Case to challenge open and obvious standard

Farmington Hills attorney Richard Bernstein has filed a lawsuit in Macomb County Circuit Court, challenging whether icy sidewalks at his client’s apartment complex were really open and obvious to his client. Even if they were obvious to all the other tenants, Bernstein’s client is blind.

Darrick Calhoun lives at Green Valley Apartments in Clinton Township. In January 2010, he slipped on the ice and was injured. Bernstein argues that the apartment complex owed a duty to his client to keep walkways free of hazards.

The suit seeks damages, but Bernstein also believes this case could serve to set precedent and challenge Michigan’s “Open and Obvious” standard – an objective guideline used by courts in injury cases, established by the Michigan Supreme Court. Under the standard, defendants are typically not held responsible for hazards to the public that can be visible, even if a plaintiff is disabled (in this case, unable to see the hazard).

“This standard established by the Michigan Supreme Court goes against hundreds of years of common law,” said Bernstein in a press release this morning. “It’s time for our courts to start acting fairly on behalf of injured and disabled citizens. Where this has become increasingly dangerous is that in Michigan, the courts are holding blind people to the same standards as those with sight in dangerous situations. This could be the case that finally turns the tide.”

The Michigan Court of Appeals took up that issue in 2003 in an unpublished opinion in Sidorowicz v. Chicken Shack Inc. Citing Lugo v. Ameritech Corp. Inc., the Court noted: “By focusing on the unsafe condition before the plaintiff is injured, the Lugo Court rejected any consideration of special aspects of the plaintiff. Applying this analytical approach to an ordinary pothole, the court reemphasized the focus on the condition and not the plaintiff and stated that an ‘ordinarily prudent’ person would typically be able to see the pothole and avoid it.”

The case has been assigned number 12-1937 to Judge Peter Maceroni.

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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.

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.

MSC reverses COA on Sajewski, black ice was open and obvious

In our May 24, 2010 issue, Carol Lundberg detailed the blow-by-blow from the oral arguments in Janson v Sajewski Funeral Home, a case in which challenged the blanket application of the “open & obvious” doctrine to black ice injuries.

The Court of Appeals had overturned the circuit court’s summary disposition order, holding that there was no “visible indicia of an otherwise invisible hazard,” thus, the black ice could not be open and obvious.

In a 4-3 order, the Michigan Supreme Court reversed the appeals court :

The Court of Appeals failed to adhere to the governing precedent established in Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 483 (2008), which renders alleged “black ice” conditions open and obvious when there are “indicia of a potentially hazardous condition,” including the “specific weather conditions present at the time of the plaintiff’s fall.” Here, the slip and fall occurred in winter, with temperatures at all times below freezing, snow present around the defendant’s premises, mist and light freezing rain falling earlier in the day, and light snow falling during the period prior to the plaintiff’s fall in the evening. These wintry conditions by their nature would have alerted an average user of ordinary intelligence to discover the danger upon casual inspection. Novotney v Burger King Corp (On Remand), 198 Mich App 470, 475 (1993). Moreover, the alleged condition did not have any special aspect. It was avoidable and not unreasonably dangerous. Joyce v Rubin, 241 Mich App 231, 243 (2002).

Chief Justice Marilyn Kelly dissented:

I would affirm the result reached by the Court of Appeals. Given the facts of this case, summary disposition was improper. Plaintiff raised a genuine issue of material fact regarding the open and obvious doctrine, and the issue should be submitted to a jury.1

Black ice is not open and obvious unless 1) there is evidence that it was visible on casual inspection by the person who fell or 2) other indicia of a potentially hazardous condition were shown to exist.2 In this case, plaintiff presented evidence that when he fell, 1) precipitation was light and had tapered off earlier in the day, 2) the roads leading to defendant’s premises were not icy, 3) defendant’s parking lot appeared not to be icy, 4) plaintiff had not encountered ice in defendant’s parking lot before his fall, and 5) a person employed by defendant who had been in the area saw no ice where plaintiff fell.

On the other hand, defendant presented evidence that 1) there was snow on the grass by the roads leading to defendant’s premises at the time plaintiff fell, 2) temperatures had been below freezing throughout the day, 3) it had rained and misted earlier in the day, and 4) defendant’s parking lot was generally slippery.

The trial court was required to evaluate this evidence in the light most favorable to the plaintiff.3 Given the conflicting evidence, a genuine issue of material fact existed. I agree with the Court of Appeals that summary disposition should not have been granted.

1 See, generally, Bertrand v Alan Ford, Inc, 449 Mich 606, 609-611 (1995).
2 Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 483 (2008).
3 See Wade v Dep’t of Corrections, 439 Mich 158, 162 (1992).

Justices Michael F. Cavanagh and Diane M. Hathaway voted to deny leave.

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HB 5744: ‘open and obvious’ would be comparative negligence issue only

The Michigan House Judiciary Committee will take up the slippery issue of the open-and-obvious doctrine with a Wednesday hearing on HB 5744.

The bill would amend MCL 600.2959 to make the open and obvious doctrine an element an issue of comparative fault only.

Under the open and obvious doctrine, in its current case-law formulation, premises liability cases must be dismissed as a matter of law when “an average person of ordinary intelligence” would discover the complained-of condition “upon casual inspection” and the condition “does not create an unreasonable risk of harm.”

The Michigan Supreme Court, in Lugo v. Ameritech Corp. 464 Mich. 512 (2001), ruled that the doctrine determines whether a premises owner even owes a duty of care.

Under HB 5744, sponsored by Rep. Andrew Kandrevas (D-Southgate):

whether a condition is open and obvious may be considered by the trier of fact only in assessing the degree of comparative fault, if any, and shall not be considered with respect to any other issue of law or fact, including duty.

For a many-a-truth-is-said-in-jest critique of the doctrine, see “Adventures in OpenandObvious Land,” by John A. Braden in the March 2007 Michigan Bar Journal.