Order Michigan Supreme Court
Lansing, Michigan
March 20, 2020 Bridget M. McCormack,
Chief Justice
159491 David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman
SUSAN BLACKWELL, Brian K. Zahra
Plaintiff-Appellee, Richard H. Bernstein
Elizabeth T. Clement
v SC: 159491 Megan K. Cavanagh,
Justices
COA: 328929
Oakland CC: 2014-141562-NI
DEAN FRANCHI and DEBRA FRANCHI,
Defendants-Appellants.
_________________________________________/
On order of the Court, the application for leave to appeal the March 14, 2019
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the question presented should be reviewed by this Court.
MCCORMACK, C.J. (concurring).
I concur in the majority’s decision to deny leave because I am not persuaded the
Court of Appeals’ opinion merits further review.
The plaintiff was a guest at a holiday party hosted by the defendants in their home
when she entered an unlit room and was injured from falling down an eight-inch step.
We asked the Court of Appeals to consider whether the defendants had a duty to warn the
plaintiff about the step. Blackwell v Franchi, 502 Mich 918 (2018). The majority
concluded there was a general duty to warn the plaintiff of a dangerous condition on their
property and that whether the defendants breached that duty by failing to warn about an
eight-inch step down in a dark room was a question for the jury to decide. Blackwell v
Franchi (On Remand), 327 Mich App 354, 357 (2019).
Our common law and the Restatement of Torts support the panel’s unremarkable
holding as to duty. As property owners, the defendants’ duty to licensees is well settled:
they have a duty to warn of conditions on their property that involve an unreasonable risk
of harm to such licensees when they should expect that their licensees will not discover
or realize the danger. Preston v Sleziak, 383 Mich 442, 453 (1970), citing Restatement
Torts, 2d, § 342, overruled in part on other grounds by Stitt v Holland Abundant Life
Fellowship, 462 Mich 591 (2000).
The Court of Appeals majority used the analytic framework of general and
specific standard of care rather than duty and breach. It held that “defendants had a
general duty to plaintiff as a licensee and that whether defendants violated that duty by
their specific actions or omissions is a question for the fact-finder.” Id. at 357. This
framework comes from our doctrine. In Moning v Alfono, 400 Mich 425 (1977), we said,
2
While the court decides questions of duty, general standard of care and
proximate cause, the jury decides whether there is cause in fact and the
specific standard of care: whether defendants’ conduct in the particular case
is below the general standard of care, including—unless the court is of the
opinion that all reasonable persons would agree or there is an overriding
legislatively or judicially declared public policy—whether in the particular
case the risk of harm created by the defendants’ conduct is or is not
reasonable. [Moning, 400 Mich at 438 (citation omitted).]
Moning defined “general standard of care” as “reasonable conduct ‘in light of the
apparent risk,’ ” differentiating it from duty, which it defined as a “legal obligation.”
Moning, 400 Mich at 438. Modern negligence doctrine (including our own) more
commonly uses the term “duty” to refer to the general standard of care. See, e.g., Riddle
v McLouth Steel Prods Corp, 440 Mich 85, 96 (1992) (explaining that “[o]nce a
defendant’s legal duty is established, the reasonableness of the defendant’s conduct under
that standard is generally a question for the jury”). And Moning’s reference to the
“specific standard of care,” or whether the defendants’ specific conduct met the “general
standard of care,” is more commonly referred to as “breach.” Moning, 400 Mich at 438,
443.1
The Court of Appeals majority held that the defendants had a general duty to warn
and that the specific standard of care (or whether the defendants’ actions fell below the
general standard of care) should be determined by a jury. Blackwell (On Remand), 327
Mich App at 358, citing Case v Consumers Power Co, 463 Mich 1, 7 (2000). In other
words, the defendants owed a duty to warn the plaintiff about a dangerous condition on
the property that they could expect she would not discover. Whether the defendants’
failure to warn of this particular condition was a breach of that duty, the panel also held,
was a question of fact. This was not clear error.
Whether the specific hazard here—an eight-inch step into a dark room—qualifies
as the kind of danger that should come with a warning is question about which reasonable
people could disagree. The dissent thinks this Court should decide that it is not a danger
that needs to come with a warning as a matter of law, citing Garrett v W S Butterfield
Theatres, 261 Mich 262 (1933) and Bertrand v Alan Ford, Inc, 449 Mich 606 (1995), for
support. In other words, the dissent believes a court should decide this particular
1
The Court of Appeals majority also cited Restatement Torts, 2d, § 342, p 210, to hold
that the defendants had a general duty of care to the plaintiff. Blackwell (On Remand),
327 Mich App at 357. The concurrence explained why that was correct, concluding that
“Restatement Torts, 2d, § 342 controls the duty analysis in this case and defines the
duty’s parameters.” Id. at 364 (GLEICHER, J., concurring); see also id. at 362-363 (citing
Preston, 383 Mich at 453; Stitt, 462 Mich 591; and MacDonald v PKT, Inc, 464 Mich
322, 335 (2001)).
3
question of breach as a matter of law. But neither case the dissent cites supports its view
that the fact-bound question here can be decided as a matter of law.
Garrett was an ordinary negligence case, and it was not decided on a motion for
summary disposition—instead, it was reversed after a jury verdict. Garrett, 261 Mich at
264. And the hazards have very little in common—in Garrett, the step was four and a
half inches (not eight) and the room the plaintiff stepped into was brightly lit. Id. at 263.2
Bertrand consolidated two cases after separate trial courts granted summary
disposition for defendants finding no genuine issues of material fact after plaintiffs
alleged injuries caused by falling down steps. Bertrand, 449 Mich at 609. In one, a
plaintiff fell down the second of two six- or seven-inch outdoor steps around noon, which
she alleged was only dangerous because she “ ‘just did not see it.’ ” Id. at 619. The
plaintiff thus did not present any facts supporting that the step posed an unreasonable risk
of harm, and this Court held that her claim was therefore properly dismissed by a judge
because no jury could have found otherwise. In the other, this Court held there was a
genuine issue of material fact because the step—which was clearly marked with yellow
paint across its entire top corner—may have created an unreasonable risk of harm
because of its placement near a vending machine and because of the way a nearby door
hinged. Id. at 624. In other words, we decided that the question of whether the failure to
warn of this particular step’s danger was a question for the fact-finder. Id. at 624-625.
The unique facts in each of those cases (the premises cases and the ordinary
negligence cases) and their holdings support the Court of Appeals’ holding here. The
plaintiff was injured when she entered a dark room and fell because she was surprised by
an eight-inch step down. The plaintiff thus pled facts showing a more unique danger than
an ordinary step encountered not in the dark. Whether the defendants should have
warned her about it—whether they breached their duty—is a question for the fact-finder.
The Court of Appeals applied settled law to facts to determine that while there is a
duty to warn a licensee of unreasonable dangers that are not discoverable upon casual
inspection, there is a question of fact whether the defendants’ failure to warn the plaintiff
about this particular hazard breached that duty. There is nothing incorrect or remarkable
about that holding.
VIVIANO, J., joins the statement of MCCORMACK, C.J.
2
Different facts result in different outcomes. Compare this case with another ordinary
negligence step case, Dahlem v Hackley Union Nat’l Bank & Trust Co, 361 Mich 609
(1960), in which this Court upheld a jury verdict in favor of a plaintiff who fell down a
five- or six-inch step in a restroom. There, a heavy door with a spring that made the door
close quickly apparently made the step dangerous enough to need a warning.
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MARKMAN, J. (dissenting).
I respectfully dissent. Plaintiff attended an informal Christmas party hosted by
defendants at their home. When plaintiff arrived, she was directed by one of the
defendants to place her purse in a small room adjoining the garage, commonly known as
a “mudroom.” Notwithstanding that the room was dark, and that there was a light switch
immediately adjacent to the entranceway, plaintiff proceeded into the room without
turning on the light or otherwise seeking to ascertain whether it was safe to enter.
Plaintiff lost her balance and fell when she set foot into the room, which was about eight
inches lower than the adjoining hallway.
Plaintiff sued defendants for her injuries on the basis of premises liability, arguing
that defendants breached their duty to “warn, advise and instruct persons regarding
potentially dangerous conditions on the premises.” Defendants moved for summary
disposition, which the trial court granted on the grounds that “reasonable minds could not
differ that the alleged condition here [the step] was open and obvious. Moreover, there
are no special aspects.” Plaintiff appealed, and the Court of Appeals, in a split decision,
reversed and remanded to the trial court for further proceedings, stating that “[t]he
determination of whether defendants had a duty to warn plaintiff of the drop-off depends
on how the conflicting testimony regarding whether the drop-off was open and obvious is
resolved.” Blackwell v Franchi, 318 Mich App 573, 579 (2017). Thereafter, defendants
sought leave to appeal in this Court and we directed the scheduling of oral argument on
whether to grant the application, instructing the parties to address “whether the appellants
owed a duty to warn the appellee of the condition on the land at issue . . . .” Blackwell v
Franchi, 501 Mich 903 (2017). Ultimately, however, a majority of the Court declined to
resolve this issue, deciding instead to remand to the Court of Appeals for consideration of
the same issue, specifically, “whether defendants owed plaintiff a duty to warn about the
step because the plaintiff did not know or have reason to know of the condition and the
risk involved, and it involved an unreasonable risk of harm . . . .” Blackwell v Franchi,
502 Mich 918, 920 (2018) (quotation marks and citations omitted). On remand, and
again in a split decision, the same panel reversed and remanded to the trial court for
further proceedings. Blackwell v Franchi (On Remand), 327 Mich App 354 (2019). The
court majority asserted that
a reasonable person could conclude that the specific standard of care in this
case included giving a warning to plaintiff and other licensees that upon
entering the mudroom they would encounter an eight-inch drop-off that was
not visible. Put in the terms of the remand order [from the Supreme Court],
reasonable persons could disagree on whether the alleged condition, i.e., the
nonvisible change in floor level, presented an unreasonable risk of
harm . . . . [Id. at 360-361.]
5
For the following reasons, I believe the Court of Appeals clearly erred in imposing a legal
duty upon defendants.
First, the Court of Appeals, in a conclusory fashion, determined that a duty existed
on defendant’s part, but it failed entirely to analyze the basis for this duty, as this Court
directed it to do. Subsequently, the court assessed the standard of care that accompanied
this asserted duty. Yet, duty and standard of care are considerably distinct concepts.
Moning v Alfono, 400 Mich 425, 436-437 (1977) (“While we all agree that the duty
question is solely for the court to decide, the specific standard of care is not part of that
question.”). The issue of legal duty “comprehends whether the defendant is under any
obligation [in the first place] to the plaintiff to avoid negligent conduct; it does not
include—where there is [such] an obligation—the nature of the obligation: the general
standard of care and the specific standard of care.” Id. at 437 (emphasis altered). Thus,
while Chief Justice MCCORMACK is correct that our “negligence doctrine . . . commonly
uses the term ‘duty’ to refer to the general standard of care,” ante at 2, that is only true to
the extent that the overall nature of the duty, if one indeed exists, is defined by the
general standard of care. That is, a court must first determine whether a duty exists, and
only if the court finds that it does must it then determine the overall nature of that duty,
i.e., the general standard of care. And Moning is not the only case to recognize the
unremarkable proposition that “duty” and “general standard of care” are distinct legal
questions. See, e.g., Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 500 (1988)
(“[T]he court decides the questions of duty and the general standard of care, and the jury
determines what constitutes reasonable care under the circumstances.”) (emphasis
added); Ray v Swager, 501 Mich 52, 63 n 13 (2017), quoting Moning, 400 Mich at 437
(“ ‘The elements of an action for negligence are (i) duty, (ii) general standard of care, (iii)
specific standard of care, (iv) cause in fact, (v) legal or proximate cause, and (vi)
damage.’ ”); Case v Consumers Power Co, 463 Mich 1, 6-7 (2000). Here, in determining
that the “specific standard of care . . . included giving a warning to plaintiff,” Blackwell
(On Remand), 327 Mich App at 360-361, the Court of Appeals focused upon “the nature
of [defendant’s] obligation,” Moning, 400 Mich at 437, which is a function of the
standard of care. At the same time, it neglected to focus upon the threshold inquiry--
whether defendants were “under any obligation [in the first place] to the plaintiff to avoid
negligent conduct,” id., which is a function of defendant’s legal duty.
Second, for reasons more fully explained in my dissent when this case was earlier
considered by the Court, see Blackwell, 502 Mich at 924 (MARKMAN, C.J., dissenting),
the Court of Appeals here misapplied our common law by imposing a legal duty upon
defendants. “[L]andowners are not insurers; that is, they are not charged with
guaranteeing the safety of every person who comes onto their land.” Hoffner v Lanctoe,
492 Mich 450, 459 (2012). And in Preston v Sleziak, 383 Mich 442, 453 (1970),
overruled in part on other grounds by Stitt v Holland Abundant Life Fellowship, 462
Mich 591 (2000), this Court adopted § 342 of the Second Restatement of Torts, which
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sets forth in particular the legal obligations of a social host (a “licensor”) to a social guest
(a “licensee”):
A possessor of land [licensor] is subject to liability for physical harm
caused to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the condition and
should realize that it involves an unreasonable risk of harm to such
licensees, and should expect that they will not discover or realize the
danger, and
(b) he fails to exercise reasonable care to make the condition safe, or
to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the
condition and the risk involved.
***
The possessor is entitled to expect that the licensee . . . will be on the
alert to discover conditions which involve risk to him. Indeed, it is not
necessary that the condition be such as the licensee would discover by the
use of his senses while upon the land. [2 Restatement Torts, 2d, § 342, pp
210, 212 comment f.]
Accordingly, the host is entitled to expect that their guests will be aware of their
surroundings and be able to recognize the existence of possible conditions that are not
themselves immediately visible. Specifically relevant to this case, “[d]ifferent floor
levels in private and public buildings, connected by steps, are so common that the
possibility of their presence is anticipated by prudent persons.” Garrett v W S Butterfield
Theatres, Inc, 261 Mich 262, 263 (1933). See also Bertrand v Alan Ford, Inc, 449 Mich
606, 614 (1995) (“[S]teps and differing floor levels [are] not ordinarily actionable unless
unique circumstances surrounding the area in issue made the situation unreasonably
dangerous.”).
Here, by allowing plaintiff to proceed to trial on the apparent assumption that she
could not have anticipated and would not have been alerted to the possibility of a
differing floor level in entering a darkened room from the adjoining hallway, the Court of
Appeals turns our common law on its head. Both common sense, and the common law,
provide that the commonplace circumstances that obtained here do not give rise to
liability on the part of a social host for injuries suffered by a guest where the guest has
failed both to anticipate such circumstances and, as in the instant case, to ascertain the
“lay of the land” by turning on the lights. See also Brusseau v Selmo, 286 Mich 171, 174
(1938) (“In the case at bar, plaintiff had notice of the darkened hallway. He could have
7
had more light either by turning on the ‘switch’ or leaving the entrance door wide open,
or by both. His failure to make use of appliances that would have lighted the stairway
precludes his recovery.”).
Third, bearing in mind that “the common law is but the accumulated expressions
of the various judicial tribunals in their efforts to ascertain what is right and just between
individuals in respect to private disputes,” Price v High Pointe Oil Co, Inc, 493 Mich
238, 242 (2013) (quotation marks and citations omitted), the Court of Appeals’ decision
is troubling in how it views the relationship between hosts and guests, veering away from
legal rules that have long, and correctly, reflected, I believe, the “actual social customs
and practices” of the people, Woodman v Kera LLC, 486 Mich 228, 277 (2010) (opinion
by MARKMAN, J.). If this Court disfavors these rules, they should be changed
straightforwardly so that the people need not guess what new rules are to prevail. By not
doing so, the certain effect of decisions such as today’s will be to incentivize litigation as
our law becomes increasingly confused and unsettled. In accordance with the Court of
Appeals opinion, hosts can no longer operate upon the assumption that guests will not
walk blindly into a darkened room without having exercised even a modicum of caution.
Must guests now be personally escorted throughout the home? Must warning signs be
installed apprising guests that they are encouraged to avail themselves of the benefits of
electric lighting? And, of course, darkened rooms and unexpected steps and flooring
levels are hardly the end to new lawsuits lying in wait. On what principled grounds
should a host expect a guest to act with greater judgment in a wide realm of similarly
looming household mishaps-- sink and shower faucets configured to dispense hot water;
ovens and stoves that heat up; throw rugs that are unstable; chairs capable of tipping
over? In place of a clear, settled, and workable common-law rule-- one premised upon
the principle that social guests must exercise personal responsibility in navigating
commonplace residential “risks” and “hazards”-- what is the new rule that will supplant
this?
It is true that “ ‘[t]he common-law does not consist of definite rules which are
absolute, fixed, and immutable like the statute law, but . . . is a flexible body of principles
. . . .’ ” Price, 493 Mich at 243, quoting Beech Grove Investment Co v Civil Rights
Comm, 380 Mich 405, 429 (1968). Nonetheless, the common law is composed of a set of
longstanding and settled rules that must be consistently and faithfully applied unless the
particular rule at issue is changed. See also Price, 493 Mich at 260 (“[W]hen it comes to
alteration of the common law, the traditional rule must prevail absent compelling reasons
for change. This approach ensures continuity and stability in the law.”). Perhaps the
greatest virtue of our common law is that it governs in a consistent and predictable
manner countless numbers of ordinary social interactions that arise each day, sparing
from the burdens of trial and the risks of financial liability citizens who have acted in a
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a reasonable and responsible and customary manner. Accordingly, I would reverse the
Court of Appeals judgment and reinstate the trial court’s grant of summary disposition in
favor of defendants.
ZAHRA, J., joins the statement of MARKMAN, J.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 20, 2020
a0317
Clerk