A Court of Appeals ruling that a jury should decide whether soap residue in a YMCA shower is an open and obvious danger is “flabbergasting,” says Michigan Supreme Court Chief Justice Robert P. Young Jr.
Milagros Dascola slipped and fell in the women’s shower at a Lansing YMCA. The case went to trial. At the close of proofs, the trial court granted Dascola’s motion for a directed verdict, ruling as a matter of law that soap scum on the shower floor was not an open and obvious condition.
The case went to the jury on the remaining issues. The verdict was $110,000; Dascola was found 40 percent negligent. The trial court entered a $62,000 judgment.
In a split decision, the COA, in Dascola v. YMCA of Lansing (majority opinion) (dissent), reversed and remanded for a new trial. The majority ruled that the open and obvious issue should have gone to the jury. The dissent, although not openly flabbergasted, said the trial court should have granted the YMCA’s motion for a directed verdict as a matter of law on the open-and-obvious issue and dismissed the case.
Dascola appealed. The MSC denied leave.
In a concurring opinion, Young, joined by Justice Stephen J. Markman, did a little coaching from the bench for the defense while explaining his vote to deny leave:
There is no question that, under Michigan’’s well-established premises liability law, the presence of water and soap residue in a public shower constitutes open and obvious dangers.
As such, these conditions do not give rise to liability for a premises owner, and I believe that the lower courts clearly erred in not reaching this conclusion as a matter of law. However, because defendant has not filed a cross-appeal in this Court challenging the lower court’s determination that defendant is not entitled to summary disposition, I concur in the Court’s order denying leave to appeal.
But Young had some choice words about the notion that there could be any factual dispute about the open-and-obvious issue in this case:
[T]he conclusion by the majority of the Court of Appeals that a question of fact exists regarding whether soap residue in a shower presents an open and obvious danger is, quite frankly, flabbergasting. Even a casual review of this state’s premises liability and “open and obvious” caselaw compels the conclusion that any danger created by soap residue in a public shower presents an open and obvious condition.
Although the proposition is so self-evident that it hardly merits stating, it is within common understanding that the flat tiled surfaces that comprise a shower will by their nature become wet and can therefore become slippery, particularly when soap or similar products are used. It is hardly surprising that soaps, shampoos, or other bathing substances will be used in a shower and may leave residue or “soap scum” on the shower’s surface. That such surfaces may become slippery represents a quintessential “open and obvious” hazard.
Moreover, there were no special attributes to this shower that rendered it uniquely or unreasonably dangerous. A reasonably prudent person of ordinary intelligence understands that a wet public shower poses a slip-and-fall hazard, particularly where soap or other residue may be present on the shower’s surface.
The conclusion of the Court of Appeals majority holding that there is a question of fact in this regard defies common sense.