Earlier this year, Court of Appeals Judge Amy Ronayne Krause, joined by Judges Davis Sawyer and Peter O’Connell, issued for publication a noteworthy premises liability decision, Chesser v. Raddisson Plaza Hotel at Kalamazoo Center.
They’ve apparently had seconds thoughts on the matter. They recently vacated the decision and replaced it with an unpublished opinion.
Chesser, a convention speaker, was injured when she fell from the back of a stage.
The hazard was open and obvious, the panel ruled. There were no guards at the back of the elevated stage and there was a gap between the stage and a wall.
In the original opinion, the panel addressed two issues: Did the hazard have “special aspects” that made it unreasonably dangerous despite its open and obvious nature? And was the hazard effectively unavoidable?
Second question first: The COA rejected a defense argument that Chesser, being aware of the hazard, could have chose not to get on the stage and speak, no matter how awkward or embarrassing that may have been.
Being on defendant’s stage 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)[.]
So, what about those “special aspects?” In the original, published opinion, part of the panel’s reasoning that Chesser had no claim included a discussion of other speakers who had crossed the stage without incident. Everyone else made the trip safely. So, the panel reasoned, the hazard was effectively avoidable.
Chesser’s accident was a “statistical fluke,” as Krause put it.
Now we’re telling you to forget about it.
On April 5, the COA issued an order vacating Chesser. The order stated a new opinion would be issued.
The new opinion was issued later. It took the COA two tries to get it right.
On April 17, the COA issued an unpublished opinion in Chesser. But unless one knew about the April 5 order, there was no solid indication of the unpublished opinion’s significance.
A quick note: when the COA vacates an opinion, the vacating order is usually accompanied by the replacement opinion, or, when the replacement opinion is issued later, there is usually an order referring back to the order that originally vacated the opinion being replaced.
There must have been a “What’s going on here?” inquiry because two days later, on April 19, the unpublished opinion was released again, with an order vacating the April 17 opinion and the key phrase “ON RECONSIDERATION” (which should have been on the April 17 opinion) displayed on the first page of the unpublished April 19 opinion.
It was an uncharacteristic lapse in the COA’s usually meticulous handling of its opinion releases.
Okay, so administrative miscues aside, what’s the difference between the vacated published version of Chesser and the unpublished, non-binding version of Chesser?
The statistical- fluke discussion is gone, along with the suggestion that Chesser didn’t really have the option of dodging her speaking engagement.
What’s emphasized is that photographs of the accident scene showed an open and obvious hazard, which a reasonable person would have appreciated given the elevation, the tight quarters and the lack of railings or guards.
To the extent the parties were arguing what the photographs showed or didn’t show regarding the hazard from Chesser’s perspective, both parties missed the mark, said the panel in the newly issued opinion. The test is what a reasonable person would have perceived, not Chesser.
Bottom line: the COA issued a published opinion with noteworthy statements about avoiding hazards and calculating whether a hazard is avoidable based on the number of other safe encounters. The COA took that one back and replaced it with a legally less-ambitious opinion resolving an “open and obvious” premises claim.
The published version of Chesser was fun while it lasted.