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.

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MSC’s Young: COA slip-and-fall ruling ‘defies common sense’

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.

Battle lines drawn as MSC denies leave in black ice case

The Michigan Supreme Court’s denial of leave to appeal in Brown v. Taubman Co., et al., means that a slip-and-fall plaintiff can take her black-ice case to a jury.

The Court of Appeals had ruled that there was conflicting evidence whether the black ice was open and obvious. The MSC denied leave on a 3-3 vote.

Justice Brian K. Zahra sat this one out because he was on the Brown panel.

The black-ice issue needs to be addressed, said Justice Stephen J. Markman in his dissenting opinion.

This case illustrates the ongoing confusion in the law of this state concerning the “open and obvious” status of “black ice,” confusion that this Court has an obligation at some point to dispel. Instead, once again, we fail to afford guidance and direction on this matter, leaving in place conflicting and discordant decisions, and thereby enabling defendants and plaintiffs to each rely upon different precedents in support of their respective positions that “black ice” is or is not “open and obvious.” …

As the highest court of this State — a state in which snow and ice have sometimes been known to accumulate during winter months — it is our responsibility to address the confusing and inconsistent approaches in our caselaw and to clarify the rights and obligations of persons who must regularly confront these conditions.

True enough.

As to how it should be resolved, the black-ice battle lines are drawn in Justice Marilyn Kelly’s concurrence and Markman’s dissent.

Here’s Markman’s take:

The Court of Appeals, citing the existence of conflicting evidence, concluded that reasonable minds could differ regarding whether the so-called “black ice” was open and obvious. I disagree. A lifelong resident of Michigan should be well aware that during winter, when for several days snow has been falling, and when temperatures have been and remain below freezing, ice may form on parking lots. These factors are more than sufficient, in my judgment, to establish the presence of potentially hazardous conditions that would have alerted an average person of ordinary intelligence to discover and react to the “danger” upon casual inspection.

Just a minute, replied Kelly, you appear to be saying that all icy conditions are open and obvious:

The dissent opines that a lifelong resident of Michigan should be aware that black ice forms during the winter. Hence it is open and obvious even when invisible. If this position were adopted by the Court, people in Michigan would be on notice that, in winter, black ice is to be expected and no liability for falling on it exists. This proposition is unprecedented in Michigan law. As our Court of Appeals has astutely observed, black ice, defined as an invisible or nearly invisible coating of ice on a paved surface, is not by its nature open and obvious.

Well, Markman responded, if you just focus on the visibility aspect:

black ice will never be considered “open and obvious,” and property owners, to whom black ice is similarly invisible, will always be held liable for accidents arising from this condition.

Further, contrary to the analysis of Justice KELLY, “[t]he [‘open and obvious’] test is objective, and the inquiry is whether a reasonable person in the plaintiff’s position would have foreseen the danger, not whether the particular plaintiff knew or should have known that the condition was hazardous.” …

That “black ice” may have obtained in this case does not alter the reality that as wintry conditions persist in this state, a reasonable person will increasingly be alerted to the hazardousness of such conditions, and will increasingly be assumed to have encountered conditions fairly characterized as “open and obvious.”

Another black-ice case will find its way to the MSC in the foreseeable future and perhaps the Court will then seize the opportunity to provide needed guidance.

Until then, there’s plenty of a la carte precedent from which to choose.

Premises opinion draws fire from dissenter

The curious world of OpenandObvious Land (many thanks to John A. Braden for his excellent travelogue) is now a little more curious, according to a dissenting Court of Appeals judge in a recent unpublished case.

In Walker v. Kilpatrick (majority opinion), the plaintiff, a U.S. mail carrier, slipped and fell on defendant’s driveway.

Both plaintiff and her supervisor, said the Walker majority, saw the “alleged black ice.” Plaintiff saw it after she fell. Her supervisor, apparently summoned to the scene after plaintiff fell, said the ice was obvious once it was pointed out to him.

Well, okay, plaintiff lives in Michigan, works outdoors and should have known that because it was winter, slippery hazards are a fact of life and danger lurks everywhere.

But the mail must go through, and there was no alternate route, plaintiff claimed.

Nonsense, said the Walker majority:

[T]he evidence suggests that despite the visible ice present in places on the driveway, there was nothing preventing plaintiff from stepping around the icy spots or stepping off of the driveway onto the snow in order to avoid icy patches.

While doing so may have been mildly inconvenient, public policy requires that people take reasonable care for their own safety. …

Because there were ice-free alternative paths for plaintiff to traverse in order to deliver defendant’s mail, the hazard posed by the patch of ice plaintiff ultimately slipped on was not “effectively unavoidable.” …

Simply because snow presents an open and obvious danger giving rise to a need to watch one’s footing and proceed with some care does not mean that walking upon it is not a safe and viable alternative such that traversing nearby ice is deemed unavoidable.

Hey, wait a minute, said Judge Mark Shapiro in his dissent, I looked at the same photos the majority did:

The photographs offered in evidence show that there were two strips of the driveway shoveled, but unsalted, presumably for the homeowner’s car to access the driveway.

As they approach the house, these two strips are joined at a right angle by a walkway that leads to the porch where the mailbox was located.

The photographs also show that there was a large area of ice covering the “intersection” where the driveway strips and the walkway to the porch meet. There was no way to traverse the walkway to and from the porch other than to traverse this icy area.

The area of visible ice was plainly too large for someone to safely step over without risking a loss of balance, or even having to jump.

The only alternative to walking over this large icy area was to walk through the adjacent grassy area that was completely snow-covered with uneven levels of snow that would interfere with one’s footing and with no way to tell whether there was ice under the snow.

Here’s the real whipsaw in the case, according to Shapiro:

This Court has held “as a matter of law that, by its very nature, a snow-covered surface presents an open and obvious danger because of the high probability that it may be slippery.” Ververis v Hartfield Lanes, 271 Mich App 61, 67; 718 NW2d 382 (2006).

Thus, plaintiff had to either walk on the icy, unsalted walkway, or traverse snow-covered areas which, as a matter of law, themselves “present[ed] an open and obvious danger.” Id
.
I fail to see how a path that, as a matter of law “present[s] an open and obvious danger,” can be said to constitute a reasonable alternative to walking on an icy walkway.

Indeed, had plaintiff attempted to walk on the snow-covered areas and slipped and fallen there, defendant could, under our rule of law, argue that the snow presented an open and obvious hazard which plaintiff could have avoided by walking on the shoveled walkway.

Thus, while the uneven snow-covered grassy area represented an alternative path, it did not represent one that afforded a reliable degree of safety.

It seems a curious rule of law that providing a second hazardous path vitiates the duty to take reasonable measures to render one path safe.

But that’s the way it is in OpenandObvious Land.

MSC rules in car wash slip-and-fall case

ice covered carA divided Michigan Supreme Court has ruled that a plaintiff who slipped and fell while using a coin-operated car wash in freezing conditions can’t sue even though equipment designed to keep the wash bays ice-free wasn’t working.

The 4-3 decision reverses the Michigan Court of Appeals in Kachudas v. Invaders Self Auto Wash, Inc. (majority opinion) (concurring opinion).

The COA held that Kachudas’ claim sounded in ordinary negligence, not premises liability, and as such, the trial court erred in applying the open and obvious doctrine to dismiss his claim.

The COA majority opinion in Kachudas set this factual scene:

  • Two of the four wash bays “had ice formation.”
  • The equipment designed to keep the bays ice-free wasn’t working but should have been given the outside temperature.
  • The car wash owner was dealing with the issue when Kachudas fell and broke his wrist.
  • The owner had begun placing orange warning cones in front of the bays but got sidetracked when a friend showed up and began talking to him.
  • The owner went to bay three, where Kachudas fell; it was one of the two that did not have “ice formation” when the owner arrived to inspect his business.
  • The floor looked wet but the owner concluded there was ice because the floor was slippery.
  • The parties agree that the ice Kachudas slipped on formed when he sprayed his own car with water.

On these facts, the COA concluded:

Plaintiff’s allegations, that defendant knew of a malfunctioning heating system, but did not do anything, or did not take sufficient action, to protect the public from the likely effects of the malfunctioning system, and that defendant’s failure to act violated a duty to him and the public, are allegations concerning conduct that sound in negligence.

While we recognize that plaintiff’s complaint also pleads allegations typically found in premises liability claims, it is plain that the complaint challenges defendant’s conduct in the face of knowledge about the malfunctioning heating system. …

[T]he applicability of the open and obvious danger doctrine depends on the theory underlying the negligence action. …

Because the trial court misconstrued the underlying theory of the case as one for premises liability rather than negligence, the trial court erred as a matter of law in applying the open and obvious doctrine.

Last month, the MSC heard oral arguments on whether to grant leave to appeal. In a May 21 order, the Court declined to take the case.

All justices except Diane Marie Hathaway agreed that the trial court correctly classified the case as a premises claim.

Although an injured person may pursue a claim in ordinary negligence for the overt acts of a premises owner on his or her premises … the plaintiff in this case is alleging injury by a condition of the land, and as such, his claim sounds exclusively in premises liability.

But the Court was more closely divided on whether there was a jury issue involved.

Justices Elizabeth A. Weaver, Maura D. Corrigan, Robert P. Young Jr. and Stephen J. Markman said nothing could be more obvious than the notion that water sprayed into freezing air generally produces ice:

[T]he circuit court properly ruled that the alleged hazardous condition was open and obvious, because a reasonably prudent average user of ordinary intelligence spraying water outdoors in a temperature range of 11 to 24 degrees would anticipate the likelihood of freezing and the resulting danger therefrom. Mann v. Shusteric Enterprises, Inc., 470 Mich. 320 (2004); Slaughter v. Blarney Castle Oil Co., 281 Mich. App. 474 (2008).

Justice Michael F. Cavanagh, joined by Chief Justice Marilyn Kelly, conceded the point that the case was a premises claim. However:

I would nonetheless affirm the Court of Appeals result because, on the facts of this case, summary disposition was improper. Plaintiff has raised a genuine issue of material fact regarding the open and obvious doctrine, and the issue should be submitted to a jury.

Cavanagh didn’t get more specific about why the case should go to the jury.

Hathaway had this to say:

I respectfully dissent from the order of this Court which reverses the Court of Appeals and reinstates the Genesee County Circuit Court’s order granting summary disposition to the defendant.

I believe the trial court’s grant of summary disposition was in error and that the Court of Appeals properly reversed that decision. Accordingly, I would affirm the Court of Appeals.

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Markman says MSC majority tripped up in pothole case

“Darkness at the break of noon …
“Eclipses both the sun and moon …”

– Bob Dylan, “It’s Alright, Ma (I’m Only Bleeding)”

Pavement, potholes, injured plaintiffs and demands for damages have been a much tougher sell ever since the Michigan Supreme Court announced its open-and-obvious-special-aspects analysis in Lugo v. Ameritech Corp., 464 Mich. 512 (2001).

But throw in a debate about lighting and you just might have something.

In Galliher v. Trinity Health-Michigan, an unpublished per curiam decision by the Michigan Court of Appeals, the panel said a woman who fell in a large pothole could get to the jury on her personal injury claim.

The trial court noted that plaintiff provided photographs, which showed that the conditions were sunny but that a building’s shadow was obscuring the pothole.

The Galliher panel framed the issue this way:

“[W]hether the absence of natural light and illumination from other lighting sources can cause an otherwise open and obvious condition to be hidden for purposes of premises liability.”

The panel (Judges E. Thomas Fitzgerald, David H. Sawyer and Peter D. O’Connell) concluded:

“Plaintiff presented evidence that a rather large, deep pothole existed in defendant’s parking lot, that plaintiff did not see the pothole even though she looked where she was walking, that the pothole could have been seen had there been adequate illumination, whether natural or artificial, and that at the time of the fall it was dark and there was no artificial light in the area. … [W]e agree with the trial court that plaintiff established a question of fact regarding whether the pothole was open and obvious.”

Last week, the Michigan Supreme Court denied leave to appeal on a 6-1 vote. There was no comment from the majority in its Feb. 8 order, but an obviously flabbergasted Justice Stephen Markman had plenty to say.

“Because I cannot imagine any more ‘open and obvious’ condition than a pothole in a driveway during daylight hours, I would reverse the Court of Appeals judgment and remand for entry of an order granting summary disposition to defendant. ‘[P]otholes in pavement are an “everyday occurrence” that ordinarily should be observed by a reasonably prudent person.’ Lugo v Ameritech Corp, Inc, 464 Mich 512, 523 (2001).”

Markman scolded his colleagues and shined his own light on the record.

“It is hard to know whether the majority is more persuaded here by the argument: (a) that a shadow cast by a hospital on a pothole constitutes a ‘special aspect,’ thus removing the pothole from the realm of the ‘open and obvious’; (b) that plaintiff’s testimony that she fell during ‘dark evening hours’ should be accorded credit despite the fact that 4:00 pm to 5:00 pm on the afternoon of March 1, 2003, the time of the accident, was a daylight hour; (c) that plaintiff’s simultaneous arguments that there were sunny conditions at the time of her accident, thereby creating a shadow over the pothole, and that there were ‘overcast’ conditions at the time of the accident with ‘heavy, dense clouds and fog and scattered snow showers,’ thereby obscuring the pothole, should be accepted as legitimate alternative arguments; or (d) that plaintiff’s assertion that she ‘did not discover the condition’ is somehow relevant to this Court’s analysis of premises liability cases.”

Markman said that the majority was pushing Lugo into the shadows.

“That any of these arguments have been found to be persuasive by this Court evidences why Lugo has become an increasingly ‘dead letter,’ to be replaced by no coherent alternative rule of law.”

So, should we light a candle for Lugo?