What are the odds?

After Norma Chesser was injured when she fell from a conference center stage, it was obvious that the condition she encountered was open and obvious.

Chesser and others were on the stage to deliver speeches to a conference. The stage was an elevated platform with a podium. There was a row of chairs set close to the back edge for Chesser and others to use while they waited for their turn at the podium.

The back of the platform was not up against a wall and had no railing or other guards. Chesser fell while walking between the chairs and the back edge of the platform.

Any reasonable person in Chesser’s position would have appreciated the hazard, the Michigan Court of Appeals ruled in Chesser v. Raddisson Plaza Hotel at Kalamazoo Center.

But to resolve Chesser’s premises liability claim, “[t]he more difficult question,” wrote COA Judge Amy Ronayne Krause, “is whether the hazardous condition was effectively unavoidable.”

The defense argued that Chesser, aware of the setup on the platform, could have chosen not to go up there.

True enough, Krause acknowledged.

However, the instant situation would not merely have generated awkwardness had Ms. Chesser elected to decline to ascend the stage, unlike the situation in Joyce v Rubin, 249 Mich App 231, 242-243; 642 NW2d 360 (2002).

Being on defendant’s stage [to deliver a speech at a conference] was the primary reason for her presence at defendant’s premises in the first place. Ms. Chesser could technically have avoided the hazard, but she could not have avoided the hazard without completely undermining her use of defendant’s facilities.

A condition is “effectively unavoidable”‘ if it cannot be avoided by an invitee without that invitee avoiding the premises altogether. Hoffner v Lanctoe, 290 Mich App 449, 461-464; 802 NW2d 648 (2010), lv pending 489 Mich 877 (2011) … .

“There is no meaningful difference between avoiding the premises and avoiding using the premises. Just because Ms. Chesser technically could have refused to ascend the stage, the hazard was not therefore effectively avoidable.

Well, defendant pointed out, others, including Chesser, had safely used the same route before Chesser fell.

“This argument has merit,” wrote Krause, “but strictly speaking, it goes too far.”

It’s a matter of the odds.

[I]t is entirely possible for someone to have a stroke of good luck when navigating a hazard, and furthermore, “effectively unavoidable” does not necessarily mean “absolutely unavoidable.”

Consequently, the fact that a plaintiff or other person passed a hazard unscathed does not, all by itself, dispose of whether a hazard is “effectively unavoidable.”

Nevertheless, this argument makes sense as applied to the particular situation before us now. The number of times a hazard is safely bypassed will eventually show that that avoidance of harm is not a statistical fluke.

Indeed, defendant cites to a number of unpublished opinions from this Court, all of which involved situations in which a hazard was faced numerous times by numerous people without any harm befalling them prior to any injury suffered by the plaintiffs.

Krause acknowledged the persuasive-only value of unpublished cases.

[But] [t]he cases cited by defendant are consistent with the most rational way of evaluating the effective unavoidability of a hazard where that hazard has been successfully avoided: the more frequently a hazard is traversed without harm, the more likely it is that the hazard is effectively avoidable. …

The hazard does not appear to have been faced by a great number of people over an extended period of time, but the available evidence shows that the statistical fluke was Ms. Chesser’s fall, not the other speakers’ safety.

Consequently, we conclude that under these circumstances, the facts show that the hazard was not effectively unavoidable.

And there you have it. It’s long odds for plaintiffs in premises cases, and the odds keep getting longer and longer.