Mann v. Shusteric Enterprises, Inc

ENTERPRISES, MANN v SHUSTERIC INC (Calendar 8). Argued Docket 120651. October No. No. Decided 30, 2004. June Roger brought Wayne Mann action in an the Circuit Court Inc., Enterprises, doing Speedboat Shusteric as business Bar & Grill, licensee, liquor Badger Company Mutual Insurance for damages injuries by plaintiff related to sustained the when he icy slipped parking and fell in the snow-covered of the lot bar consuming beverages court, after alcoholic in the bar. The circuit J., Finch, plaintiffs Sharon Tevis denied the motion additur for jury plaintiff damages a new trial after the had the awarded fifty percent comparative negligence by reduced on the basis the plaintiff. Appeals, EJ., The Court of and White Kelly, Wilder, JJ., unpublished opinion curiam, per reversed the circuit plaintiffs denial court’s motion additur or a new trial. On rehearing, Court, panel unpublished opinion the same of the in an curiam, (Docket per the affirmed decision the trial court No. 210920). liquor appealed, arguing The defendant licensee that a premises liability directly grоunded consump- that is claim in the subject remedy provision tion of alcohol is the exclusive of the 436.1801(10). dramshop act, MCL opinion joined In an Justice Chief Justice by Markman, by Supreme and Justices Court Taylor Corrigan, Young,

held'. plaintiffs The remedy is not suit barred the exclusive provision of the act if his suit based on a claim that plaintiffs injuries unlawfully did not arise from the defendant selling, giving, furnishing liquor knowledge plaintiffs 1. defendant’s of the intoxication is determining irrelevant in whether the defendant breached plaintiff against the ice and snow in the defendant’s parking plaintiff lot. The that the fact defendant knew that the was intoxicated affect does not the duties that the defendant owed plaintiff-invitee. plaintiff visibly to the The fact that the intoxicated diminish does not the standard of conduct reasonable judged. which actions are suit, premises liability 2. In a the fact-finder must consider v Shusteric Mann injured party. A premises, of the not the condition condition dangerous condition in the jury whether need decide or, so, if whether parking lot was defendant’s open and obvious aspects even the special that render there were person. reasonably prudent unreasonably dangerous to a condition premises obligations 19.03, pertaining of a to the JI 3. M Civ dangers, forth an open sets possessor and obvious to warn liability stating premises in that a law statement inaccurate danger open if and obvious invitee of an possessor must warn an the expect will not discover possessor that an invitee should the Lugo against Under v protect it. danger himself or will not (2001), premises possessor Inc, a Corp, Mich 512 464 Ameritech only danger open if and obvious protect an must an invitee unreasonably special aspects that make contains such dangerous. obligations premises 19.05, pertaining of a to the 4. M Civ JI arising of ice from the accumulation possessor diminish hazards to ignores snow, 19.05 incorrect instruction. Section sets forth an by requirement imposing an “unreasonably dangerous” Lugо’s irrespective possessor the duty premises of whether on a absolute making special aspects and ice creates accumulation of snow unreasonably dangerous. accumulation majority concurring, that the stated Justice Chief Corrigan, duty protect an invitee premises has no owner was correct that aspects special dangers unless open on and obvious from Ameritech, Lugo unreasonably dangerous. v render the condition difficult did not consider the more Mich She 464 512 precluded plaintiffs the questions, cause of action is whether Weitzman, Mich 157 dramshop Manuel v 386 act and whether pre- overruled, (1971), issues were not because those should be in the circuit court. sented concurring part joined by in Justice Kelly, Justice Cavanagh, majority dissenting part, he concurred with in stated that act, exclusivity provision MCL 436.2802(10), plaintiffs premises preclude the does not claim. Torts, 2d, Michigan Restatement of the bases of the On law, A an accurate instruction. M JI 19.03 is Civ generally required invitee from

possessor an exceptions dangers. to this rule and But there are and obvious conveniently special as- exceptions summarized cannot be excessively Lugo Amer- majority v analysis. relies pects The (2001), special aspects premise itech, that the Mich for the analysis. only analysis relevant method of case is the from that Mich 320 Although aspects special analysis is relevant consideration in sort, inquiry. cases of this it is not the relevant similarly M JICiv 19.05 is not in need of revision. Taken to a conclusion, today’s logical may imply any decision necessarily open of ice and accumulations snow Quinlivin dangers. The from v The Great & Atlantic rule Pacific Co,Inc, (1975), duty 395 Mich 244 Tea of reasonable care requires that reasonable measures be taken within a reasonable snow, time after accumulation of ice and is reflected in M JICiv thirty nearly years. majority, 19.05 and has been followedfor The qualifying jury Lugo in instruction standard with has uncertainty premises liability added law. cоncurring part, part dissenting Justice Weaver, agrees jury plaintiff, the vacation the verdict favor of the knowledge because on the facts this case the licensee’s regard intoxication is irrelevant with to whether the bar majority, by breached its common-law of care to extending aspects” Lugo Ameritech, rule from v (2001), involving cases Mich the accumulation of ice and snow, explanation Quinlivan without overrules the decision in v Co, Inc, (1975), The Great Atlantic & Tea 395 Mich 244 Pacific premises possessors held that which owe to invitees take reasonable measures within a time reasonable after an accumula- injury of ice and tion the hazard snow diminish of Now, aspects” invitees. unless there are to an accumula- creating harm,” premises of tion snow and ice a risk “severe of possessors owe no take reasonable within measures a protect reasonable time to invitees from the and ice snow majority accumulations. The will decision crеate confusion in the premises liability explain why law because the does not it has determined that certain and ice snow accumulations no require longer premises possessor’s a reasonable attention within explain a reasonable time and does not how the fact-finder is to distinguish differing types between the of snow and ice accumula- Quinlivan explana- tions. should not be overruled without such tion. reversed; Appeals judgment jury vacated; Court of verdict and proceedings. case remanded for further Negligence - - - Liability Dramshop i. Liquor Premises Licensees Act. provision remedy dramshop

The exclusive of the does not act preclude premises liability against liquor a action a licensee for dangerous injury premises caused on condition the licensee’s invitee to an who was served alcohol the licensee where v Mann Shusteric the Court unlaw- something the defendant other than injuries from arose (MCL plaintiff. furnishing to the fully selling, giving, or alcohol 436.1801[10]). — Negligence Open — — Liability and Obvious Liquor Licensees Premises 2. Dangers. licensee, premises action against liquor whom Whether by the brought by was served alcohol an invitee who has been against a licensee, invitee has breached requires a deter- the licensee’s dangerous condition obvious, open and dangerous condition mination whether aspects special that render even an there are or whether reasonably pru- dangerous unreasonably to a obvious condition knowledge by invitee’s intoxication person; the licensee of the dent determination. to that irrelevant Fealk), Fealk, and James Martin N. (by EC. Martin N. Brittain), for the Brittain, D. (by EC. James D. Estes) Hollman, Lee C. Cheatham, (by EC. Estes & (John Jacobs, counsel), Jacobs, E EC., by John E defendant. for the

Amicus Curiae: Grierson, A. Chas-

Chasnis, (by John & EC. Dogger Ltd., Quick- Stores, Quick-Sav Food nis), Inc. Management, Tracker case to appeal leave to this granted J. We MARKMAN, injury after who suffers plaintiff decide whether of a bar where falling parking in the lot slipping notwith- visibly may, intoxicated plaintiff has become act, dramshop standing exclusivity provision a common-law 436.1801(10),1 pursue MCL that bar. Court of action liability cause $226,000 in favor of verdict jury’s Appeals affirmed pre- act did not holding that plaintiff, action, and liability cause clude plaintiffs 14, 423.22, April Formerly, 1998. MCL before 470 Mich 320 op the Court that the bar’s knowledge intoxication was relevant regarding whether the bar breached protect plaintiff against the ice and parking snow its lot. Although agree we in part with the Appeals Court of and hold that the dramshop act does not preclude such action, cause of reject we the holding by the Court of Appeals that the knowledge bar’s of plaintiffs intoxica- any tion has relevance. v Lugo Inc, Ameritech Corp, Mich 520; 629 NW2d 384 Accordingly, we reverse the decision of the Court of Appeals, vacate the jury verdict, and remand this case for further proceed- ings consistent with opinion. this

I. BACKGROUND 6,1996, On March blizzard, during plaintiff entered defendant’s bar and consumеd nine alcoholic drinks in approximately three leaving bar, hours. After plain- tiff, who was visibly intoxicated and had a blood alcohol content of 0.25 percent,2 injuries sustained when he slipped and fell on ice and snow that had accumulated in defendant’s parking lot during blizzard. Accord- ingly, plaintiff filed a liability cause of action against defendant, claiming that defendant breached its duty of care failing to warn plaintiff of the ice and snow in defendant’s parking lot and failing remove such ice and snow within a reasonable time after it had accumulated in defendant’s parking lot.

Over objection defense to an instruction on M Civ JI 19.03, the trial court delivered both “Duty Of Land, Possessor Of Premises, Or Place Of Business To expert given plaintiffs ingestion Plaintiffs testified that of so much alcohol, highly improbable plaintiff it was degree could “mask” the expert apparently of his intoxication. The plaintiff concluded that “visibly intoxicated.” Mann v Shusteric Opinion of the Court Of “Duty Of Possessor Invitee” instruction A Premises, Place Of Business To Business Land, Or Ice And Accumulation Of Regarding Natural Invitee plaintiff fifty percent finding instruction.4 While Snow” $226,000 returned a negligent, jury comparatively believed plaintiff favor. Because verdict damages noneconomic failure to award jury’s evidence, he filed a of the against great weight trial, a which motion the for additur or for new motion trial court denied. raising the issues of instruc- appealed,

Defendant damages. error and error in the calculation of tional that the trial court contending Plaintiff cross-appealed, for additur or for a new denying erred in his motion reversed opinion, Appeals trial. its first the Court denying plaintiffs court motion the decision of the trial states, part: M JI 19.03 in relevant Civ dangers possessor A must ‍​‌​‌​‌‌​​‌​​‌‌​‌​‌‌‌‌‌​​‌‌​‌​‌​‌​​‌‌‌‌​​​​​​‌‌‌​‍warn the invitee of that are known possessor unless those that should have been known to the However, dangers open possessor must warn an and obvious. danger possessor if the should invitee of an expect or will not that an invitee will not discover protect [himself] it. Note on Use paragraph involving a claim of failure This is to be used cases

to warn. 4 M JI states: Civ 19.05 [defendant] to take reasonable measures It was the period accumulation of snow a reasonable of time after the

within injury [plaintiff]. and ice diminish the hazard of Note on Use applicable instead of the This should be used where instruction Land, Premises, Duty general M of Possessor of

more Civ JI 19.03 apply public It does not or Place of Business to Invitee. sidewalks. 470 Mich 320 Court However, additur or for new trial.5 on defendant’s motion for rehearing, Appeals Court affirmed the decision of the trial court in all respects.6

Defendant sought appeal Court, leave to in this arguing that a premises liability cause of action that is alleged grounded to be in the consumption of alcohol is action in guise and, thus, another because of the exclusivity provision dramshop act, plain- tiff precluded should be from pursuing any other cause action, including рremises liability action.

II. STANDARD OF REVIEW Statutory interpretation is an issue of law that is reviewed de & novo. G C Timmis Co v Guardian Alarm Co, 416, 419; Mich 662 710 NW2d

III. ANALYSIS argues Defendant that plaintiffs premises liability cause of action precluded by the exclusivity provision act, of the dramshop 436.1801(10), MCL which pro- vides:

This provides [MCL section 436.1801] the exclusive remedy money damages against arising for a licensee out of selling, giving, furnishing or liquor.[7] of alcoholic (Docket Unpublished curiam, opinion per May 11, issued No. 210920). 6 Unpublished (Docket opinion per curiam, issued November 201920). No. dramshop remedy injuries “[T]he arising act affords the exclusive sale, giving away, furnishing out of an intoxicants.” or unlawful Weitzman, 157, 164-165; Manuel v (1971), 386 Mich 191 NW2d 474 Schifano, (1970) De Villez v quoting 72, 77; App 178 NW2d 147 (emphasis original). An “unlawful” sale is a sale to either a minor or a 436.1801(3). visibly person. intoxicated MCL ENTERPRISES, INC MANN V SHUSTERIC op the Court that “[t]he Moreover, provides the act also because a cause shall not have person intoxicated alleged visibly section..MCL to this pursuant of action as the plaintiff, 436.1801(9), argues defendant action has no cаuse of visibly person, intoxicated alleged act. dramshop all under the at action, that, if his cause Plaintiff does not contest “selling, defendant’s unlawful fact, did arise from alcohol, he would be barred furnishing” giving, dramshop act. cause of action bringing from this the act does not However, instead asserts that plaintiff visibly action filed preclude that unlaw- person intoxicated fully person. served alcohol to Here, action arises agree We fell in slipped after he injuries from he sustained is, That parking lot. icy defendant’s snow-covered that defendant on the claim plaintiffs action is based him from a sufficiently as an invitee did not defen- the premises, specifically condition on dangerous parking Accordingly, and snow-covered lot. icy dant’s “selling, from the unlawful arising this is not an action 436.1801(3). alcohol. MCL giving, furnishing” Rather, liability action. This ordinary premises it is an that, considering plaintiff evident had is made defendant, any alcohol at all but still been served not be injuries, plaintiff the same would sustained action for asserting from precluded injuries on the basis of his invitee status.8 arising “selling, an from the unlawful Because this is not action alcohol, recognizes furnishing” giving, because common law or negligence, Lugo, supra alleged at defendant’s a cause of action for plaintiffs 516-517, holding dramshop preclude act does not our that the by this Court in of action is consistent with the test set forth cause 470 Mich Court the dramshop

Because we hold that act does not action, preclude plaintiffs premises liability cause of we relevancy next consider the intoxication knowledge defendant’s of such intoxication. Gen erally, a premises possessor duty owes of care to an invitee to exercise care protect reasonable the invitee from harm by danger an unreasonable risk of caused Ford, Inc, ous condition on the land. Bertrand v Alan 606, 609; 449 Mich NW2d 185 This generally does not encompass protect “open invitee from dangers. Lugo, obvious” suрra However, at 516. if there are “special aspects” of a condition that make “open even an and obvious” danger “unreasonably dangerous,” the premises possessor a duty maintains to undertake reasonable precautions 7.9 invitees danger. from such Id. at 51 To Weitzman, 157; (1971), v Manuel 386 Mich 191 NW2d 474 as described Club, 178, 187; Millross v Plum Hollow 429 Mich 413 NW2d 17 Golf (1987) : “(1) Does the claim ‘the tavern owner’ arise out of an unlawful sale, giving away, so, furnishing dramshop If of intoxicants? act is remedy. the exclusive “(2) selling, giving away, If the claim arises out of conduct other than intoxicants, furnishing recognize does the common law a cause of so, negligent action for the If conduct? then the act neither abrogates not, nor controls the common-law If action. there is no independent common-law claim.” 262, 276-277; Corp, See PKM also Jackson v 422 NW2d 657 (1988) Millross). (applying the Manuel test as described in 9 By exaggerated language—“the majority using [is] his this case as a Michigan premises liability 335; law,"post “[t]oday’s vehicle to rewrite at simply majority’s systematic decision is the latest installment in the dismantling approach,” of the Restatement of Torts id. at “the majority. precedent, id.; .. overrules decades of well-reasoned “the majority repudiates approach,” 342,—Justice post the Restatement at Cavanagh again merely raising initially issues he raised his concur ring opinion Lugo, process giving in the while no effect to the y 329 Mann Shusteric Opinion of the Court obvious,” “open condition is whether a determine render even aspects” there are or whether “unreasonably dan condition “open and obvious” an objective an stan must utilize the fact-finder gerous,” Id. standard. dard, reasonably prudent person i.e., a action, fact-finder is, in a premises That premises,” not the “condition of must consider A visibly 518 n 2.10 Id. at plaintiff. condition held to the same standard person is intoxicated a sober person. conduct as reasonable it erred when Appeals the Court of Accordingly, stated: implicatеd of alcohol was as it service

Defendant’s knowledge plaintiffs condition as related to defendant’s failing to whether defendant’s conduct relevant failing plaintiff warn inspect parking clear the lot and 30, 2001, slip op 4.] at [November was reasonable. was intoxi- Rather, knowledge plaintiff defendant’s legal not affect the duties owes cated does Lugo, supra at “special aspects” in that decision. doctrine articulated wishes, course, reargue Lugo long is, as he but He as 527. entitled represents nothing case more that the instant it should he understood ordinary application principles opinion. set forth in that than an 10 alleged dangerous making whether an a determination about obvious,” dependent “open not such a determination is condition is particular plaintiff, but rather on charac on the of a characteristics Bertrand, 617; person. supra reasonably at prudent Radtke teristics aof (1993), 390-391; quoting 368, Everett, NW2d v Torts, c, p 2d, v § comment Sidorоwicz Chicken Restatement J., (2003) (Tayloh, Shack, By imposing concurring). Inc, Mich possessor, merely obligation upon a or other homeowner circumstances, reasonably ordinary safe under make her his or circumstance, every Cavanagh in his Justice also under conceivable but concurrence/dissent, 339-340, impose substantially post in at would persons. legal upon such creased burden 470 Mich 320 Opinion of the Court is, although plaintiff That defendant served ‍​‌​‌​‌‌​​‌​​‌‌​‌​‌‌‌‌‌​​‌‌​‌​‌​‌​​‌‌‌‌​​​​​​‌‌‌​‍alcohol and intoxicated, apparently plaintiff aware was plaintiff any heightened defendant does not owe duty Rather, in determining care. whether defendant duty, breached only the fact-finder must decide prudent whether a reasonably person would have slipped fallen on the ice and snow in defendant’s lot, parking reasonably or whether that prudent person should have dangerous been warned defendant of the condition.

If extent of intoxication were in considered determining defendant’s of carе to plaintiff, such consideration, in judgment, our would circumvent dramshop prohibition against act’s permitting visibly a intoxicated person collecting monetary from damages arising from defendant’s “selling, giving, unlawful furnishing” of alcohol such MCL 436.1801(9X10). The dramshop protects act dramshop owners prohibiting visibly person a intoxicated from recovering damages that have arisen from the dram- shop unlawfully “selling, giving, furnishing” alcohol person. to such judgment, statutory our protec- tion would be nullified if owners, actions, held higher duty were to a of care because they unlawfully sold alcohol to visibly a intoxi- person. Accordingly, owner, cated a dramshop as with any owner, other property a duty has toward the reasonably invitee; prudent not, however, he does have heightened duty a in the case of the visibly intoxicated invitee. there Concomitantly, is no diminished standard of reasonable part conduct of a visibly intoxi- cated invitee comparison any other invitee. Defendant raises onе last argument concerning the jury instructions. “Note on of M Use” Civ JI 19.05 states that “this instruction [pertaining obliga- vMann Shusteric Opinion of the Court the hazards to dimmish premises possessor tions of be snow] ice and should from accumulation of arising general more M Civ instead applicable where used obligations [pertaining JI 19.03 By- dangers] ....” warn possessor argues of” defendant language, “instead virtue mutually exclusive and § § 19.03 and 19.05 argues § Defendant giving court erred the trial 19.03. in a situation—where single specific § 19.05 applies that in of ice and snow—and is an accumulation there in- have situation, the trial court should such Lugo, premises Under disagree. §on 19.05. We structed dangers invitee from “protect” has a possessor obvious,” or, although “open that are either make obvious,” aspects” that contain “open at “unreasonably dangers dangerous.” Lugo, supra duty as that term was “protect,” Because the to 516-517. general than either broader and more Lugo, used is duty to a “warn,” § to or the “diminish” 19.03, duty 19.05, we that snow, § iсe and believe by hazard caused duty both the duty encompasses to “protect” in these instructions. and “diminish” “warn” the “Note on Use” of Accordingly, to the extent that mutually § § 19.05 19.03 and implies § 19.05 under exclusive, implication an is unwarranted such ground court not err on this and the trial did Lugo, delivering both instructions.

However, an § 19.03 is inaccurate we believe that possessor instruction. must Lugo, a premises Under danger “open an an and obvious” against invitee protect danger “special aspects” if such contains at 517. Lugo, “unreasonably dangerous.” supra make regard are not defined with aspects” Because an expect that possessor should premises whether danger” “pro- or will not will “discover the invitee an it,” § rather whether against but 19.03, tect Mich 320 Opinion of the Court “open danger otherwise obvious” is “effectively an “impose[s] unreasonably high unavoidable” risk invitee, harm” Lugo, severe to an supra at we § believe that 19.03 sets forth an inaccurate statement of premises liability law.11 §

We further believe that 19.05 sets forth an inaccu- rate instruction. Under Lugo, possessor must an invitee an “open and obvious” danger only if such “special aspects” contains that make it “unreasonably dangerous.” Lugo, supra at Thus, in 517. the context of an accumulation snow ice, Lugo that, means when accumulation “open obvious,” a premises possessor must “take reasonable period measures within reasonable of time after the accumulation of snow and ice to diminish the hazard injury [plaintiff]” only if there is some “special aspect” that makes such accumulation “unrea- sonably dangerous.”12 Section ignores Lugo's 19.05 “un- reasonably dangerous” requirement by imposing an absolute possessor irrespective whether the accumulation of snow and ice creates 11Moreover, invitee,” 19.03, § “an used in as must be understood to refer “reasonably prudent” Lugo, to a supra Accordingly, invitee. at 523. a trial explain objective court must term this refers to an invitee. seeking Because we are here M Lugo, to conform Civ JI 19.05 with Lugo brought because clarity has some reasonable measure of to a previously disarray, law that respectfully disagree had been we Justice CAVANAGH’S that, quali assertion in his “[i]n concurrence/dissent fying standard, Lugo M JI majority Civ 19.05 with its has added uncertainty Michigan premises Rather, law.”Post at 343. precisely opposite believes that it has moved in direction seeking to coordinate and Michigan render the consistent case law allowing, rather years, multiple, than as has too often been true in recent conflicting expressions coexist, essentially allowing litigants of the law to among opinions patron to choose inconsistent in the manner that a at a might among Chinese restaurant choose dinner items from Column A or See, e.g., Column B. Comm, 143; v Nawrocki Macomb Co Rd Mich 615 NW2d 702 Mann v Shusteric Opinion of the Court accumulation “unrea- making “special aspects” duty an does Such absolute sonably dangerоus.”13 Lugo. exist under

W.CONCLUSION and hold Appeals in the Court of part with agree We does not preclude act the Co,Inc, 244, Quinlivan Tea Mich The Great Atlantic & v Pacific light (1975), in of this Court’s he understood must NW2d Concerning duty Lugo. the subsequent of care in Bertrand and decisions arising premises possessor from to an invitee other owes a homeowner or snow, in her ice Justice Weaver relies the accumulation Quinlivan possessors “premises on and asserts that concurrence/dissent ... a duty ‘reasonable measures within a to invitees to take owed snow to diminish the after an accumulation ice and reasonable time ” (citation omitted). injury Post at 344 hazard of to the invitee.’ that, aspects, any special majority unprepared to hold absent is hazard, a open and nature of obvious absent consideration duty premises possessor to an owes an absolute homeowner or other ice and the attendant the accumulation of invitee to diminish hazards snow. light Further, perрlexed in of her are how Justice Weaver, we only Lugo, concurring opinion supra in asserted that in at which she determining open apply in whether the and obvious standard should premises possessor is hable to invitee for

homeowner or other majority’s dangerous premises, would disavow condition on his now Quinlivan grounds supposed application Lugo on that not ‘rigorous duty’ obvious,” “the ice accumulations ... but are “snow and justified] from harm invitees unreasonable owed invitors imposition regarding invitors accumulations of of a uniform opinion Lugo, at with her we snow and ice.” Post 344. Consistent hard-pressed could now conclude that to understand how Justice Weaver premises possessor care to diminish a homeowner or other has snow, if of ice even such hazard a hazard the accumulation caused words, criticizes the Justice Weaver and obvious. other “openness majority Lugo fading and obviousness” of for to accord case, consideration, she instant criticizes a hazard whde exclusive according “openness of a hazard and obviousness” wholly positions in two cases are excessive consideration. Her these incompatible. 470 MICH Concurring Opinion by Corrigan, C.J. premises liability cause of action because plaintiffs arose from than injuries something other defendant unlawfully “selling, giving, or furnishing” alcohol to plaintiff.14 However, we a dramshop’s also hold that of an knowledge invitee’s intoxication is irrelevant in determining that dramshop whether has breached its invitee, of care toward such and that there is no diminished standard of conduct the part visibly on intoxicated invitee. Accordingly, judg- we reverse the ment the Appeals, verdict, Court of vacate the jury and remand this proceedings case further consistent opinion.15 with this J., JJ., Taylor

Corrigan, Young, C. concurred J. MARKMAN, with

CORRIGAN, C.J. I (concurring). majori concur with the ty’s reasoning decision to remand this case for proceedings. agree further I that a owner has no invitee from dangers on a unless aspects” rendеr the condition “unreasonably dangerous.” Lugo v Ameritech, 512, 517; NW2d not do consider the more difficult questions whether plaintiffs precluded by cause action is the 14However, contrary dissent, 335, post to the at we do not reach this “spirit” conclusion dramshop on basis of our assessment of the act, but language. rather of our basis assessment 15Although jury plaintiff fifty percent comparatively negli found gent, necessarily jury reasonably does follow that the found that a prudent person parking Instead, would not have fallen in defendant’s lot. by apportioning negligence plaintiff, jury conceivably some that, finding only although reasonably prudent person also would have fallen, person degree would not have sustained the same injuries visibly suffered intoxicated We remand this case proper legal in order enable the trial court to de review novo the jury light standards and instructions of the facts of this case. Mann v Shusteric Cavanagh, J. Weitzman, v Manuel act and whether

dramshop (1971), be over- Mich 191 NW2d 474 should presented were never arguments ruled those because dramshop act’s the circuit court. Defendant raised in a conference only exclusivity provision1 pretrial It waived jury explicitly instructions. connection exclusive that the act was issue Thus, proofs at trial although plaintiffs ap- remedy.2 dramshop act, the I do province invade the of peared to of the question not to consider that because need posture of the case. procedural in (concurring part dissenting J. and CAVANAGH, exclusivity the the agree majority I with part). act, 436.1801(10), does dramshop of the MCL provision claim. I also preclude plaintiffs premises liability not case, that, unique facts of this agree under the consid- regard to defen- eration of intoxication premises liability may in a action dant’s care must, I the act. circumvent the spirit however, only. in the result concur I that M JI 19.03 and majority,

Unlike the believe Civ Michigan instructions under law. 19.05 remain accurate Moreover, using I am troubled the this case lаw Michigan premises liability as a vehicle rewrite v Amer unwisely Lugo extend the rationale of Inc, Mich 384 464 629 NW2d Corp, itech scope application Until the today, precise See, analysis unclear. majority’s “special aspects” Mich e.g., Daykin Brousseau v Electric Corp, remedy money damages provides the “This section exclusive arising selling, giving, furnishing of licensee out of the 436.1801(10). liquor.” alcoholic MCL attorney has a lot stated “Mr. Brittain talked about how Defendant’s disputed bring he’s claim. We’ve never that.” entitled 470 Mich Cavanagh, J. (2003) (MARKMAN,J., dissenting). Unfortunately, today majority opinion ends debate.

Today’s simply decision is latest installment systematic majority’s dismantling the Restate- ment of approach. majority effectively Torts states approach Lugo, Restatement is dead because only Michigan. is the law in M Civ Lugo, revising 19.03, majority signals JI the death knell to the protections previously afforded the citizens this state and, practical matter, as a overrules decades of well- precedent. reasoned

I remain majority’s committed to the view that the singular approach wrong and inconsistent with Michigan’s jurisprudence.1 Because Lugo, is not aspects” analysis, only cases, I inquiry relevant fail to see wisdom M JI revising Civ 19.03 and 19.05 to reflect the majority’s current Lugo standard. remain committed Michigan law, to the view that under inquiries other relevant, if required, in open and obvious danger cases.

I. M JICIV 19.03 agree I with the a premises possessor is generally required not to protect invitee from open dangers. the approach This is by advanced Torts, 2d, 343A, § Restatement an approach which been key Michigan’s open “has to and obvious danger .. .” Lugo, supra (CAVANAGH, J., law. at 528 concur- Ford, ‍​‌​‌​‌‌​​‌​​‌‌​‌​‌‌‌‌‌​​‌‌​‌​‌​‌​​‌‌‌‌​​​​​​‌‌‌​‍see ring); also Bertrand v Inc, 606, Alan 449 Mich appreciate majority graciously granting permission me to espouse my allowing “reargue” view of the law and me to the ramifica Lugo’s approach. on tions overreliance errant ante See at 329 n 9. y Mann Shusteric by Cavanagh, J. v Delcor Homеs (1995); Perkoviq

609; 537 NW2d Pointe, 643 NW2d Ltd, Lake Shore Restatement, however, there As noted general rule, exceptions these to this exceptions as conveniently summarized cannot be analysis. pects” provide: Restatement sections

The applicable § to or discoverable Dangerous conditions known 343. by possessor. physical subject liability for land possessor

A if, by a on the land invitees condition harm caused to his if, he but

(a) care by the exercise of reasonable would knows or condition, should realize that involves discover invitees, and of harm to such an unreasonable risk (b) or realize the they will not discover expect should it, protect against themselves danger, or will fail (c) them reasonable care fails exercise 2d, 343, Torts, pp § danger. [2 Restatement added).] (emphasis 215-216 dangers.

§ or Known obvious 343A. (1) to his invitees for possessor A land is liable activity by any or physical them condition harm caused to them, land is known obvious whose possessor anticipate despite should the harm unless knowledge or obviousness. (2) determining possessor antici- whether the should danger, pate the fact that harm from known obvious land, or public is entitled to make use of invitee importance utility, public is a factor of facilities of a anticipated. at indicating [Id. should be the harm added).] 343A, p (emphasis § enlightening particularly § Comment f to 343A is in relevant part: states are, however, possessor land in which the

There cases anticipate dangerous condition will that the can and should 470 Mich Cavanagh, J. physical notwithstanding cause harm to invitee danger. possessor or known obvious such cases the is not duty of to relieved reasonable care which he owes protection. invitee for his duty may require This him to invitee, steps warn the or to protect take other reasonable to him, against the known or activity, obvious condition or if possessor to expect has reason the invitee will physical nevertheless harm. suffer expect Such reason harm to the from visitor known or dangers may arise, example, pos- obvious where the expect may sessor has reason to that the invitee’s attention distracted, be obvious, so that he will not discover what is forget discovered, or will what he has protect fail 2d, 1(f), § against p 343A comment [Id. it. himself added).] (emphasis It is this within context the proposed revisions to M Civ JI must be 19.03 examined. The instruction provides pertinent part: possessor [land/premises/a place A of business] has a [land/premises/place to maintain the business] in reasonably safe condition. possessor A ordinary has a to exercise care

protect an injury invitee from unreasonable risks possessor were known to the or that should have been ordinary known the exercise of care. *(A possessor dangers must warn the invitee that are

known that should have possessor been known dangers open However, those unless and obvious. possessor must warn an invitee danger possеssor expect should that an invitee will not if discover the or will [himself/herself] it.) [Emphasis added.] On the bases of the law, Restatement and Michigan believe M Civ JI 19.03 be an accurate instruction.

For example, Riddle v McLouth Steel Products Corp, (1992), NW2d this Court made clear that the open and obvious doctrine is not 339 Mann v Shusteric Opinion by Cavanagh, J. Riddle, Court noted this liability. bar to

an absolute the are known to invitee dangers the that “where reasonably be might so obvious the invitee are duty to them, an owes no invitor to discover expected invitee unless anticipate he should warn the protect of the knowledge of on behalf despite the harm added). As the Riddle, supra (emphasis at 96 invitee.” “un- § 343A’s noted, Supreme Court has Minnesota rule” general to the qualifier is a “crucial less” clause Barton, v 1, Sutherland NW2d of the Restatement. 1997).2 known the conditions are (Minn, Thus, “[i]f may invitee, the owner to the or obvious care to to exercise reasonable required nonetheless be Riddle, supra at dаnger.” invitee from the the 97. aspects” “special

It the becomes obvious deter- in may question condition be critical particular liability imposed upon should be mining whether major- cases. The obvious possessor analysis, ity “special aspects” concludes that under must the ‘condition of the “the fact-finder consider Ante at plaintiff.” not the condition premises,’ Although inquiry, may 329. this be a relevant “special by disposi- are no means aspects” condition’s “spe- on a Additionally, solely focusing tive. condition’s Michigan clause aspects” cial reads “unless” out liability law. (The (2001), 235, Dobbs, p § See also 1 Torts Restatement view complete acceptance expressly almost where it has been “has commanded (“In (5th ed, 1984), considered.”); Keeton, p § Prosser & Torts anticipate any occupier person case as a reasonable should where notwithstanding knowledge, his risk of harm the invitee unreasonable condition, something warning, nature of the morе or the obvious way precautions may required.”). be 470 Mich 320 by Cavanagh, J.

Rather, aspects” endeavor must made be within the by framework set forth the Restatement as by Thus, this adopted Michigan Court. under practice, inquiries other required making a liability deter- mination and a analysis court’s does simply not end with the condition’s “special aspects.” Stated differ- “The ently, an owner or occupier should be determined solely the condition of premises, or artificial, natural but occupier’s rather con- duct in relation is, to those conditions—that consider- ing circumstances, all of the due care exercised.” Littlejohn, Torts survey law], [1974 Annual of Michigan Wayne L R 677-678 M Civ JI 19.03 recognizes and, therefore, this point law remains an accurate instruction.

Consider the following hypothetical an example, elaboration of the facts presented Sidorowicz v Shack, Inc, Chicken 673 NW2d 106 (2003). During a remodeling, particular restaurant has a six-foot hole in floor. The restaurant owner decides it would be benefiсial remain open during remodel- ing. The conspicuously owner places signs large at the entrance and the throughout indicating restaurant the presence of the hole. The owner giant further places red flag in the center of the easily ‍​‌​‌​‌‌​​‌​​‌‌​‌​‌‌‌‌‌​​‌‌​‌​‌​‌​​‌‌‌‌​​​​​​‌‌‌​‍hole. Patrons can the by avoid hole traveling down one of two alternate A aisles. blind person enters the restaurant grab bite to eat. The owner knows that the invitee is blind. The wearing invitee is sunglasses, cane, carries a white sign has a reads, around neck that his “I am blind,” and orally even owner, states to the “I am blind cannot see.”

The hole is properly a dangerous considered condi- Further, tion on the land. the condition would arguably be considered open reasonably and obvious to a prudent v Shusteric Mann by Cavanagh, J. exist in this aspects” no Additionally,

person.3 easily could “average” person because the situation taking alternative an dangerous condition avoid the analysis ends majority’s approach, route. Under be owner can never and the restaurant point at this or for to warn the blind invitee failing held liable This person. this take other actions failing to knows with near absolute though owner is true even to protect the invitee will be unable certainty that prior deci- physical injury. suffer himself and will 19.03, Restatement, Court, M Civ JI sions from this held may the owner be suggest that and common sense despite this instance “obviousness” liable in to have appears This of law dangerous point condition. necessarily and I would have majority eluded the their if I did not warn its members of myself hold liable obvious error. example, hypothetical above its assessment states, upon a “By imposing obligation merely premises possessor, other

homeowner or ordinary reasonably make or her safe under his circumstances, under conceivable circum- every but also concurrence/dissent,... stance, Justice CAVANAGH in his substantially legal increased burden impose would added). Ante at 329 n 10 persons.” (emphasis upon because, unlike the I am assertion troubled this person entering a blind majority, do not believe that dangerous “obvious” where The Restatement defines a condition as recognized apparent he and the risk are to and would “both the condition visitor, man, exercising ordinary by position in the of the a reasonable Torts, 2d, judgment.” § perception, intelligence, 343A Restatement Further, only 1(b), p word ‘known’ denotes not “[t]he 219. comment activity itself, also knowledge of the condition or but of the existence activity or must appreciation of it involves. Thus the condition exist, recognized must be hut it also not he known dangerous, gravity probability the threatened harm must and the appreciated.” he Id. Cavanagh, J. restaurant is an extraordinary uncommon event. Moreover, I question of any wisdom rule of law that only applies under so-called “ordinary” idyllic circum- stances. The Restatement approach seeks to protect themselves, those who cannot including the more forty-three than million Americans with Ap- disabilities. parently, majority’s oversimplified Lugo approach takes a different view. sum,

In am troubled majority’s overreliance on Lugo’s “special analysis. aspects” By focusing solely analysis, this the majority repudiates the Restate- ment approach and, at the least, very unwisely elimi- nates the “unless” clause Michigan from jurisprudence.

II. MCIVJI 19.05 I share in the concerns expressed by Justice WEAVER and likewise disagree majority’s with the decision to revise M Civ JI 19.05 solely reflect Lugo standard. Quinlivan Co, v The Great & Atlantic Inc, Tea Pacific 244, 261; Mich 235 NW2d 732 (1975), this Court stated, “While the invitor is an absolute insurer of the safety invitee, the invitor has a duty to exercise reasonable care diminish the hazards ice and snow accumulation.” Such a duty requires “that reasonable measures be taken within reasonable time accumulation____” after an MId. Civ JI 19.05 accu- rately reflects the Quinlivan rule announced in followed this state nearly thirty years.4 provides: M JI Civ 19.05 “It was [Defendant] to take period reasonable measures within a reasonable of time after accu mulation injury of snow and ice to diminish the hazard [Plaintiff].” Mann v Shusteric Opinion by J. Weaver, standard, Lugo with its M JI 19.05 qualifying Civ uncertainty Michigan pre- added majority has dissent, to the liability law. In response

mises in “must be understood Quinlivan that majority claims Bertrand in decisions light subsequent of this Court’s However, neither Bertrand Ante at 333 n 13. Lugo" and ice snow. the accumulation Lugo nor involved conclusion, Further, taken its today’s opinion, logical of ice and any that accumulations imply be read to could dangers. Yet, in necessarily open snow rejected promi- “the Quinlivan specifically this Court hazards are ice and snow nently cited notion may give rise obvious to all and therefore Thus, Quinlivan, supra at 261. liability.” Quinlivan where unnecessary with creates tension none had existed before. is read majority opinion even if the

Additionally, i.e., only narrowly, qualification applies the Lugo is the accumulation where is first determined obvious, significantly alters today’s approach imposed possessors land. traditionally upon Nothing Quinlivan that an invitor must suggests ice the accumu- only diminish the hazards of and snow if “unreasonably “special aspects” lation involves I share in the concerns set forth Justice dangerous.” M regarding reasoning. this line of Because Civ WEAVER Quinlivan accurately Quinlivan JI 19.05 reflects law, respectfully disagree remains I must with light of this instruction in majority’s decision to revise Lugo. J., CAVANAGH, J.

KELLY, concurred {concurring part dissenting J. WEAVER, majority’s with the I concur in the result part). jury decision to vacate the verdict Opinion Weaver, J. agree that, case, specific under the facts of this knowledge irrel- licensee’s intoxication is regard evant with to whether the bar breached However, to duty common-law care dissent from the majority’s aspect extension the “special from Lugo Inc, 512; test” v Ameritech Corp, Mich (2001), 629 NW2d 384 to one cases as this involv- ing the natural accumulation of and snow ice.1 majority decision will create confusion regarding every duty citizen’s regarding accumulations of snow and ice. explanation, Without the majority changes the law regarding the duty premises possessors to invitees to respect of snow ice. accumulations and Almost years thirty ago, Quinlivan this Court in v The Great Co, Inc, Atlantic & Tea 260-261; 395 Mich Pacific (1975), 235 NW2d recognized that although snow and ice obvious, accumulations are “rigorous duty” the owed invitors to invitees from unreasonable justified harm imposition duty of a uniform invitors regarding Quin- accumulations of snow and ice. livan, therefore, held that possessors owed a duty invitees take “reasonable measures. . . within a reasonable time after an accumulation of ice and snow to diminish the hazard of injury to the invitee.” Id.

However, majority this case the holds: “open obvious,” [W]hen such an accumulation premises possessor must “take reasonable measures within Ford, Inc, 606; (1995), In Bertrand v Alan 537 NW2d 185 majority “special aspect” evaluating articulated a test for whether a danger unreasonably dangerous aрplication was so as to avoid the of open Lugo Corp, Inc, and obvious doctrine. In v Ameritech (2001), majority “special Mich 629 NW2d 384 transformed the aspect” by introducing severity test a new standard that focuses on possible aspects” might harm to define what create an unrea sonable risk of harm. ENTERPRISES, INC MANN V SHUSTERIC Opinion by Weaver, J. period after accumulation of snow of time

a reasonable injury [plaintiff]” ice diminish the hazard accumu- “special aspect” that makes such if there is some 332.] “unreasonably dangerous.” [Ante at lation The ma- Quinlivan. this, overrules majority With that, absent hold jority “unprepared it is says consideration aspects, and absent any special hazard, of a a homeowner nature to an owes an absolute premises ‍​‌​‌​‌‌​​‌​​‌‌​‌​‌‌‌‌‌​​‌‌​‌​‌​‌​​‌‌‌‌​​​​​​‌‌‌​‍possessor other to the accu- attendant to diminish hazards invitee n 13. of ice and Ante at 333 mulation snow.” Quinlivan premises possessor’s clarified While accumulations, and ice regarding all snow by holding law this area of confuses dаngerous are more some of snow ice kinds ice, involving Now, in snow than others. cases the accumulation must first be established will, by the Most accumulations and obvious. open and accumulation, open of be obvious.2 very nature to Thus, subjected most and ice cases will then be snow Now, “spe- there are test. unless Lugo’s special aspect of and creat- aspects” cial to an accumulation snow ice harm,” owes ing premises possessor risk of “severe duty to take measures a reason- no reasonable within danger. One can able time to invitees from nuanced debate and inconsistent con- readily anticipate of snow regarding clusions whether an accumulation or light, dry, hard-packed fluffy, or wet etc. heavy was the un- just how varied conditions affected and those posed by given of severity harm reasonableness accumulation. 2 explain premises of to the nature Because the fails duty regarding possessor’s of and icе that are not accumulations snow fully obvious, ice open the inevitable black case to and must await we majority’s to Quinlivan. and decision overrule

understand assess 470 Mich 320 Opinion Weaver, J.

In Michigan, where of and accumulations snow ice abound, every duty respect citizen’s to all accumu- of unambiguous. lations snow and ice should be by this Changes regarding duty Court should be Lugo well-reasoned and obvious. did not involve an accumulation of and ice.3The majority snow should not “special extend Lugo’s aspect” test to this context and should not Quinlivctn overrule and leave to the fact- finder the confusing of distinguishing task between differing of and types snow ice accumulations.4

Therefore, I dissent from the majority extending the Lugo “special aspects” test to accumulations snow and ice. I concur in the decision the majority in vacating jury for plaintiff because, verdict under the case, knowledge facts of this the licensee’s of plaintiffs intoxication is irrelevant whether the bar breached duty common-law of care to Bertrand, supra Lugo, supra stated reasonable measures within a reasonable possessors to take premises aspects” test, encourage majority because I would affirm essentially exceptions cases. inconsistent with open concurring), and should have remained true to well-established articulations of the change distinguish Because I continue to dissenting), and As I above, majority incorrectly suggests obvious doctrine. explained law, I at I said that the would snow would under 625-626 at this time my position (Weaver to the and ice not Quinlivan, Quinlivan’s Bertrand, stop amend M JICiv amend M Civ Today, again reject disagree Lugo majority (Weaver regarding J., concurring). Similarly, cases from other destabilizing I snow and ice accumulation cases were supra Lugo. articulation of with the evolution of the J., concurring obvious doctrine. accumulations JI at 19.05 the law my position 19.03 Lugo wrong (Weaver, regarding majority’s at incorporate I dissenting), for the reasons would change in this case is snow and J., snow (Weaver, defects and concurring decision to continue liability. the law and it. See ice, ice J., regarding time accumulations snow and ice.

Case Details

Case Name: Mann v. Shusteric Enterprises, Inc

Court Name: Michigan Supreme Court

Date Published: Jun 30, 2004

Citation: 683 N.W.2d 573

Docket Number: Docket 120651

Court Abbreviation: Mich.