COA backpedals on published premises case

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 They recently vacated the decision and replaced it with an unpublished opinion.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.

We, and others, found the decision interesting, so we summarized the published case, blogged about it and wrote a news story about 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On April 17, the COA issued an unpublished opinion in Chesser. But unless one knew about the April 5 order, there was no solid indication of the unpublished opinion’s significance.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.

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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.

Extremely open and obvious

When Wayne Bailey’s teen-aged son ran away from home, Bailey called the Oakland County sheriff.

The sheriff’s department sent Deputy Dominick Spadafore to the scene. It was a cold December night. A narrow path shoveled through the snow led from Bailey’s driveway, up a step to the porch and then to Bailey’s front door.

Spadafore followed the path, went inside and talked things over with Bailey for a half-hour or so.

Okay, you can see this one coming from a mile away: Spadafore finished his conversation with Bailey and headed back to his patrol car. As Spadafore stepped from the porch to the step leading down from it, he slipped, fell and was injured.

The circuit court said the conditions were open and obvious and dismissed Spadafore’s premises liability claim.

The Michigan Court of Appeals affirmed for all the usual reasons: Spadafore saw the conditions as he made his way into Bailey’s home. The same conditions were present when he left. Spadafore admitted the weather conditions were such that snow would melt in sunlight and then freeze after sunset.

“Under these circumstances, a reasonable person in Spadafore’s position would have been able to discover the condition and take self-preserving precautions,” the COA panel ruled.

And there was one other circumstance that put the — ahem — icing — on the cake as far as dismissing the case based on Spadafore’s awareness of the conditions outside Bailey’s house.

During their half-hour talk, Bailey told Spadafore that his son ran away after being asked to shovel the driveway, step and porch, and to spread some salt.

The case is Spadafore v. Bailey.

The (unpublished) premise of ‘premises’: A building on the property

Michael Izenbaard hosted a bachelor party for Nathan Kadau. The two decided to take Michael’s ATV out for a spin with two other partygoers. Michael drove. Nathan stood in the vehicle’s bed.

All was going well until Izenbaard turned onto a dirt path owned by Consumers Energy. The ATV flipped. Kadau was injured.

Kadau sued Izenbaard and his wife. Izenbaard contacted his homeowners insurer, Fremont. Fremont named the Izenbaards and Kadau as defendants in a declaratory judgment action.

The policy provision at issue, in a nutshell, provided that an “insured location” is the insured’s “residence premises,” and also is “any premises used by you in connection with” the residence premises.

Fremont thought it was in good shape in the trial court. The accident occurred about 1,000 feet away from Izenbaard’s house on property owned by someone else. And the property can’t be a “premises” because there are no buildings on it.

The trial court said that coverage must be provided if the accident occurred on a “premises” used in connection with Izenbaard’s residence.

The trial court seized on the word “premises” and observed that courts and dictionaries have defined the word in various ways, and the policy didn’t define the word at all.

The court concluded that the term “premises” was ambiguous and must be construed against Fremont and in favor of coverage for Kadau’s accident.

Fremont fared better in the Court of Appeals.

We’ve got an issue of first impression, said the COA. There is no published Michigan case addressing the matter, the COA observed.

And, the unpublished Court of Appeals opinions and authority from other jurisdictions that the parties cited didn’t “specifically address the meaning of the term ‘premises,'” the COA explained in Fremont Ins. Co. v. Izenbaard, et al., an unpublished per curiam opinion.

The COA consulting several dictionaries. Definitions of “premises” contemplate buildings on land. A “structure” can be a building but it can also be other things, like the power lines and towers that ran along the dirt trail on which Kadau was injured.

Because “premises” is defined in terms of buildings and land, not structures and land, the dirt trail was not a premises even though there were structures on it, the COA concluded.

So, the COA ruled, Fremont is off the hook.

The decision is a decent exercise in construing a contract, but it left a loose end.

If there’s no published authority in Michigan, and nothing on point from other jurisdictions (in other words, no binding precedent) why continue to add to a growing body of persuasive authority on the issue?

Why not issue the decision for publication?

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.