to confront under the “un- required 456, ante at or com- avoidably compelled,” “required hazard,” 469, confront a ante at pelled dangerous risk,” “forced to confront the ante at but fails to about what of circumstances provide guidance types majority fails to state Specifically, would suffice. extenuating whether these circumstances must arise externally independent to and invitee or whether extenuating particular circumstances of the indi- Further, majority opinion vidual suffice. offers no if an guidance about whether matters invitee entering exiting property. or a fire in a build-
Presumably, rampant gunman *33 extenuating would constitute circumstances suffi- ing fleeing occupants cient to force the to hazard a known case, In they exiting or obvious risk. that because are 8 See, Restatement, 343A(2), also, g, p (noting § “the comment that visitor, open fact that have been held and that he has been them, considered, always offering invited to use a factor to be as some place prepared for his assurance to the invitee has been safe”). reception, and that reasonable care has been used to make it Hoffner v Lanctoe Dissenting Opinion by Cavanagh, J. the building, they would be trapped by a patch of ice blocking I noted, exit.9 As however, it makes no sense to say that the premises possessor’s duty arises when the shots ring out or the building bursts into flames, I and do not see how a premises possessor could
ever anticipate such extenuating circumstances. While the majority opinion reiterates that arising “issues application of the obvious doctrine are to be decided using an objective .,” standard .. ante at 478 n this statement provide fails to guidance on the extenuating circumstances that may be subjectively particular an individual, yet would objectively compel person reasonable under the same circumstances to confront an obvious hazard. For example, consider the situation of person suffering a severe medical emergency who is confronted icy with an patch blocking the sole entrance to the hospital emergency room or an individual who must suddenly enter or exit a building to come to the aid of a family member suffering a medical emergency. What about a proba- tioner who must hazard icy patch blocking sole entrance to a drug-testing center in order to avoid violating his or probation? her In that case the proba- tioner must weigh the risk of crossing against the risk of violating probation and going jail. In each of these examples, the extenuating circumstance specific the individual —and therefore subjective yet a reason- — able person in that same situation would feel compelled to traverse the known or obvious hazard. 9 Although majority’s at least one iteration of the new rule would also require “previously seem to the risk be unknown.” Ante at 473. actually
Whether the risk was known or should have been known because obvious, it was majority opinion makes it clear that effective unavoidability injured person means that the had no choice but to hazard If hazard, risk. one has no why choice but to cross the I cannot see previously matters whether he or she knew of the risk or not. *34 Mich 450 Dissenting Opinion Cavanagh, J. objective I could endless of provide examples
While that would circumstances subjective extenuating avoiding to between or a braving force a choose person hazard, majority’s new definition of my point is that the matter only the “effectively unavoidable” confuses our law further from the Restatement pushes more from the precedent. It also shifts the focus and our own the nature to objective of the hazardous condition deciding choice an invitee must make when subjective hazard. and practitio- to cross or not cross the Courts in the struggle thorny questions these ners will with if today’s of none of arise we opinion, wake which would to return to the Restatement approach. were assertion, I do not a Contrary majority’s “posit the whereby owners would become virtual regime to those enter their Ante at 480. property.” insurers who true if only This statement would one assumes that every premises-liability jury, in case reaches a the invi- jury injured decides in favor of the automatically Rather, system tee. I have and a jury confidence our ability rationally decide a under the law.10 jury’s case 10Despite professions law, only “predictabil its of adherence to the the ity” majority certainty summary the to the law is the of seeks to add pointed disposition open-and-obvious for As I have defendants cases. out, premises possessor predicting possible chance a has little extenuating might circumstances that arise and force an individual to crossing a choose between risks of hazard versus risks However, predict crossing. premises possessor can with relative ease proceed that invitees will to encounter even and obvious hazard blocking only when it is available entrance to the invitor’s business. Further, position require espoused I a land- have not that would keep perfect property owner to his her condition at all times all people. perfection See ante at n Reasonableness—not 56. —is premises possessor’s And while I standard which is measured. Canterbury majority’s Archbishop appreciate introduction John fork, infamous a Morton’s Fork is a choice between Morton’s medieval asking equally unpleasant I do not think that two alternatives. possessor a little to make the cast about Morton’s Salt Dissenting HOFFNER V LANCTOE Opinion by Cavanagh, J. summary disposition, jury Were this case to survive very well might find that Lanctoes did not breach they the standard of care because took reasonable within a the icy measures reasonable time address *35 sidewalk, on condition the or that although there was a duty, breach of the breach proximate that the cause the plaintiff. of harm to I merely posit approach is consistent with the pre-Lugo jurispru dence of this Court and would a premises allow possess- or’s ultimate in a case as such this to be decided by a of jury Michigan’s citizens.
IV APPLICATION the Under Restatement approach and this Court’s historical jurisprudence, I would hold that the of Court Appeals did not err when affirmed the trial court’s ruling summary disposition was not appropriate regard to defendants Richard and Lori Lanctoe. Fitness Xpress awas health club held to the general public, and plaintiff was invited to make of the use facility. The Lanctoes had a clear duty to the ice and snow hazard front the only of facility, entrance to the and plaintiff had the reciprocal right to expect that reasonable care would taken make only to safe the approach available to wishing invitees to make use of facility. Despite nature hazard and the plaintiff risk, fact that knew of the approach reasonably qualifies equally unpleasant to a business safe as an potential liability injuries. being negative alternative to for than Rather alternative, premises possessor’s duty beneficial, protective ais imposed possibility and, hence, measure injuring to lessen the of invitees imposition liability. to avoid the 11 Deposition testimony indicates T12 suffered fractured required persistent surgery, damage, long-term vertebra that nerve pain. MICH Opinion by Dissenting Hathaway, J. that all customers anticipated have
Lanctoes should to the approach the sole facility through entering the risk injury. door be at front would V CONCLUSION illogical Today’s majority opinion creates to the court- that will bar unworkable rule serve invitees. Rather than Michigan’s injured house doors law, creates a host clarifying majority opinion create as that will confusion questions unanswered find attempt the answers. practitioners courts and Further, very reducing invitor’s circum- involving extenuating rarest of situations stances, reduces the beneficial majority opinion also owners take rea- Michigan’s business incentives ice haz- protect against and snow sonable measures I return Court’s property. ards their would I Accordingly, jurisprudence to that the Restatement. *36 respectfully dissent.
Marilyn Cavanagh, Kelly, J., with J. concurred in HATHAWAY, join J. I Justice CAVANAGH (dissenting). the conclu- majority’s his well-articulated criticisms of and Lori Lanctoe owed no to sion Richard fall on a natural involving in this case majority ice and the snow.1 While accumulation thoroughly that I not discuss the bemoans the fact do doctrine, agree I “special aspects” of its past versions and repeat cogent with and not Justice CAVANAGH’S will this ever-evolving with to insightful regard criticisms my I to separately express and doctrine. write elusive opinion “plaintiff” in this are Charlotte Hoffner References insurer, Michigan, Blue Blue Shield of which not to her medical Cross plaintiff. party intervened as a HOFFNERV LANCTOE Dissenting by J. Hathaway, consternation at how far this latest version of the strays doctrine from binding precedent state. In version, this latest the majority holds that “special aspects” exception to the only doctrine permits recovery in circumstances that present uniquely high likelihood of major- harm. The ity further holds that because plaintiff was not in a “trapped” building or “compelled extenuating circumstances no with choice but a previ- to traverse risk,” ously unknown not unavoidable or even so. I “effectively” disagree majority because the decision fails to follow binding precedent, also disregards and obvious doctrine as set Torts, 2d, forth in 2 Restatement 343A, §§ 343 and pp 215-222. Moreover, decision diminishes the role of juries in of judicial favor fact-finding, direct contra- specific vention of the of Michigan mandate Consti- tution. foremost,
First and majority as the acknowledges, Quinlivan Co, v Great Atlantic & Tea Inc2 Pacific binding remains precedent Quinlivan this state.3 rejected the notion that Michigan’s geo- northern graphic location somehow relieves a premises owner of duties to an owed invitee. In doing so, this Court looked common law of state of guidance. Alaska for Quinlivan quoted Alaska’s approach approval: with metamorphize
“Alaska’s climatic do not conditions all arising risks from and ice snow into conditions reasonable persuaded risks for the business invitee. Nor are we appellee policy argument Carr’s in Alaska it would result private-commercial in unreasonable costs to the possessor require possessor of land to clear ice *37 2 Co, Inc, 244; Quinlivan v Great Atlantic & Tea 395 Mich 235 Pacific (1975). 732 NW2d 3 See ante at 463-464. 450 492 Mich by J. Dissenting Hathaway,
snow, remedy amount conditions which or otherwise to its business invitees. risks of harm unreasonable many prevail for and ice conditions mere fact that snow is not in throughout locations Alaska various months of the for the insulation sufficient rationale of itself Nor liability to his business invitee. possessor of land from negate possibility that the the do such climatic conditions anticipated possessor should have harm the business knowledge the despite personal invitee the latter’s general dangerous or obvious- snow and ice conditions the ness of such conditions. part acts will reasonable care the
“What constitute particular vari possessor depend of land will on the the represent today does not ables of each case. Our decision duty requirement possessor’s adoption of flat attempt keep his free ice and requires that he land circumstances, Dependent care on snow. on the reasonable possessor’s part rea could be demonstrated other area, sanding application acts such as the sonable salt.”[4] Quinlivan Moreover, acknowledged rigorous du- Quinlivan that a premises ties owed an invitee. held him or her protect to an invitee to owner owes ice natural accumulations of from the hazards of snow. The Court held: appropriately
In has con- view the Alaska Court our legal duty owed the invitor to invitee. As ceived rooted in that Court found the basis its decision law, our pre-existing find that the basis for Alaska we grounded Montgomery [v as decision is in cases such Torma (1953)], Co, 468; NW2d 149 which Ward & rigorous duty To the recognized have owed an invitee. authority indicated that the pre-existing extent case law applied in an invitor-invitee natural accumulation rule adequately context, authority is reasons overruled. For Court, reject prominently cited by the Alaska we stated Center, Quinlivan, quoting Kremer v Carr’s Food 259-260, 395 Mich at Inc, 1969). (Alas, P2d *38 Hoffner v Lanctoe Dissenting Opinion J. Hathaway, notion that and ice snow hazards are obvious to all and may give liability. not rise to While the invitor is therefore invitee, safety not an absolute insurer the the the invitor duty has a to exercise reasonable care to diminish the general hazards ice and snow The accumulation. de scription duty appearing of the owed the Kestatement helpful exposition duty a described in Torma. As duty pertains accumulations, such to ice and snow it will require that reasonable measures be taken within a rea sonable time after an accumulation of ice and snow to invitee.[5] injury diminish the hazard of Thus, Quinlivan rejected soundly previously held notion that ice and snow hazards are obvious to all and therefore give rise liability. While the Court acknowledged a premises owner is not an absolute safety insurer of the invitee, of an recognized the Court that a duty owner has to exercise reasonable care to diminish the hazards of ice snow accumu- In lation. order to fulfill that duty, owner measures, must take reasonable within a reasonable time after an snow, accumulation of ice and to diminish the hazard injury Quinlivan to invitees. As clearly opined, question is one of reasonableness. The premises owner has duty to take reasonable steps diminish the snow, hazard of ice and and invitees have duty to take reasonable actions for their safety. own Today’s decision fails to apply analysis. this While the Quinlivan majority cites as controlling precedent, applies analysis that ignores these If principles. majority Quinlivan, intends to overrule it should do so in a forthright manner rather than claim that it is merely “clarifying” the law.
Moreover, to the extent the open and obvious plays any doctrine role in the discussion of the Lane- case, §§ toes’ 343A of the Second 5 Quinlivan, added). (emphasis at 260-261 492 MICH Dissenting J. Hathaway, Michigan’s open form basis for of Torts Restatement I no caselaw, and reason see in those sections. set forth principles abandon so-called “no- exceptions Restatement contains doctrine creates. duty” rule that fo- majority exceptions, than address these Rather *39 However, as Justice “special aspects.” cuses on CAVANAGH observed, excep- the Restatement contains astutely has rule, cannot be exceptions and “these no-duty tions analysis.”6 conveniently by ‘special aspects’ summarized Instead, as forth in the Restatement exceptions set Michigan’s as of caselaw. part need to be maintained provide: of the Restatement The relevant sections Dangerous § Known to or Discoverable 343. Conditions by Possessor subject physical possessor land is
A if, caused his a condition on land harm invitees if, he but
(a) by the care would knows or exercise reasonable condition, that it and should realize involves discover invitees, harm to such an unreasonable risk of (b) expect they will not discover or realize should protect against it, danger, or will fail to themselves (c) protect fails to them exercise reasonable care against danger. Dangers
§
A.
or Obvious
343 Known
(1)
possessor
land
liable to his invitees for
A
is not
by any activity physical harm
to them
condition
caused
them,
known or
on the land
obvious
whose
Inc,
337;
Enterprises,
Mann v Shusteric
(2) determining In possessor whether the should antici pate harm from a danger, known or obvious the fact that the invitee is entitled public land, to make use of or of the public utility, facilities of a importance is a factor of indi cating that the harm anticipated.[7] should be While there is no absolute duty to warn invitees of known or dangers, important exceptions emerge from the Restatement that limit application of this general rule. The primary exception is that a premises owner is not liable unless he or she “knows or exercise reasonable care” would discover or realize that invitees “will to protect themselves fail against” the danger or “unless the possessor should anticipate the harm despite such knowledge or obviousness 8 Thus, .” under the Restatement, the premises owner retains a to protect invitees and may still be held liable when the harm could be reasonably antici pated despite the fact that the danger is open and obvious. exception This was acknowledged in Riddle v *40 McLouth Steel Products Corp: Moreover, duty the “no to warn of danger” rule is a defensive doctrine duty that attacks the plaintiff element that a prima must establish in a facie negligence negligence case. A may only action be main- legal
tained if
duty
requires
exists which
the defendant to
particular
conform to a
standard of conduct in order to
protect
against
others
unreasonable risks of harm. If the
invitee,
is a
premises
business
the
owner has a
duty
protect
to exercise due care to
the invitee from
dangerous
However,
conditions.
dangers
where the
are
known to the invitee or are so obvious that the invitee
7
Torts, 2d,
2
343A,
215-216,
§§
Restatement
pp
343
(emphasis
omitted).
altered).
Id. at
pp 215,
(emphasis
might reasonably be to discover he duty protect the invitee unless owes no to or warn knowledge anticipate despite the harm it on should of behalf the invitee. established, legal duty the reason- Once a is defendant’s that is defendant’s under standard ableness of the conduct jury. jury decide generally question for the must duty legal defendant breached the owed whether the plaintiff, proximate was the that the defendant’s breach thus, injuries, plaintiffs that the defen- cause of the negligent. dant is
If,
pre
example,
dangerous
the
conditions on the
latent,
obliged
owner
to
premises
mises
hidden or
the
is
are
to
dangers.
Defendant’s failure
warn the invitee
may
circumstances
indicate a breach of
warn under these
legal duty
plaintiff.
the conditions are known or
owed
If
invitee,
premises
may
owner
obvious to the
nonetheless
required
protect
exercise
care to
the invitee
reasonable
danger. What
reasonable care under
constitutes
from
must be
from the facts of the
circumstances
determined
duty
jury
that the
exercise
case. While the
conclude
danger
requires
due
owner to warn of a
care
condition,
is no
to warn
ous
there
absolute
invitees
s.[9]
known or obvious
Additionally,
applying
exception,
important
language
from the
the Restate
principle emerges
clearly
ment. The
that a
provides
Restatement
heightened duty
anticipate possible
owner
owes
harm to
de
provides
“[i]n
invitees. Section 343A
anticipate
should
termining
possessor
whether
that the
danger,
harm from a known
fact
invitee is
land...
public
entitled make use
he
indicating harm should
importance
factor of
10Thus,
en-
when a
invitee
anticipated.”
person
85, 95-97;
Corp,
Riddle v
Prod
McLouth Steel
Turning application case, of the law to this there question is no that the majority recognizes the dangers presented by ice and snow.11There is also no question that was a business invitee who was entitled premises by to use the virtue member- ship that she bought from Fitness Xpress. The fitness facility was for plaintiff to use and enjoy during winter months. Plaintiff fell on ice and snow in front of entrance Xpress. to Fitness Under the lease Fitness had Xpress signed Lanctoes, with the who owned property, were responsible Lanctoes circumstances, snow removal. Given these it would not jury unreasonable for a to find that the Lanctoes should have anticipated plaintiff would have failed recognition clearly majority’s This noted in the statement “[ujnfortunately, snow, ice, slippery the accumulation of and other regularly hazards surfaces traversed the citizens of this state mishaps injuries year.” results in each innumerable Ante at 454. *42 492 Mich
Dissenting by J. Hathaway, by from the hazard the ice protect presented herself public there no other method of and snow because to and from the business. Nor would it be ingress egress to find that did not jury unreasonable for hazard. perceive recognize Conversely, jury reasonably could also conclude that the Lanctoes took appropriate steps plain- to diminish hazard or that appropriate protect tiff did not take actions to her own safety. however, are importantly, questions
Most these fact for the trier of fact to decide and are not properly by summary decided the court on a motion for disposi- right by jury tion or on review.12The to trial appellate by Michigan our Constitution.13 right protected When exist, of fact those are questions questions properly jury.14Thus, decided this Court not errs holding law, that the case is to be decided as a matter of juries, decision diminishes role of in favor of judicial fact-finding, spe- direct contravention of the Michigan cific mandates of the Constitution. Finally, I share Justice CAVANAGH’S concern that today’s holding “repugnant juris- to the traditional prudence grave of this Court and a to Michi- disservice gan’s citizens and visitors.”15 I dissent. Accordingly,
Marilyn Kelly,
J.,
J.
Hathaway,
concurred with
Estate,
146, 148;
(1904);
See Nowland Rice’s
138 Mich