Legal Research AI

Lugo v. Ameritech Corp., Inc.

Court: Michigan Supreme Court
Date filed: 2001-07-03
Citations: 629 N.W.2d 384, 464 Mich. 512
Copy Citations
367 Citing Cases
Combined Opinion
                                                                       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