Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 3, 2001
ODIS LUGO,
Plaintiff-Appellee,
v No. 112575
AMERITECH CORPORATION, INC.,
Defendant-Appellant.
____________________________________
BEFORE THE ENTIRE BENCH
TAYLOR, J.
This premises liability action arises from a fall in a
parking lot possessed by defendant. Plaintiff apparently fell
after stepping in a pothole in the parking lot. The circuit
court granted summary disposition in favor of defendant, but
the Court of Appeals reversed, rejecting defendant’s position
that plaintiff’s claim was barred by the “open and obvious
danger” doctrine. We reverse the judgment of the Court of
Appeals and reinstate the judgment of the circuit court. The
pothole was open and obvious, and plaintiff has not provided
evidence of special aspects of the condition to justify
imposing liability on defendant despite the open and obvious
nature of the danger.
I
Plaintiff was walking through a parking lot toward
defendant’s building to pay a telephone bill when she
apparently stepped in a pothole and fell. Plaintiff testified
at her deposition that she was not watching the ground and
that she was concentrating on a truck in the parking lot at
the time. However, she also testified that nothing would have
prevented her from seeing the pothole.
Defendant moved for summary disposition, claiming that
the pothole constituted an open and obvious danger from which
it had no duty to protect plaintiff.1 The circuit court
granted the motion, stating:
I am going to take the position that there is
no material question of fact. I think it is quite
clear that the lady was walking along without
paying proper attention to the circumstances where
she was walking, and there is a legal duty to look
1
The motion for summary disposition was filed under both
MCR 2.116(C)(8) and (C)(10). While not expressly stated, it
is clear that the trial court granted the motion under
subsection (C)(10) because the trial court’s discussion
involved evidence beyond the pleadings.
2
where you are walking. I can’t be anymore precise
than that.
The Court of Appeals reversed the grant of summary
disposition in a two-to-one decision. The Court of Appeals
majority concluded that the circuit court erred in holding
that plaintiff’s legal duty to look where she was walking
barred her claim. The Court stated that, under principles of
comparative negligence, a plaintiff’s negligence can only
reduce the amount of recovery, not eliminate altogether a
defendant’s liability. The Court also determined that the
open and obvious danger rule did not apply because there was
a genuine issue of material fact regarding whether defendant
should have expected that a pedestrian might be distracted by
the need to avoid a moving vehicle, or might even reasonably
step into the pothole to avoid such a vehicle.
We disagree with the holding of the Court of Appeals.
Further, while we do not embrace the reasoning of the circuit
court, we agree with its result.
II
The proper focus in this case is the extent of the open
and obvious doctrine in premises liability cases. In general,
a premises possessor owes a duty to an invitee to exercise
reasonable care to protect the invitee from an unreasonable
risk of harm caused by a dangerous condition on the land.
Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185
3
(1995). However, this duty does not generally encompass
removal of open and obvious dangers:
[W]here the dangers are known to the invitee
or are so obvious that the invitee might reasonably
be expected to discover them, an invitor owes no
duty to protect or warn the invitee unless he
should anticipate the harm despite knowledge of it
on behalf of the invitee. [Riddle v McLouth Steel
Products Corp, 440 Mich 85, 96; 485 NW2d 676
(1992).]
Accordingly, the open and obvious doctrine should not be
viewed as some type of “exception” to the duty generally owed
invitees, but rather as an integral part of the definition of
that duty. This Court further elaborated in Bertrand, supra
at 611:
When §§ 343 and 343A [of the Restatement
Torts, 2d] are read together, the rule generated is
that if the particular activity or condition
creates a risk of harm only because the invitee
does not discover the condition or realize its
danger, then the open and obvious doctrine will cut
off liability if the invitee should have discovered
the condition and realized its danger. On the
other hand, if the risk of harm remains
unreasonable, despite its obviousness or despite
knowledge of it by the invitee, then the
circumstances may be such that the invitor is
required to undertake reasonable precautions.
In sum, the general rule is that a premises possessor is not
required to protect an invitee from open and obvious dangers,
but, if special aspects of a condition make even an open and
obvious risk unreasonably dangerous, the premises possessor
has a duty to undertake reasonable precautions to protect
invitees from that risk.
4
The following language from Bertrand provides a more
concrete discussion of these abstract concepts:
With the axiom being that the duty is to
protect invitees from unreasonable risks of harm,
the underlying principle is that even though
invitors have a duty to exercise reasonable care in
protecting their invitees, they are not absolute
insurers of the safety of their invitees.
Quinlivan [v The Great Atlantic & Pacific Tea Co,
Inc, 395 Mich 244, 261; 235 NW2d 732 (1975).]
Consequently, because the danger of tripping and
falling on a step is generally open and obvious,
the failure to warn theory cannot establish
liability. However, there may be special aspects
of these particular steps that make the risk of
harm unreasonable, and, accordingly, a failure to
remedy the dangerous condition may be found to have
breached the duty to keep the premises reasonably
safe. [Bertrand, supra at 614.]
Consistent with Bertrand, we conclude that, with regard to
open and obvious dangers, the critical question is whether
there is evidence that creates a genuine issue of material
fact regarding whether there are truly “special aspects” of
the open and obvious condition that differentiate the risk
from typical open and obvious risks so as to create an
unreasonable risk of harm, i.e., whether the “special aspect”
of the condition should prevail in imposing liability upon the
defendant or the openness and obviousness of the condition
should prevail in barring liability.
An illustration of such a situation might involve, for
example, a commercial building with only one exit for the
general public where the floor is covered with standing water.
5
While the condition is open and obvious, a customer wishing to
exit the store must leave the store through the water. In
other words, the open and obvious condition is effectively
unavoidable. Similarly, an open and obvious condition might
be unreasonably dangerous because of special aspects that
impose an unreasonably high risk of severe harm. To use
another example, consider an unguarded thirty foot deep pit in
the middle of a parking lot. The condition might well be open
and obvious, and one would likely be capable of avoiding the
danger. Nevertheless, this situation would present such a
substantial risk of death or severe injury to one who fell in
the pit that it would be unreasonably dangerous to maintain
the condition, at least absent reasonable warnings or other
remedial measures being taken.2 In sum, only those special
2
In considering whether a condition presents such a
uniquely dangerous potential for severe harm as to constitute
a “special aspect” and to avoid barring liability in the
ordinary manner of an open and obvious danger, it is important
to maintain the proper perspective, which is to consider the
risk posed by the condition a priori, that is, before the
incident involved in a particular case. It would, for
example, be inappropriate to conclude in a retrospective
fashion that merely because a particular plaintiff, in fact,
suffered harm or even severe harm, that the condition at issue
in a case posed a uniquely high risk of severe harm. This is
because a plaintiff may suffer a more or less severe injury
because of idiosyncratic reasons, such as having a particular
susceptibility to injury or engaging in unforeseeable conduct,
that are immaterial to whether an open and obvious danger is
nevertheless unreasonably dangerous. Thus, contrary to the
possible implication of Justice Weaver’s concurrence, this
opinion does not allow the imposition of liability merely
(continued...)
6
2
(...continued)
because a particular open and obvious condition has some
potential for severe harm. Obviously, the mere ability to
imagine that a condition could result in severe harm under
highly unlikely circumstances does not mean that such harm is
reasonably foreseeable. However, we believe that it would be
unreasonable for us to fail to recognize that unusual open and
obvious conditions could exist that are unreasonably dangerous
because they present an extremely high risk of severe harm to
an invitee who fails to avoid the risk in circumstances where
there is no sensible reason for such an inordinate risk of
severe harm to be presented.
We consider it unnecessary to express a view as to how
Singerman v Municipal Service Bureau, Inc, 455 Mich 135; 565
NW2d 383 (1997), should have been decided. Nevertheless, we
do not perceive why Justice Weaver concludes that this opinion
would seem to require that “the question whether the risk of
harm caused by the lighting defect [in Singerman] was
unreasonable despite its obviousness would be for the jury.”
Post at 3-4. We express no view on that question. Further,
as reflected in the result of the present case, this opinion
does not preclude a grant of summary disposition in favor of
a defendant in a premises liability action where no reasonable
person could conclude that the open and obvious condition at
issue involved special aspects that presented an unreasonable
risk to invitees.
Finally, to get to the heart of this, what concerns us
about Justice Weaver’s position is that it might be taken to
mean no matter what the open and obvious peril, even a thirty
foot-deep unguarded or unmarked pothole, if it was open and
obvious, no tort claim would lie. While we imagine that
Justice Weaver would deny that such a result would follow from
her position, she seems to reject the idea “that the degree of
potential harm is relevant to whether the risk of harm posed
by a condition remains unreasonable despite its obviousness.”
Post at 2. Yet, it appears obvious to us that the degree of
potential harm from an open and obvious condition may, in some
unusual circumstances, be the key factor that makes such a
condition unreasonably dangerous. To consider our admittedly
extreme example, while it is reasonable to expect invitees to
avoid common potholes, that does not mean it is reasonable to
leave a gaping hole in a parking lot even though the
difference in the degree of harm likely to follow from an
(continued...)
7
aspects that give rise to a uniquely high likelihood of harm
or severity of harm if the risk is not avoided will serve to
remove that condition from the open and obvious danger
doctrine.3
However, typical open and obvious dangers (such as
ordinary potholes in a parking lot) do not give rise to these
special aspects.4 Using a common pothole as an example, the
condition is open and obvious and, thus, cannot form the basis
of liability against a premises possessor. The condition does
not involve an especially high likelihood of injury. Indeed,
an “ordinarily prudent” person, Bertrand, supra at 615, would
typically be able to see the pothole and avoid it. Further,
there is little risk of severe harm. Unlike falling an
extended distance, it cannot be expected that a typical person
tripping on a pothole and falling to the ground would suffer
2
(...continued)
invitee’s failure to avoid the hazard is the only material
difference between the two situations.
3
Contrary to the indication of Justice Weaver’s
concurrence, post at 1, our conclusion regarding the special
aspects of an open and obvious condition that are required in
order to remove such a condition from the scope of the open
and obvious doctrine is not mere “dicta.” On the contrary,
the lack of such special aspects in the present case forms the
basis of our holding that defendant was entitled to a grant of
summary disposition in its favor.
4
Indeed, the result that we reach in the present case
underscores that vitality of the open and obvious doctrine as
a bar to liability in cases involving typical open and obvious
conditions such as the common pothole at issue in this case.
8
severe injury.
III
Applying these general principles to the case at hand, we
conclude that defendant was entitled to summary disposition
under MCR 2.116(C)(10), which provides for summary disposition
when “[e]xcept as to the amount of damages, there is no
genuine issue as to any material fact, and the moving party is
entitled to judgment or partial judgment as a matter of law.”
Further, the party opposing a motion for summary disposition
(in this case plaintiff) is required by MCR 2.116(G)(4) to
“set forth specific facts showing that there is a genuine
issue for trial” with regard to the issues raised in the
summary disposition motion. In this case, the disputed issue
was whether plaintiff’s claim was barred by the open and
obvious danger doctrine.
The evidence submitted to the trial court allows for no
genuine issue of material fact with respect to whether
plaintiff’s claim was barred by the open and obvious danger
doctrine. This case simply involved a common pothole in a
parking lot. While plaintiff argues that the pothole was
filled with debris, the evidence presented to the trial court
simply does not allow a reasonable inference that the pothole
was obscured by debris at the time of plaintiff’s fall.
9
Indeed, plaintiff’s testimony at her deposition was that she
did not see the pothole because she “wasn’t looking down,” not
because of any debris obscuring the pothole.
The present case is substantially similar to Maurer v
Oakland Co Parks & Recreation Dep’t, one of the two
consolidated cases decided by this Court in Bertrand. In
Maurer, the plaintiff slipped and fell on an “unmarked cement
step” as she was leaving a rest room area at a park. The
plaintiff alleged that the defendant was negligent for not
marking the step with a contrasting color or warning of the
existence of the step. Bertrand, supra, at 618. Similar to
plaintiff in the present case tripping over the pothole
because she did not see it, the plaintiff in Maurer testified
at her deposition that she “just didn’t see the step there.”
Id. at 619.
The Bertrand Court held that the defendant in Maurer was
entitled to summary disposition on the basis of the open and
obvious danger doctrine because the plaintiff had shown
nothing unusual about the step:
The plaintiff’s only asserted basis for
finding that the step was dangerous was that she
did not see it. We hold that the plaintiff has
failed to establish anything unusual about the step
. . . . Because the plaintiff has not presented
any facts that the step posed an unreasonable risk
of harm, the trial court properly granted summary
disposition. [Id. at 621 (emphasis in the
original).]
10
In sum, the plaintiff in Maurer could not avoid summary
disposition because the evidence showed only that she tripped
and fell on a common step that she failed to notice.5
Likewise, the evidence in the present case reflects that
plaintiff tripped and fell on a common pothole because she
failed to notice it. While plaintiff argues that moving
vehicles in the parking lot were a distraction, there is
certainly nothing “unusual” about vehicles being driven in a
parking lot, and, accordingly, this is not a factor that
removes this case from the open and obvious danger doctrine.
In Bertrand, this Court stated:
[B]ecause steps are the type of everyday
occurrence that people encounter, under most
circumstances, a reasonably prudent person will
look where he is going, will observe the steps, and
will take appropriate care for his own safety.
Under ordinary circumstances, the overriding public
policy of encouraging people to take reasonable
care for their own safety precludes imposing a duty
on the possessor of land to make ordinary steps
“foolproof.” Therefore, the risk of harm is not
unreasonable. [Id. at 616-617.]
Likewise, potholes in pavement are an “everyday occurrence”
that ordinarily should be observed by a reasonably prudent
5
This should not be understood as meaning that the claim
of the plaintiff in Maurer was barred because she did not use
appropriate care for her own safety. The level of care used
by a particular plaintiff is irrelevant to whether the
condition created or allowed to continue by a premises
possessor is unreasonably dangerous. Rather, the important
point is that the plaintiff in Maurer offered nothing to
distinguish the steps at issue from ordinary steps in terms of
the danger that they presented.
11
person. Accordingly, in light of plaintiff’s failure to show
special aspects of the pothole at issue, it did not pose an
unreasonable risk to her.
While we agree with the result reached by the trial
court, we consider it important to disapprove part of its
apparent rationale. The trial court’s remarks indicate that
it may have granted summary disposition in favor of defendant
because the plaintiff “was walking along without paying proper
attention to the circumstances where she was walking.”
However, in resolving an issue regarding the open and obvious
doctrine, the question is whether the condition of the
premises at issue was open and obvious and, if so, whether
there were special aspects of the situation that nevertheless
made it unreasonably dangerous. In a situation where a
plaintiff was injured as a result of a risk that was truly
outside the open and obvious doctrine and that posed an
unreasonable risk of harm, the fact that the plaintiff was
also negligent would not bar a cause of action. This is
because Michigan follows the rule of comparative negligence.
Under comparative negligence, where both the plaintiff and the
defendant are culpable of negligence with regard to the
plaintiff’s injury, this reduces the amount of damages the
plaintiff may recover but does not preclude recovery
altogether. See, e.g., Riddle, supra at 98 (under comparative
12
negligence, “a defendant may present evidence of a plaintiff’s
negligence in order to reduce liability”).
Accordingly, it is important for courts in deciding
summary disposition motions by premises possessors in “open
and obvious” cases to focus on the objective nature of the
condition of the premises at issue, not on the subjective
degree of care used by the plaintiff. In the present case,
there was no evidence of special aspects that made the open
and obvious pothole unreasonably dangerous.
IV
There is much agreement between our opinion and the
concurrence authored by Justice Cavanagh. We agree “that a
premises possessor is not generally required to protect an
invitee from open and obvious dangers.” Post at 2. We also
agree that, consistent with the 2 Restatement Torts, 2d,
§§ 343 and 343A, circumstances may arise in which an open and
obvious condition is nevertheless unreasonably dangerous so as
to give rise to a duty upon a premises possessor to in some
manner remove or otherwise appropriately protect invitees
against the danger. We further agree that any comparative
negligence by an invitee is irrelevant to whether a premises
possessor has breached its duty to that invitee in connection
with an open and obvious danger because an invitee’s
comparative negligence can only serve to reduce, not
13
eliminate, the extent of liability.
As we understand it, Justice Cavanagh’s basic position is
that the inquiry into whether an open and obvious condition is
unreasonably dangerous should not be focused on whether that
condition involves special aspects that distinguish it from
ordinary open and obvious conditions. We disagree because we
believe that this “special aspects” inquiry serves to
concretely focus trial courts on the showing that must be made
in evaluating motions for summary disposition in this context.
In our view, this approach is consistent with § 343A of the
Restatement, which indicates that a possessor of land is only
liable to invitees for harm caused by an obvious condition if
the possessor should “anticipate the harm.” Post at 5.
Simply put, there must be something out of the ordinary, in
other words, special, about a particular open and obvious
danger in order for a premises possessor to be expected to
anticipate harm from that condition. Indeed, it seems obvious
to us that if an open and obvious condition lacks some type of
special aspect regarding the likelihood or severity of harm
that it presents, it is not unreasonably dangerous. We cannot
imagine an open and obvious condition that is unreasonably
dangerous, but lacks special aspects making it so.6
6
Justice Cavanagh states that “[a] more correct
statement of the law [in Bertrand, supra] would have been to
(continued...)
14
Justice Cavanagh agrees with our conclusion that
plaintiff has failed to establish that the pothole in the
present case “presented an unreasonable risk of harm.” Post
at 21. In this opinion, we explain concretely why that is so.
It is because the evidence proffered by plaintiff establishes
nothing more than the existence of a common, ordinary pothole.
Because of the great variety of circumstances in which
premises liability claims may be raised, it may be practically
impossible to demarcate the extent of a premises possessor’s
duties with great precision. Nevertheless, we believe that
our approach, focusing on the existence or absence of special
aspects of an open and obvious danger, will guide the trial
courts in considering whether particular open and obvious
conditions posed an unreasonable risk of harm better than
would be the case without this further exposition of the open
and obvious doctrine.
Finally, in response to Justice Weaver’s concurrence,
this opinion does not require a premises owner or possessor to
be an “insurer of the safety of invitees.” Post at 5.
Indeed, our resolution of the present case in favor of
6
(...continued)
say that the duty to exercise reasonable care is not breached
in cases involving ordinary steps.” Post at 18. We agree
that ordinary steps cannot be considered to present an
unreasonably dangerous risk of harm. This is consistent with
our focus on the existence or absence of special aspects of an
open and obvious condition.
15
defendant would belie any such a claim. However, a premises
possessor does have a duty to undertake reasonable efforts to
make its premises reasonably safe for its invitees. This
opinion attempts to provide a further explanation of the scope
of that duty.
For the above reasons, we reverse the judgment of the
Court of Appeals and reinstate the judgment of the circuit
court.
CORRIGAN , C.J., and YOUNG and MARKMAN , JJ., concurred with
TAYLOR , J.
16
S T A T E O F M I C H I G A N
SUPREME COURT
ODIS LUGO,
Plaintiff-Appellee,
v No. 112575
AMERITECH CORPORATION, INC.,
Defendant-Appellant.
_____________________________
CAVANAGH, J. (concurring).
This premises liability suit arises out of the
plaintiff’s claim that she fell and injured herself after
stepping into a pothole in the defendant’s parking lot. The
circuit court granted defendant summary disposition, and the
Court of Appeals reversed. The majority now reverses the
Court of Appeals, and holds that (1) the pothole was open and
obvious, and (2) there is no justification for imposing
liability on the defendant despite the open and obvious nature
of the danger presented by the pothole because the plaintiff
failed to provide evidence that the pothole had “special
aspects.”
I join the majority’s decision to reverse the Court of
Appeals and reinstate the judgment of the circuit court
because I agree that the plaintiff failed to establish a basis
for imposing liability despite the open and obvious nature of
the pothole. I also join the majority’s statement that the
trial court erred in focusing on the plaintiff’s subjective
degree of fault. However, I write separately to express my
disagreement with the majority’s “special aspects” analysis.
I would instead prefer to work with the premises liability law
already offered by this Court and to adopt an approach more
true to the Restatement.
I. The Majority Approach
The majority offers an approach to open and obvious
danger cases that focuses on the special aspects of a
condition:
In sum, the general rule is that a premises
possessor is not required to protect an invitee
from open and obvious dangers, but, if special
aspects of a condition make even an open and
obvious risk unreasonably dangerous, the premises
possessor has a duty to undertake reasonable
precautions to protect invitees from that risk.
[Slip op at 5.]
I agree with the majority that a premises possessor is not
generally required to protect an invitee from open and obvious
dangers. Also, I agree with the majority that there are
exceptions to the general rule. However, I disagree with the
majority that the issue can be simply summarized in terms of
2
whether “special aspects” of a condition make the risk of harm
unreasonably dangerous. Instead, the Court must make two
inquiries: (1) whether the possessor may be held liable
pursuant to the terms of 2 Restatement Torts, 2d, § 343, and
(2) whether liability is suspended under § 343A. In order to
determine whether liability should be imposed, a thorough
consideration of the historical underpinnings of the open and
obvious danger doctrine is in order. I offer such an analysis
in this opinion, with the hope that the majority opinion will
not be read as limiting the scope of the doctrine.
II. The Open and Obvious Danger Doctrine and the Restatement
Approach
Recovery has been barred in premises liability cases
involving open and obvious dangers for at least a century.
See, e.g., Caniff v Blanchard Navigation Co, 66 Mich 638; 33
NW 744 (1887). The Restatement approach has been key to
Michigan’s open and obvious danger law for almost as long.
The first explicit reference incorporating the Restatement
approach is Goodman v Theatre Parking, Inc, 286 Mich 80; 281
NW 545 (1938), where the plaintiff sought damages for a
sprained ankle sustained after stepping on a cinder in the
defendant's parking lot.1 Since that time, the Restatement
1
At the time, 2 Restatement Torts, Negligence, under
title of business visitors, § 343, set forth the following
standard of care:
(continued...)
3
has been cited repeatedly, even after its text was changed.
See Quinliven v Great Atlantic & Pacific Tea Co, Inc, 395 Mich
244; 235 NW2d 732 (1975)(quoting the Restatement with
approval). It is safe to say that the current version of
Restatement §§ 343 and 343A form the basis for Michigan’s open
and obvious decisional law.2
A. What the Restatement says
The applicable sections of the Restatement provide as
follows:
§ 343. DANGEROUS CONDITIONS KNOWN TO OR
DISCOVERABLE BY POSSESSOR
A possessor of land is subject to liability
for physical harm caused to his invitees by a
condition on the land if, but only if, he
(a) knows or by the exercise of reasonable
care would discover the condition, and should
realize that it involves an unreasonable risk of
harm to such invitees, and
(b) should expect that they will not discover
or realize the danger, or will fail to protect
themselves against it, and
(c) fails to exercise reasonable care to
1
(...continued)
A possessor of land is subject to liability
for bodily harm caused to business visitors by a
natural or artificial condition thereon if, but
only if, he (a) knows, or by the exercise of
reasonable care could discover, the condition
which, if known to him, he should realize as
involving an unreasonable risk to them. [Goodman at
82.]
2
Section 343A was added to the Restatement after § 343,
but the two sections are to be read together, as is indicated
by comment (a) to § 343.
4
protect them against the danger.
§ 343A. KNOWN OR OBVIOUS DANGERS
(1) A possessor of land is not liable to his
invitees for physical harm caused to them by any
activity or condition on the land whose danger is
known or obvious to them, unless the possessor
should anticipate the harm despite such knowledge
or obviousness.
(2) In determining whether the possessor
should anticipate harm from a known or obvious
danger, the fact that the invitee is entitled to
make use of public land, or of the facilities of a
public utility, is a factor of importance
indicating that the harm should be anticipated.
I read § 343 as providing a standard of care to be
applied in cases where there exists a dangerous condition on
the premises that the possessor knows about or could
reasonably discover.3 If the possessor is charged with
knowledge of the condition or the court finds that he could
reasonably discover the condition, he can be liable if (1) he
fails to exercise reasonable care to protect his invitees even
though the possessor should realize that the condition poses
an unreasonable risk of harm to an invitee, and (2) he should
realize that an invitee will either fail to discover the
condition, or fail to appreciate the danger of the condition
if it is discovered, or fail to protect himself from the
danger even if discovered or realized.
3
As will be explained, however, the Court has not
provided a uniform interpretation of the Restatement, and
there has been some debate about whether the Restatement
discusses duty or standard of care.
5
More instructive is the text of comment (a) to § 343,
which provides that “This section should be read together with
§ 343A, which deals with the effect of the fact that the
condition is known to the invitee, or is obvious to him . . .
. In the interest of brevity the limitation is not repeated
in this section.” Comment (a) is helpful in two ways: it
illustrates that hidden or unknown conditions can be
distinguished from known or obvious conditions and that § 343A
is a rule designed to limit liability, whereas § 343 is
designed to allow for the imposition of liability.
It is important to realize that the comments to § 343A
begin by saying, “The rule stated in this subsection applies
to all persons who enter or remain on land in the capacity of
invitees, as defined by § 332.” (Emphasis added.) Thus,
though §§ 343 and 343A must be read together, I believe that
§ 343A needs to be read as its own rule, and not as an
exception to § 343. The general rule provided by § 343A is
that a possessor of land is not liable to his invitees for
injuries caused by activities or conditions on the land whose
danger is known or obvious. The second clause of subsection
(1) of § 343A provides the exception to this rule: if the
possessor of land should anticipate the harm to the invitee
despite the invitee’s knowledge or the condition’s
obviousness, the possessor will not be relieved of liability
under the general open and obvious rule.
6
B. Where does the Restatement come into play?
The second imperative point to understand about
Restatement §§ 343 and 343A is that they refer to the
imposition of liability; they do not discuss whether a duty
exists. In fact, one of the very first cases incorporating
the Restatement into our jurisprudence stated, “2 Restatement
of the Law of Torts, Negligence, under title of ‘business
visitors,’ § 343, sets forth the following standard of care
which we believe is applicable here . . . .” Nash v Lewis,
352 Mich 488, 492; 90 NW2d 480 (1958). In my view, § 343 and
§ 343A assume that a duty has been imposed by virtue of the
possessor and invitee relationship, but that liability
nonetheless can be limited under certain circumstances.
Unfortunately, the Restatement does not explicitly lay
out the standard of care, it simply says that a possessor of
land “is subject to liability” in § 343 cases, or “is not
liable” in § 343A cases. Thus, the Restatement only
explicitly provides a liability shield. However, the
Restatement’s use of phrases such as “should expect,”
“unreasonable risk,” and “reasonable care” indicate that a
premises possessor must protect his invitees “from an
unreasonable risk of harm caused by a dangerous condition of
the land that the landowner knows or should know the invitees
will not discover, realize, or protect themselves against.”
Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185
7
(1995).
Once this premises liability rule is plugged into the
language of the Restatement, we would be left with the
following rule in known or obvious danger cases: A possessor
owes his invitees a duty of reasonable care in order to
protect them from an unreasonable risk of harm caused by a
dangerous condition on the land; he breaches that duty by
failing to protect his invitees from harm, though he should
have anticipated that harm would result from the known or
obvious danger despite the condition’s obviousness or the
invitee’s knowledge of the danger. When the invitor breaches
his duty of care in this manner, he can be subject to
liability for physical harm caused to his invitees by a
condition on the land if the conditions of § 343 are met.
A second inquiry would then be whether, despite the
possibility that liability could normally be imposed against
the possessor because he has failed to reasonably protect his
invitee, the possessor can nonetheless avoid liability on the
basis that the danger was known or obvious to the invitee.
When the danger is obvious, or when the invitee knows of it,
§ 343A of the Restatement would suspend liability unless the
possessor should anticipate harm flowing from the condition
despite the invitee’s knowledge of the condition or the
obviousness of the condition.
8
C. How the cases confuse the issue, and what contributory
negligence has to do with it
Unfortunately, the Restatement approach can be somewhat
difficult to apply because it bears some similarity to the
contributory negligence doctrine. I believe that these
similarities have caused Michigan’s case law on the open and
obvious doctrine to be somewhat imprecise.
The potential for confusion stems from the fact that, in
both contributory negligence and in open and obvious cases,
liability can be suspended because of action (or inaction) on
the part of the plaintiff. In both instances, a particular
defendant may be absolved of liability for negligence even
though he owes a duty to the plaintiff. Despite that
similarity, though, there is a distinct difference between the
open and obvious rule and the rule of contributory negligence.
In contributory negligence cases, a defendant is absolved of
liability even where he acts completely negligently.
Contributory negligence, a defensive mechanism, is based on
the policy that damages are not recoverable where the
plaintiff and the defendant are both partially at fault. The
open and obvious danger doctrine, on the other hand, relies on
the standard of care. Where the defendant fails to protect
his invitees from an unreasonable risk of harm posed by a
foreseeable danger, he will be liable. If the defendant is
absolved from liability under the open and obvious doctrine,
9
the reason for the absolution is not that the plaintiff acted
negligently. Instead, the reason is that the open and obvious
danger of the condition is a “circumstance” under the standard
of care. The possessor will be deemed to have acted
reasonably under those circumstances.
The idea that defendants should prevail where the
plaintiff fails to heed an open and obvious danger has been
around for a while, but, unfortunately, the focus on the
standard of care has been lost in some instances. The reason
is partially that the open and obvious doctrine predates
Michigan’s shift from contributory negligence to comparative
negligence. In the era of contributory negligence, failure to
precisely separate concepts of duty, liability, and standard
of care bore little consequence because plaintiffs could lose
simply by virtue of their own negligence. As Justice Levin
pointed out in dissent in Riddle v McLouth Steel Products, 440
Mich 85; 485 NW2d 676 (1992), these contributory negligence
cases sometimes expressed their holdings in terms of a “no
duty” rule: that a possessor owes no duty to protect his
invitees from open and obvious dangers.
For example, in Caniff, the plaintiff sought to recover
damages for an injury sustained when he fell through a
hatchway left open on the deck of a ship. The Court denied
recovery. The primary reasons for the denial were that (1)
the plaintiff was an experienced sailor who was familiar with
10
ships and who knew that hatchways were often left open while
the ship was at port and, therefore, had reason to expect that
the hatchway he fell into would have been left open, (2) that
the plaintiff failed to exercise due care when he walked
carelessly forward in the dark, (3) that the plaintiff’s
actions constituted inexcusable negligence, and (4) that the
general premises liability rule would not apply in cases where
the plaintiff knows or should know that danger exists because
it is upon the plaintiff to avoid the peril. In other words,
reduced to its simplest terms, Caniff held that the plaintiff
should have known better and should have looked where he was
going.
In Garrett v WS Butterfield Theatres, Inc, 261 Mich 262;
246 NW 57 (1933), the plaintiff was injured while entering a
restroom. The entryway required patrons to step down into the
restroom. Plaintiff failed to see the step, and fell upon
entry. The Court stated that “[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. The construction is not negligent unless,
by its character, location, or surrounding circumstances, a
reasonably prudent person would not be likely to expect a step
or see it.” Id. at 263-264. The Court denied recovery,
stating that the defendant was not guilty of negligence
because it owed no duty to “prevent careless persons from
11
hurting themselves.” Id. at 264.
Although these two early cases cited by the parties
addressed the liability issue by stating that no duty was owed
by the defendant to the plaintiff, it seems to me that the
reason for the holding in both cases was that the plaintiff
should have expected and heeded the danger. I posit that
contributory negligence principles actually would require a
two-step inquiry: (1) would the premises owner normally owe a
duty to the plaintiff to keep the premises reasonably safe,
and (2) would the premises owner be relieved of liability
because of the affirmative defense of contributory negligence?
In these cases, in order to bar recovery on the basis of
the plaintiff’s actions, the Court would have had to conclude
either that there was no duty to keep the premises reasonably
safe, that the premises were reasonably safe, or that the duty
to keep the premises reasonably safe was offset by the
plaintiff’s duty to care for his own safety. If the court
were to find that no duty existed, there would be no prima
facie case of negligence. Were the court to find that the
premises were reasonably safe, there would be no breach of the
standard of care. If it were the plaintiff’s own failure to
protect himself that barred liability despite an unreasonable
risk, liability would have been suspended under the
contributory negligence doctrine.
12
Two later cases seemed to recognize that there is a
difference between the duty owed and the effect of
contributory negligence on that duty. In Ackerberg v Muskegon
Osteopathic Hosp, 366 Mich 596; 115 NW2d 290 (1962), the
plaintiff sued the defendant for injuries sustained when he
fell from a platform located outside a hospital entrance. The
trial court denied recovery on two grounds. First, it held
that the plaintiff failed to show a duty or its breach.
Second, it held that the plaintiff failed to exercise
reasonable care for his own safety and that the claim was
barred because of the plaintiff’s contributory negligence.
The language used by the Ackerberg trial court seemed to be in
line with Caniff and Garrett. However, this Court reversed,
stating that jury questions existed regarding both whether the
defendant hospital had a duty to construct a guardrail and
whether the plaintiff was guilty of contributory negligence.
Another relevant case is Quinliven, in which the
plaintiff slipped and fell on some ice in the defendant’s
parking lot. This Court held that the defendant owed a duty
to the plaintiff to use reasonable care to protect against the
hazards arising from the accumulation of ice and snow. The
case emphasized that business invitors owe invitees a duty to
“be reasonably sure that [the invitor] is not inviting [the
invitee] into danger, and to that end, he must exercise
ordinary care and prudence to render the premises reasonably
13
safe for the visit.” Quinliven at 251 (quoting Blakely v
White Star Line, 154 Mich 635, 637; 118 NW 482 (1908)).
Quinliven overruled prior case law that said no duty was owed
in cases involving the natural accumulation of ice and snow.
Yet, the Court also noted that the plaintiff’s actions could
be considered in the context of contributory negligence. In
my view, Quinliven correctly determined the defendant’s duty
by referencing the relationship between the parties as well as
the danger presented, and then viewed the plaintiff’s
negligence as affecting liability rather than alleviating the
duty owed.
In Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511
(1979), this Court made the move from contributory to
comparative negligence. If a plaintiff’s negligence is
considered in terms of liability rather than in terms of duty,
the move would not necessarily have a huge effect on the
scheme of analysis applied in premises liability cases, though
it would have an effect on the plaintiff’s ability to recover.
For example, if the Caniff case were analyzed under a
Quinlaven approach, the defendant ship owner could have
prevailed on one of two theories: (1) the ship was reasonably
safe, and ordinary care was exercised despite the fact that
the hatch was left open, or (2) it was unreasonable to leave
the hatch open, but the plaintiff nonetheless would lose
because his own failure to exercise due care for his own
14
safety contributed to his injury and barred recovery. Under
comparative negligence principles, the defendant could still
prevail if the ship was deemed reasonably safe despite the
open hatch, but the ship owner would not necessarily prevail
in the second instance. As such, there is a significant
difference between an interpretation of the open and obvious
doctrine that says, “a defendant owes a duty to invitees to
keep his premises reasonably safe, but that duty does not
extend to protection against open and obvious dangers,” and to
say that, “a defendant owes a duty to keep his premises
reasonably safe, but he will not be held liable if the
plaintiff fails to heed open and obvious dangers.” It is this
distinction that lies at the crux of the present case.
D. Post-contributory cases
What makes this case particularly difficult is that, in
an attempt to be faithful to prior precedent, some of this
Court’s decisions that attempted to apply the open and obvious
danger doctrine in a post-contributory era confused the issue
inadvertently. One such opinion, which I authored, is
Williams v Cunningham Drug Stores, Inc, 429 Mich 495; 418 NW2d
381 (1988). In Williams, a store customer was injured after
fleeing the store directly behind an armed robber. The
primary focus in Williams was whether a business owner has a
duty to his invitees to insure against harm resulting from a
third-party criminal act. However, in a portion of the
15
opinion I wrote that the duty a possessor of land owes his
invitees “does not extend to conditions from which an
unreasonable risk cannot be anticipated or to dangers so
obvious and apparent that an invitee might be expected to
discover them himself.” Id. at 500. The statement was
supported with a citation to Restatement § 343A. But it would
have been more precise to say that liability would be
suspended in such circumstances. A better explanation of the
duty issue was presented by the opinion’s discussion of § 343,
which noted that invitors have a special relationship with
invitees and that possessors of land owe a duty to their
invitees to exercise reasonable care to protect invitees from
an unreasonable risk of harm caused by a dangerous condition
on the land.
A better approach to the Restatement is the one that I
stated in a later opinion:
When §§ 343 and 343A are read together, the
rule generated is that if the particular activity
or condition creates a risk of harm only because
the invitee does not discover the condition or
realize its danger, then the open and obvious
doctrine will cut off liability if the invitee
should have discovered the condition and realized
its danger. On the other hand, if the risk of harm
remains unreasonable, despite its obviousness or
despite knowledge of it by the invitee, then the
circumstances may be such that the invitor is
required to undertake reasonable precautions. The
issue then becomes the standard of care and is for
the jury to decide. [Bertrand at 611.]
16
Bertrand indicated that Williams should not be read too
broadly. Bertrand cited Williams for the proposition that an
invitor is not relieved of the duty to exercise reasonable
care to protect invitees against known or discoverable
dangerous conditions, even in cases where there would be no
duty to warn. Bertrand went on to say that a duty exists by
virtue of the relationship between the parties, and then the
opinion examined whether the duty had been breached.
I continue to believe that Bertrand correctly focused on
liability and on breach. Yet, given the discussions of late,
I think Bertrand also may have been less precise in its
terminology than it could have been.
For example, at one point, I wrote,
Under ordinary circumstances, the overriding
public policy of encouraging people to take
reasonable care for their own safety precludes
imposing a duty on the possessor of land to make
ordinary steps “foolproof.” Therefore, the risk of
harm is not unreasonable. However, where there is
something unusual about the steps, because of their
“character, location, or surrounding conditions,”
then the duty of the possessor of land to exercise
reasonable care remains. If the proofs created a
question of fact that the risk of harm was
unreasonable, the existence of duty as well as
breach become questions for the jury to decide.
[Id. at 616-617.]
This portion of the opinion directly followed a discussion of
cases decided under contributory negligence, and was an
attempt to incorporate the language of some prior cases. A
more correct statement of the law would have been that the
17
duty to exercise reasonable care is not breached in cases
involving ordinary steps. In that context, it may have been
more evident that Bertrand’s “unusual” characteristics
discussion related to the foreseeability and unreasonableness
of the risk of harm, rather than creating a special new rule.
It should also be noted that the differing viewpoints I
expressed in Williams and Bertrand are due in part to this
Court’s intervening decision in Riddle v McLouth Steel
Products. The majority in Riddle held, in pertinent part,
that an invitor has no duty to warn invitees of open and
obvious dangers.
Justice Levin wrote a dissenting opinion, which I believe
to be the more correct approach. In a nutshell, Justice Levin
noted that the issue is a standard of care issue, not a duty
issue. He also pointed out that the “no-duty” rule actually
came about as one way of expressing that a plaintiff was
contributorily negligent. The defendant’s duty should be tied
to the relationship between the parties, and that duty would
be owed regardless of whether a comparative negligence or
contributory negligence system is in place. A finding of
comparative negligence would assume that the defendant was in
fact negligent, because comparative negligence is used only as
a tool for apportioning damages after a breach of duty on the
part of the defendant has been found. The primary questions
for the jury to resolve in premises liability cases are,
18
first, whether the defendant has breached his duty of care,
and, second, whether his liability is somehow limited by the
plaintiff’s comparative negligence. It is within this
framework that the Restatement approach to the open and
obvious danger doctrine must be viewed. I agree with Justice
Levin’s approach.
III. Why the Majority Approach is Wrong
In light of the principles underlying the open and
obvious doctrine, I believe that it would be a serious mistake
to rephrase the open and obvious rule in yet another imprecise
fashion. I further believe that the majority is in error.
In support of the “special aspects” test, the majority
offers the following quotation from Bertrand at 614:
With the axiom being that the duty is to
protect invitees from unreasonable risks of harm,
the underlying principle is that even though
invitors have a duty to exercise reasonable care in
protecting their invitees, they are not absolute
insurers of the safety of their invitees.
Quinlaven . . . . Consequently, because the danger
of tripping and falling on a step is generally open
and obvious, the failure to warn theory cannot
establish liability. However, there may be special
aspects of these particular steps that make the
risk of harm unreasonable, and, accordingly, a
failure to remedy the dangerous condition may be
found to have breached the duty to keep the
premises reasonably safe. [Slip op at 5 (emphasis
added).]
While Bertrand recognized that if a condition has special
aspects that render it unreasonably dangerous, the possessor
may be subject to liability; the quoted language in no way
19
implies that the possessor only has a duty to undertake
reasonable precautions to protect his invitees when a
condition has special aspects.
Bertrand was intended as an application of the
Restatement approach to open and obvious dangers. Considered
in the context of the language of the Restatement, it is clear
that Bertrand’s focus was on whether the possessor failed to
exercise reasonable care to protect his invitees against an
unreasonable risk of harm flowing from a condition that the
possessor knew about or should have discovered through the
exercise of reasonable care, and whether the possessor should
have expected that the invitees would not discover or realize
the danger or would fail to protect themselves against it.
Secondarily, Bertrand considered whether harm should have been
anticipated by the possessor.
In my view, special aspects of a particular condition may
be relevant to a determination whether liability should be
imposed; however, consideration of special aspects should be
made in the context of the Restatement test. For example, if
a condition has special aspects that render it unusual, it is
possible that a court could conclude that the possessor should
have known that the condition could pose an unreasonable risk
of danger to his invitees. If the court then concludes that
the possessor knew about the condition or could have
discovered it by the exercise of reasonable care, that the
20
possessor should have expected that the invitees would not
discover or realize the danger or would fail to protect
themselves against it, and that the possessor failed to
exercise reasonable care in protecting his invitees, the court
could hold that the defendant is subject to liability pursuant
to § 343. Moreover, the special aspects of a particular
condition on the land might be relevant to a determination
whether the possessor should have anticipated that the
condition on his land would cause harm to his invitees. If
so, the liability shield of § 343A could be lifted.
In sum, while “special aspects” may be considered in
determining whether liability should be suspended, the
existence or absence of special aspects in a particular case
will not necessarily be outcome determinative. Instead,
pursuant to the Restatement, courts must focus on whether an
unreasonable danger is presented, whether harm should be
anticipated, and whether the duty of care has been breached.
IV. An Alternative Approach
I believe that the appropriate questions that should be
taken up in this case are those posed by the Restatement. I
would conclude that the plaintiff has failed to establish that
the pothole in the defendant’s parking lot presented an
unreasonable risk of harm. Because § 343 of the Restatement
provides that a possessor can be liable only when a condition
involves an unreasonable risk of harm, the plaintiff cannot
21
prevail. Likewise, the plaintiff has failed to establish that
the defendant should have anticipated that she would be
injured by the pothole. Rather, as the majority asserts, the
pothole was the type of open and obvious condition that a
reasonably prudent person would avoid. Therefore, under §
343A, the defendant is not liable for the physical harm caused
by the condition.
The plaintiff has failed to establish a material issue of
fact. The circumstances of this case reveal that the
liability cannot be imposed against the defendant. Therefore,
I join the majority’s decision to reverse.
KELLY , J., concurred with CAVANAGH , J.
22
S T A T E O F M I C H I G A N
SUPREME COURT
ODIS LUGO,
Plaintiff-Appellee,
v No. 112575
AMERITECH CORPORATION, INC.,
Defendant-Appellant.
____________________________________
W EAVER, J. (concurring).
I concur in the result of the majority opinion.
Plaintiff presented no evidence that the pothole was
unreasonably dangerous despite its obviousness.
I write separately because the majority unnecessarily
introduces—in dicta—a new standard by which open and obvious
defects will be deemed unreasonably dangerous despite their
open and obvious presence. Rather than introduce new
standards into the open and obvious doctrine, I would remain
true to existing precedent. See, e.g., Riddle v McLouth
Steel Products Corp, 440 Mich 85, 96; 485 NW2d 676 (1992), and
Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 500; 418
NW2d 381 (1988).
The majority’s new standard focuses on special aspects of
an open and obvious condition that give rise to the
“unreasonable risk of severe harm.” Slip op at 6 (emphasis
added).1 This standard has no precedent in Michigan’s common
law of the open and obvious doctrine. This Court has not
suggested—until today—that the degree of potential harm is
relevant to whether the risk of harm posed by a condition
remains unreasonable despite its obviousness.
In an apparent effort to provide guidance to the bench
and bar, the majority presents unlikely hypothetical examples.
When launching new legal principles from a factual vacuum, it
would be more helpful to apply this new severe-harm standard
to an actual case that came before this Court, such as
Singerman v Municipal Service Bureau, Inc, 455 Mich 135; 565
NW2d 383 (1997). Singerman was left unresolved by a three
three split. It is indeed unfortunate that the majority fails
to take this opportunity to clarify its new standard by
1
The majority also offers a new definition of dicta to
justify its adoption of the new severe-harm standard. The
majority states that “the lack of such special aspects [i.e.,
the unreasonable risk of severe harm] in the present case
forms the basis of our holding that defendant was entitled to
a grant of summary disposition in its favor.” Slip op at 9,
n 3. This explanation, in my view, acknowledges that the
severe-harm standard is “dicta.” “Dicta” is defined as
“[o]pinions of a judge which do not embody the resolution or
determination of the specific case before the court.
Expressions in court’s opinion which go beyond the facts
before court and therefore are individual views of author and
not binding in subsequent cases as legal precedent.” Black’s
Law Dictionary, 6th ed. The severe-harm standard is not at
issue on the facts of this case, is not briefed by the
parties, and is not essential to the determination of this
case.
2
application to the facts of this recent case.
In Singerman, the plaintiff alleging negligence sued the
operator of a public hockey rink. Plaintiff was an
experienced hockey player who joined or was observing a pick
up game. Plaintiff went onto the ice without protective
equipment and, at one point, stood leaning on the goal net.
As the scrimmage moved his way, plaintiff was hit in the eye
by a puck shot on goal, and he sustained severe damage.
Plaintiff testified that he saw the player take the shot, but
was unable to avoid the puck because of poor lighting. The
issue presented was whether the defendant should have
anticipated the harm despite plaintiff’s knowledge of the
hazardous condition.
Because severe harm is inherent to hockey, indeed the
plaintiff in Singerman lost an eye, it would seem under the
majority’s severe-harm standard the question whether the risk
of harm caused by the lighting defect was unreasonable despite
its obviousness would be for the jury. This, despite the fact
that the lighting in the rink was alleged to be consistently
inadequate and there was no chance that plaintiff would forget
the potentially hazardous condition “because the condition was
constantly before him.” Singerman at 144 (W EAVER , J.,
opinion). I believe that Singerman was an appropriate case
for summary disposition in favor of the defendant because the
3
open and obvious danger of the inadequate lighting was not
unreasonably dangerous despite the potential for severe harm.
Contrary to the majority’s suggestion that my position
would allow “no tort claim [to] lie,” slip op at 8, my
position simply remains true to well-established articulations
of the open and obvious doctrine. These articulations focus
on circumstances that make a risk unreasonable despite its
openness and obviousness, rather than on the nature of the
potential harm. See, e.g., Riddle, supra at 96 (holding that
“[w]here the dangers are known to the invitee or are so
obvious that the invitee might reasonably be expected to
discover them, an invitor owes no duty to protect or warn the
invitee unless he should anticipate the harm despite knowledge
of it on behalf of the invitee”); Williams v Cunningham Drug
Stores, Inc, supra at 500 (stating that “[t]he duty a
possessor of land owes his invitees is not absolute . . . .
It does not extend to conditions from which an unreasonable
risk cannot be anticipated or to dangers so obvious and
apparent that an invitee may be expected to discover them
himself. Furthermore, ‘the occupier is not an insurer of the
safety of invitees, and his duty is only to exercise
reasonable care for their protection’”).
4