*1 Burger King Novotney REHEARING) (ON KING BURGER CORPORATION NOVOTNEY 1990, Lansing. May 6, June at Decided No. 116731. Docket Submitted 6,1991, sought. appeal to at a.m. Leave 9:25 brought Novotney Ernest a Luella J. and against Burger action Circuit Court Oakland Foods, seeking damages Corporation Quality for R&G invitee, Novotney, injuries an when she Luella J. sustained ramp slipped at the defendants’ and fell on a J., summary court, Templin, granted restaurant. The Robert L. defendants, ruling an disposition premises open of which on and obvious the defendants’ Appeals The Court of owed to warn their invitees. no curiam, per unpublished opinion initially de- in an affirmed (Docket 116731), granted but No. later cided October rehearing. plaintiffs’ for a motion rehearing, Appeals of held: the Court On liability possessor an of A of land cannot be absolved by dangerous injury on the land invitee for caused condition dangerous merely or on that the condition was known the basis injury. invitee’s time of obvious the invitee knowledge dangerous properly as considered condition mitigation damages it relates invitee’s to the comparative negligence principles. in accordance with Reversed. Sawyer, P.J., dissenting, that a of land owes stated an invitee with no to an danger, of which the invitee is a condition of the land reasonably expected to be or the invitee aware of which can aware, this case constituted an and that for which the defendants condition plaintiffs. Dangers. — — Negligence Known or Obvious Invitees liability to an invitee cannot be absolved A References 2d, Liability 406. §§ Am Jur Premises upon conditioning liability landowner’s Modern status of rules licensee, party trespasser. injured or status ALR4th 294. 188 Opinion of the Coukt injury dangerous merely caused condition the land dangerous on the basis that condition was known obvi- injury. ous to invitee time at the (by I. Law Offices Samuel Bernstein Edmund plaintiffs. *2 Battersby), O. Morganti, Huckabay, Bodary,
Siemion, Padilla & Rush), (by PC. A. Barbara for the defendants. ON REHEARING Kelly Sawyer, P.J., Before: J. Michael JJ. Murphy, granted rehearing appeal J. We of this
Murphy, granting to reconsider the circuit court’s order summary disposition in favor defendants. We now reverse. arising
This is a case out aof fall premises. that occurred on defendants’ Plaintiffs were business invitees defendants’ restaurant leaving and, restaurant, while Luella Novotney, elderly slipped ramp woman, an on a directly adjacent coming to the sidewalk out of the alleged restaurant and is to have fractured and severely sprained ramp her left ankle. The was a ramp, apparently the same color up adjacent and made the same materials gradually sidewalk, and declined on its sides to the parking deposi- level of the lot. Plaintiff testified at ramp gradu- tion that she did not realize that the ally declined and that she lost her when balance expected. her foot came down lower than she gradual ramp’s slope was claimed that the down to parking lot caused her to fall and fracture her hearing summary ankle. At the on the motion for disposition, presented plaintiffs the affidavit of Burger v Opinion the Court expert, opined safety who their construction improperly ramp in that was was defective grant- designed court, trial or maintained. disposition, summary ing concluded defendants any nature of the presented by the and obvious. presented by con- the trial court’s plaintiffs’ claim in this is whether clusion case a business there is warn fails because danger. an invitee of occupier Although it has stated that the been safety of the of the land is not an insurer duty to reason- exercise there remains basic protection Kroll care for invitee. able (1965); 364, 373; 132 Katz, 374 Mich Huizing, App 437, 441; 157 NW2d Powers (5th ed), (1968); Keeton, Prosser & Torts 432 p implied there 425. This so because is an occupier representation the land made prepared been the invitee has *3 reception. Thus, Keeton, 422. Prosser & invitee’s the reasonably land must safe for the visit. be Montgomery 468; Co,& 336 Mich Torma v Ward (1953). 149 58 adequately in a land to an invitee is set forth jury instruction, 19.03. standard SJI2d Cunningham rely Defendants on Williams v Drug Stores, Inc, 495; 381 429 Mich 418 NW2d (1988), proposition occupier that an dangers does not owe with apparent may obvious and that the invitee so Although expected to them discover himself. appear Williams, in do not read such dicta does we holding proposi- in Williams to stand for that tion. Unlike this Williams did not deal with physical in the owner’s claimed defect business premises. Further, in the issue addressed Williams to-wit, one, limited "whether a merchant’s was a App 708 705 [May- Opinion of the Court duty to exercise reasonable care providing includes armed, visible security guards protect invitees Id., from the criminal acts of parties.” third 500. We conclude that Williams is neither nor factually legally controlling. however,
Recently,
this Court did examine
application
of the so-called "no duty to warn of an
open and
danger
premises
rule” in a
liabil-
Riddle v McLouth Steel
case. In
ity
Corp,
Products
Mich App
263-266; 451
(1990),
NW2d 590
this Court held that
the no-duty rule should be
abolished in Michigan,
stating
part:
rule,
We believe that
no-duty
assump
like
risk,
tion of the
should
Michigan.
be abolished in
Anderson,
Felgner
See
54;
Mich
(1965).
NW2d 136
Both the invitee
invitor
have
duty to exercise reasonable
care under
a.
hazardous
apportionment
policy supports
circumstances. Public
damages
according
to fault.
Therefore,
knowledge
invitee’s
dangerous
of a
properly
condition is
invitee’s
considered
itas
relates to the
negligence
mitigation
damages
comparative
accordance
with
princi
Gieseler,
ples. See, e.g.,
Forche v
(1989).
588, 597;
the the relate to the of both However, invitor and the invitee. it does not automatically absolve the [Id., liability. invitor of 266.]
See also
Pressley
Home, Inc,
VFW Memorial
Mich App 709;
A rule of law which provides
a business
invitor who creates or
allows an
premises
*4
on his
has no duty to its invitees
to correct
it because it is open and obvious is not
Rather,
rational.
questions
concerning
the conduct
of the invitee and the obviousness of the danger Burger King
by Sawyer, P.
J.
they relate to whether either the invitor or the
negligent
both,
were
are better resolved
supra.
Riddle,
the trier of fact.
Cf. Quinlivan Co, Inc,
Great Atlantic & Pacifíc Tea
(1975) (the
244, 261;
relevant the context contributory negligence). present plaintiffs In were able to estab- questions concerning lish of fact whether was defective and whether open the hazard created was disposition summary inap- Therefore, obvious. was propriate.
Reversed and remanded. J., J. Kelly,
Michael concurred. (dissenting). respectfully Sawyer, I dissent. original opinion, grant In our we affirmed the disposition, summary concluding that there was no genuine issue of material fact with danger open issue whether the and obvious.1 My colleagues willing grant rehearing are now open danger and conclude that doctrine is no and obvious longer light adoption viable in comparative negligence.21 am not. recognize majority’s I that the decision is consis- tent with a number of recent decisions of this Pressley Court. Home, See Inc, v VFW Memorial 1Judge Murphy, however, dissented, concluding that there was a genuine issue of material fact. fact, majority open In danger declares the doc trine to be irrational: provides A rule of law which that a business invitor who premises
creates or allows an
on his
has no
to its invitees to
correct
because
obvious is not rational.
[Ante
708.]
*5
App
705
710
188 Mich
by Sawyer, P.J.
Dissent
Riddle v
(1990);
709;
830
App
185 Mich
462 NW2d
Corp,
McLouth Steel Products
259;
App
182 Mich
Gieseler, 174 Mich
v
Forche
(1990);
that no further is owed li- to an invitee or once the invitee or licensee dangerous alleged censee is aware of the condition. it is Supreme having duty, defined the Court’s Court, Court, and not this redefine if is even duty, a redefinition Burger King (On Reh) by Sawyer, P.J. [Pressley, supra J., (Sawyer, at 712-713 order. dissenting).] repeats majority in the case at bar prior con- of these cases: it confuses the mistake comparative cept with the doctrine of negligence and reaches the erroneous conclusion change comparative can somehow nature of the In order to establish the that owed. *6 negligence action, it defendant is in a a liable legal must shown that the defendant owed a plaintiff duty duty. to the and that he breached Michigan, 386 Roulo v Automobile Club of 324, 328; 192 Mich necessarily therefore if not follows that the defendant does duty, duty or did a owe the a not breach negligent. owed, which was the defendant is not negligent, If the defendant is not also neces- sarily comparative negligence follows negligent, is, an issue. That if the defendant is not negligence obviously then there is dant of the defen- compare plaintiffs negli- with the own gence. only explanations Rather, the available plaintiffs injuries plain- that tiffs own were due to the
negligence, of a third pure party, or to a accident which was not the anybody. any event, fault of In absent by liability defendant, there is no of the defen- dant.
Thus the must be addressed by the case at bar is the nature of the defendants to owed plaintiff. That what is the possessor by a owed of land to his invitees? The possessor by of land to his invitees black-letter law and is set forth in 2 Restatement pp Torts, 2d, § 343, 215-216: possessor subject liability A of land is for by Sawyer, a condition to his invitees physical harm caused if, if, he only the land but (a) of reasonable care knows or the exercise condition, realize and should would discover the that unreasonable risk of harm to it involves an invitees, such (b) expect will not discover or should danger, protect them- realize the selves or will fail it, against (c) protect reasonable care to fails to exercise against danger. them possessor It is also black-letter law that dangers: or is not liable known possessor A liable to his invitees of land is not physical by any activity harm to them for or condition on the land whose obvious to ipate caused is known them, antic- unless the should despite knowledge or the harm such obvious- Torts, 2d, 343A, p ness. Restatement [2 218.] explains in the Restatement further The comment liability: this limitation landowner’s part Reasonable care on the ordinarily require precautions, therefore does not *7 warning, against dangers or even which are visitor, him known to the may or so obvious to that he expected be to discover them. Illustration: company large 1. The A has in its store a front door, plate glass. heavy made of The door is well visible, lighted obvious to plainly and its existence is person exercising any ordinary atten- B, store, perception.
tion and while the a customer in the preoccupied thoughts, his own mistakes with glass open doorway, for an and runs his head against injured. company it and is A is not liable Torts, 2d, 343A, e, to B. Restatement comment [2 § pp 219-220.] doctrine is also Burger by Sawyer, (5th 61, Keeton, ed), Torts in Prosser & § discussed 427: p obliga- Likewise, is no in the usual there dangers against to the invitee protect
tion him, obvious and to or which are so are known expected to apparent discover may reasonably that he be may it Against such them. conditions protect expected that the visitor will normally be himself. recognized by
Further, this has been principle in recently as its decision Supreme the Court as supra Williams, at 500: of land owes his invitees is duty a absolute, however. does not extend condi-
tions an unreasonable risk cannot be from which anticipated that an invitee himself. apparent dangers or to so obvious and expected to discover them if the is correct that this observa- majority Even tion Williams dicta, in and therefore not bind- acknowledge fails to the ing, majority in Williams has been espoused long es- principle law. Williams reflects in tablished Court, in the unlike the case at Supreme majority bar, acknowledge willing that fact. appear it does not
While clearly adopted 343A of Restate Court has Williams, in case other than did embrace ment general standard of an invi Acker 343 of the first Restatement tee under § berg Muskegon Osteopathic Hosp, 599-600; looked Similarly, 115 NW2d case of the second Restatement to §343 v Great majority, Quinlivan upon by relied Co, Inc, Atlantic Pacific Tea & 258- *8 714 188 705 Mich by Sawyer, P. J. (1975).3
261;
Furthermore,
Alternatively, even if be concluded that majority Quinlivan, supra, reliance is curious. The majority opinion states: Rather, questions concerning the conduct of the invitee and danger the the resolved obviousness relate to either whether both, negligent or invitor were are better Riddle, Quinlivan supra. the trier of fact. Cf. Co, Inc, 244, 261; Great Atlantic & Pacific Tea Mich (1975).
NW2d 732 at [Ante 708-709.] Quinlivan supports proposition How this is unclear inasmuch as comparative adopted Michigan was until not more than years Sterling Heights, 638; three NW2d 511 conduct will often be relevant later Placek v Quinlivan, supra states that the invitee’s contributory negli- in the context of gence. Quinlivan concluded that and snow are not ice hazards to all hazards. defendant existed under the facts of that tive tion to the invitor must and an exercise reasonable care diminish these Thus, duty part the Court that a found on the compara- not that fact, applied. Quinlivan opposi- doctrine In stands in position, majority’s support not in of it. Further, majority while is correct that the obviousness of a (so danger material fact exists with negate long genuine is a the trier of fact as a issue of obviousness), that does not danger obvious, the fact that once it is determined that the negligent is not he defendant liable because is not because no duty The trier was owed. of fact determines the obviousness of the danger comparative negligence, not to resolve issues of but to deter- plaintiff. danger mine whether was owed to the If the was obvious, If negligent. then no was owed and the not defendant was obvious, then was questions the trier of then, then, only comparative fact consider causation, negligence, and so on. *9 Burger by Sawyer, P.J. Dissent jurisprudence §§ embrace 342 and our adopting 343A, § the the Restatement without adoption is suffi- of 343 Court at in the case to conclude that defendants cient plain- respect plaintiff to no with bar owe to possessor injuries. section, Under that a tiff’s injuries caused to an invitee a land is liable only if the involves on the land condition condition Ackerberg, to the invitee. an unreasonable risk supra Furthermore, § the second 600. 343 of at quoted approval Restatement, with which supra, it clear a Quinlivan, makes that expect only if he should that is liable land I not himself. invitee will discover handicap ramp poses an cannot conclude that Buildings open risk invitees. to unreasonable to required public be to to accessible expect handicapped. Therefore, must an invitee handicap ramp on somewhere encounter premises. is, therefore, ex- not unreasonable pect that an invitee will be the lookout walking. ramp In other watch he is where expect words, I do not it unreasonable to find an invitee to a will discover a restaurant signs warning without the use access paint. above, For the reasons stated I would conclude no to an invitee that a of land owes danger, open with to an and obvious invitee of the land of which the a condition reasonably or of which the invitee can aware expected presented only Thus, to be aware. handi- in the is whether the case bar cap an constitutes original opinion We in our condition. concluded obvious, a the condition here was agree. Accordingly, with I still conclusion to warn defendants 188 by Sawyer, handicap ramp. duty, Since defendants owed no negligent. were not Since defendants were negligent, comparative negligence doctrine inapplicable. I would still affirm.