Litigation/Aug 28, 2012

“Open & Obvious” Revisited by Michigan Supreme Court

The Michigan Supreme Court recently revisited the “effectively unavoidable” exception to the open and obvious doctrine.  In what will certainly be a landmark and controversial decision, the Michigan Supreme Court narrowed the ability of persons injured in a slip and fall accident to recover from business property owners.  The case is Hoffner v Blue Cross and Blue Shield of Michigan, Michigan Supreme Court, Docket No. 142267 decided July 31, 2012.

The backdrop of this discussion starts with the general rule that a land owner has a duty of due care to protect invitees from unreasonable risk of harm caused by dangerous conditions on land.  The notable exception is for conditions that are “open and obvious”.  The law recognizes that a person has a duty to watch out for his own safety and wellbeing.  Whether a condition is open and obvious is to be judged by an objective standard.

In 2001, the Michigan Supreme Court in the Lugo case created an exception to the “open and obvious” defense where “special aspects” make a condition [1] unreasonably dangerous or the condition is [2] effectively unavoidable.  The Court noted that a condition is unreasonably dangerous when the condition presents an “extremely high risk of severe harm.”

In the years subsequent to Lugo appellate courts have weighed in on the “effectively unavoidable” condition in several published decisions.  The courts seemed to suggest that a business invitee was owed a greater duty by a business owner or if the injured party had a contractual relationship with the land owner.  The rationale was that a business land owner could not effectively argue that the injured party had a real choice in avoiding a hazard.  Some commentators suggested that a business land owner had a greater duty of care.

In Hoffner, the Michigan Supreme Court effectively decided that a business owner has no greater duty of care. To qualify under the “effectively unavoidable” risk, the injured person must essentially be required to confront an inescapable risk.  The Court stated that if the person has a “choice” the risk is not inescapable.   The Michigan Supreme Court stated that the person must be “compelled by extenuating circumstances with no choice but to traverse previously unknown risk” to qualify under the special aspects exception.  Unfortunately, the Court did not explain or define what extenuating circumstances might qualify.

How the Michigan appellate courts will interpret Hoffner and the “effectively unavoidable” exception is anyone’s guess.  However, trial courts will likely be more inclined to grant landowners summary disposition in slip and fall cases in the future.

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