Whilе washing windows behind her mobile home, plaintiff tripped over a supporting wire that extended from near the ground at the base of the home to a utility pole. The trial court determined that any danger presented by the wire was open and obvious аnd granted defendant summary disposition. On appeal, plaintiff claims the trial court erred because the open and obvious doctrine cannot apply to this case. She argues the doctrine is inapplicable because she did not allege a failure to warn but, instead, alleged that defendant had failed to maintain the premises in a reasonably safe condition by placing the support wire where it did.
We conclude that plaintiffs argument is inconsistent with modem open and obvious jurisprudence
Reviewing the trial court’s grant of summary disposition de novo, Pendzsu v Beazer East, Inc,
A number of “donuts” had been affixed to the wire, apparently to increase its visibility. However, they were at the bottom of the support wire at the time of the accident, apparently having slipped to that location at some prior time. Plaintiff did not allegе that, because the donuts were mislocated or otherwise, defendant had negligently failed to provide warning
Having stated her complaint in this fashion, the gist of plaintiff’s main argument on appeal is that the trial court erred in applying the open and obvious doctrine because this was not a “duty to warn” case. The premise of this argument is that the open and obvious doctrine applies only where failure to warn allegations have been made, and that it is inapplicable where the allegation is that a defendant has failеd to maintain premises in a reasonable condition. This premise is contrary to recent Michigan case law.
We begin with a review of Riddle. Plaintiff Riddle alleged that defendant McLouth had both “breached its duty to exercise reasonable care” and failed to aрpropriately warn him about the presence of oil in the work area where he fell. Riddle, supra at 90. The theory of the case was that McLouth had created an unreasonable risk of harm by allowing the oil to accumulate, failing to take reаsonable steps to clean it up, failing to exercise reasonable care in inspecting the floor, failing to designate a safe path around the dangerous area, and failing to warn Riddle about the presence of the oil.
The occupier of premises, no doubt, is bound, as to persons thereon by his express or implied invitation, to keep the premises free from, or give a warning of, danger known to him and unknown to the visitor. [Id. at 91-92, quoting Caniff, supra at 647 (emphasis supplied).]
The Riddle Court further noted that, in Quinlivan v Great Atlantic & Pacific Tea Co, Inc,
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he . . . should expeсt that they will not discover or realize the danger .... [2 Restatement Torts, 2d, § 343, as quoted in Riddle, supra at 93 (emphasis supplied).]
Finally, the Riddle Court noted that, in Williams v Cunningham Drug Stores, Inc,
*495 A possessor of land is not liable to Ms invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them .... [2 Restatement Torts, 2d, § 343A(1), as quoted in Riddle, supra at 94 (emphasis supplied).]
On the basis of these precedents, the Riddle Court stated that “the ‘no duty to warn of open and obvious danger’ rule is a defensive doсtrine that attacks the duty element that a plaintiff must establish in a prima facie negligence case." Riddle, supra at 95-96 (emphasis supplied).
We conclude from the precedents summarized in Riddle that the open and obvious doctrine applies both to claims that a defendant failed to warn about a dangerous condition and to claims that the defendant breached a duty in аllowing the dangerous condition to exist in the first place. In Caniff supra at 647, the Court reasoned that an owner of premises has no duty “to keep the premises free from” dangers if those dangers are known to a visitor. In Quinlivan, supra at 258-260, the Court adopted the Restatemеnt rule that a possessor of land can be subject to liability for “a condition on the land” only if an invitee would not discover or realize the danger. In Williams, supra at 500, the Court reasoned that a possessor of land is absolved of any duty to “protect inviteеs” from obvious and apparent dangers. The Williams Court did not limit the open and obvious doctrine to situations where the defendant failed to provide a warning and cited with approval the Restatement provision extending the doctrine to liability arising оut of “any activity or condition on the land.” Id. at 500 & n 12. The Riddle Court, supra at 95-96, concluded that the open and obvious doctrine attacks the duty element
Further, the Bertrand Court noted that premises liability cases are usually based on one or more of three theories—failure to warn, negligent maintenance, or defective physical structure—without suggesting that the protections affordеd by the open and obvious doctrine are limited to the failure to warn theory. Id. at 610. Consistent with that approach, the Court held in one of the consolidated cases before it, Maurer v Oakland Co Parks & Recreation Dep’t, that summary disposition had been properly granted to the defendant under the open and obvious doctrine, even though the plaintiff alleged that the defendant had failed to maintain safe premises for invitees and failed to exercise reasonable care for their safety, in addition to the failure tо warn claim.
Plaintiff further argues that, in applying the doctrine, the trial court erred in concluding that there was insufficient evidence tо present a factual question for the jury with respect to the open and obvious nature of the support wire. Having reviewed the pic
Finally, plaintiff arguеs that, even assuming the support wire was “open and obvious,” the trial court erred in granting summary disposition without addressing whether it still presented an unreasonable risk of harm. As stated in Bertrand:
[T]he rule generated is that if the particular activity or condition creаtes a risk of harm only because the invitee does not discover the condition or realize its danger, then the open and obvious doctrine will cut off liability if the invitee should have discovered the condition and realized its danger. On the other hand, if the risk of harm remains unreasonable, despite its obviousness or despite knowledge of it by the invitee, then the circumstances may be such that the invitar is required to undertake reasonable precautions. [Bertrand, supra at 611 (emphasis supplied).]
Accordingly, the Court reasoned that, while the danger of tripping and falling on a step is generally open and obvious, there may be special aspects of particular steps that make a risk of harm unreasonable nonetheless. With respect to the Bertrand case, the Court concluded that evidence regarding the “congested pedestrian traffic pattern” resulting from “the construction of the step, when considered with the placement of the vending machines and the cashier’s window, along with the hinging of the doоr” was sufficient to prevent summary disposition for the
In contrast to the Bertrand case, plaintiff has come forward with no evidence upon which a rational factfinder could conclude that, notwithstanding its open and obvious nature, the support wire, still presented an unreasonable risk of harm. Instеad, as in the Maurer case, “[t]he plaintiffs only asserted basis for finding that the [support wire] was dangerous was that she did not see it.” Bertrand, supra at 621. Because plaintiff has “failed to establish anything unusual” about the wire and “not presented any facts that the [support wire] pоsed an unreasonable risk of harm,” notwithstanding its open and obvious nature, the trial court properly granted summary disposition. Id.
We affirm.
Defendant has not argued that it is not responsible for the wire or its placement.
Because Riddle thus involved both “duty to maintain premises in a reasonably safe сondition” and “duty to warn” claims, it might reasonably be inferred that the Riddle “open and obvious” analysis applies to both kinds of claims. However, the contested jury instruction, upon which reversal was granted, had only to do with the alleged failure to warn. Riddle, supra at 100.
Similar treatment was afforded claims other than failure to warn in Boyle v Preketes,
We further note that if we were to adopt plaintiff’s argument in this case, the open and obvious doctrine could be avoided in most, if not all, сases in which it would otherwise apply, simply through the expedient of artful pleading.
Of course, Bertrand, further held that this is not the case, i.e., observation of an open and obvious danger would not prevent injury, if, notwithstanding that observation, an unreasonable risk of harm remains. See remaining discussion in this opinion.