Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice Justices
Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JUNE 30, 2004
ROGER MANN,
Plaintiff-Appellee,
v No. 120651
SHUSTERIC ENTERPRISES, INC.,
doing business as SPEEDBOAT BAR & GRILL,
Defendant-Appellant,
and
BADGER MUTUAL INSURANCE COMPANY,
Defendant.
_______________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We granted leave to appeal in this case to decide
whether a plaintiff who suffers injury after slipping and
falling in the parking lot of a bar where plaintiff has
become visibly intoxicated may, notwithstanding the
exclusivity provision of the dramshop act, MCL
436.1801(10),1 pursue a common-law premises liability cause
of action against that bar. The Court of Appeals affirmed
1
Formerly, MCL 423.22, before April 14, 1998.
the jury’s $226,000 verdict in favor of plaintiff, holding
that the dramshop act did not preclude plaintiff’s premises
liability cause of action, and that the bar’s knowledge of
plaintiff’s intoxication was relevant regarding whether the
bar breached its duty to protect plaintiff against the ice
and snow in its parking lot. Although we agree in part
with the Court of Appeals and hold that the dramshop act
does not preclude such a cause of action, we reject the
holding by the Court of Appeals that the bar’s knowledge of
plaintiff’s intoxication has any relevance. Lugo v
Ameritech Corp, Inc, 464 Mich 512, 520; 629 NW2d 384
(2001). Accordingly, we reverse the decision of the Court
of Appeals, vacate the jury verdict, and remand this case
for further proceedings consistent with this opinion.
I. BACKGROUND
On March 6, 1996, during a blizzard, plaintiff entered
defendant’s bar and consumed nine alcoholic drinks in
approximately three hours. After leaving the bar,
plaintiff, who was visibly intoxicated and had a blood
alcohol content of 0.25 percent,2 sustained injuries when he
slipped and fell on ice and snow that had accumulated in
2
Plaintiff’s expert testified that given plaintiff’s
ingestion of so much alcohol, it was highly improbable that
plaintiff could “mask” the degree of his intoxication. The
expert apparently concluded that plaintiff was “visibly
intoxicated.”
2
defendant’s parking lot during the blizzard. Accordingly,
plaintiff filed a premises liability cause of action
against defendant, claiming that defendant breached its
duty of care by failing to warn plaintiff of the ice and
snow in defendant’s parking lot and failing to remove such
ice and snow within a reasonable time after it had
accumulated in defendant’s parking lot.
Over defense objection to an instruction on M Civ JI
19.03, the trial court delivered both the “Duty Of
Possessor Of Land, Premises, Or Place Of Business To
Invitee” instruction3 and the “Duty Of Possessor Of Land,
Premises, Or Place Of Business To A Business Invitee
Regarding Natural Accumulation Of Ice And Snow”
instruction.4 While finding plaintiff fifty percent
3
M Civ JI 19.03 states, in relevant part:
A possessor must warn the invitee of dangers
that are known or that should have been known to
the possessor unless those dangers are open and
obvious. However, a possessor must warn an
invitee of an open and obvious danger if the
possessor should expect that an invitee will not
discover the danger or will not protect [himself]
against it.
Note on Use
This paragraph is to be used in cases
involving a claim of failure to warn.
4
M Civ JI 19.05 states:
It was the duty of [defendant] to take
reasonable measures within a reasonable period of
(continued…)
3
comparatively negligent, the jury returned a $226,000
verdict in plaintiff’s favor. Because plaintiff believed
that the jury’s failure to award noneconomic damages was
against the great weight of the evidence, he filed a motion
for additur or for a new trial, which motion the trial
court denied.
Defendant appealed, raising the issues of
instructional error and error in the calculation of
damages. Plaintiff cross-appealed, contending that the
trial court erred in denying his motion for additur or for
a new trial. In its first opinion, the Court of Appeals
reversed the decision of the trial court denying
plaintiff’s motion for additur or for a new trial.5
However, on defendant’s motion for rehearing, the Court of
Appeals affirmed the decision of the trial court in all
respects.6
(…continued)
time after the accumulation of snow and ice to
diminish the hazard of injury to [plaintiff].
Note on Use
This instruction should be used where
applicable instead of the more general M Civ JI
19.03 Duty of Possessor of Land, Premises, or
Place of Business to Invitee. It does not apply
to public sidewalks.
5
Unpublished opinion per curiam, issued May 11, 2001
(Docket No. 210920).
6
Unpublished opinion per curiam, issued November 30,
2001 (Docket No. 201920).
4
Defendant sought leave to appeal in this Court,
arguing that a premises liability cause of action that is
alleged to be grounded in the consumption of alcohol is a
dramshop action in another guise and, thus, because of the
exclusivity provision of the dramshop act, plaintiff should
be precluded from pursuing any other cause of action,
including a premises liability action.
II. STANDARD OF REVIEW
Statutory interpretation is an issue of law that is
reviewed de novo. G C Timmis & Co v Guardian Alarm Co, 468
Mich 416, 419; 662 NW2d 710 (2003).
III. ANALYSIS
Defendant argues that plaintiff’s premises liability
cause of action is precluded by the exclusivity provision
of the dramshop act, MCL 436.1801(10), which provides:
This section [MCL 436.1801] provides the
exclusive remedy for money damages against a
licensee arising out of the selling, giving, or
furnishing of alcoholic liquor.[7]
Moreover, because the act also provides that “[t]he alleged
visibly intoxicated person shall not have a cause of action
7
“[T]he dramshop act affords the exclusive remedy for
injuries arising out of an unlawful sale, giving away, or
furnishing of intoxicants.” Manuel v Weitzman, 386 Mich
157, 164-165; 191 NW2d 474 (1971), quoting De Villez v
Schifano, 23 Mich App 72, 77; 178 NW2d 147 (1970)(emphasis
in original). An “unlawful” sale is a sale to either a
minor or a visibly intoxicated person. MCL 436.1801(3).
5
pursuant to this section . . . ,” MCL 436.1801(9),
defendant argues that plaintiff, as the alleged visibly
intoxicated person, has no cause of action at all under the
dramshop act.
Plaintiff does not contest that, if his cause of
action, in fact, did arise from defendant's unlawful
"selling, giving, or furnishing" of alcohol, he would be
barred from bringing this cause of action by the dramshop
act. However, plaintiff instead asserts that the act does
not preclude a premises liability action filed by a visibly
intoxicated person against the dramshop that unlawfully
served alcohol to that person.
We agree with plaintiff. Here, plaintiff’s action
arises from injuries he sustained after he slipped and fell
in defendant’s icy and snow-covered parking lot. That is,
plaintiff’s action is based on the claim that defendant did
not sufficiently protect him as an invitee from a dangerous
condition on the premises, specifically defendant’s icy and
snow-covered parking lot. Accordingly, this is not an
action arising from the unlawful “selling, giving, or
furnishing” of alcohol. MCL 436.1801(3). Rather, it is an
ordinary premises liability action. This is made evident
by considering that, had plaintiff not been served any
alcohol at all by defendant, but still sustained the same
injuries, plaintiff would not be precluded from asserting a
6
premises liability action for such injuries on the basis of
his invitee status.8
Because we hold that the dramshop act does not
preclude plaintiff’s premises liability cause of action, we
next consider the relevancy of plaintiff's intoxication and
defendant’s knowledge of such intoxication. Generally, a
premises possessor owes a duty of care 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 (1995). This duty generally does not
encompass a duty to protect an invitee from “open and
8
Because this is not an action arising from the
unlawful “selling, giving, or furnishing” of alcohol, and
because the common law recognizes a cause of action for
defendant’s alleged negligence, Lugo, supra at 516-517, our
holding that the dramshop act does not preclude plaintiff’s
cause of action is consistent with the test set forth by
this Court in Manuel v Weitzman, 386 Mich 157; 191 NW2d 474
(1971), as described in Millross v Plum Hollow Golf Course,
429 Mich 178, 187; 413 NW2d 17 (1987):
“(1) Does the claim against ‘the tavern owner’ arise
out of an unlawful sale, giving away, or furnishing of
intoxicants? If so, the dramshop act is the exclusive
remedy.
“(2) If the claim arises out of conduct other than
selling, giving away, or furnishing of intoxicants, does
the common law recognize a cause of action for the
negligent conduct? If so, then the dramshop act neither
abrogates nor controls the common-law action. If not,
there is no independent common-law claim.”
See also Jackson v PKM Corp, 430 Mich 262, 276-277;
422 NW2d 657 (1988)(applying the Manuel test as described
in Millross).
7
obvious” dangers. Lugo, supra at 516. However, if there
are “special aspects” of a condition that make even an
“open and obvious” danger "unreasonably dangerous," the
premises possessor maintains a duty to undertake reasonable
precautions to protect invitees from such danger. Id. at
517.9 To determine whether a condition is “open and
obvious,” or whether there are “special aspects” that
render even an "open and obvious" condition "unreasonably
dangerous," the fact-finder must utilize an objective
standard, i.e., a reasonably prudent person standard. Id.
That is, in a premises liability action, the fact-finder
must consider the “condition of the premises,” not the
condition of the plaintiff. Id. at 518 n 2.10 A visibly
9
By his exaggerated language—“the majority [is] using
this case as a vehicle to rewrite Michigan premises
liability law,” post at 1-2; “[t]oday’s decision is simply
the latest installment in the majority’s systematic
dismantling of the Restatement approach,” id. at 2; “the
majority . . . overrules decades of well-reasoned
precedent, id.; “the majority repudiates the Restatement
approach,” post at 10,—Justice CAVANAGH is again merely
raising issues he initially raised in his concurring
opinion in Lugo, while in the process giving no effect to
the “special aspects” doctrine articulated in that
decision. Lugo, supra at 527. He is, of course, entitled
to reargue Lugo for as long as he wishes, but it should be
understood that the instant case represents nothing more
than an ordinary application of the principles set forth in
that opinion.
10
In making a determination about whether an alleged
dangerous condition is “open and obvious,” such a
determination is not dependent on the characteristics of a
particular plaintiff, but rather on the characteristics of
(continued…)
8
intoxicated person is held to the same standard of
reasonable conduct as a sober person.
Accordingly, the Court of Appeals erred when it
stated:
Defendant’s service of alcohol was
implicated only as it related to defendant’s
knowledge of plaintiff’s condition as relevant to
whether defendant’s conduct in failing to inspect
or clear the parking lot and failing to warn
plaintiff was reasonable. [November 30, 2001,
slip op at 4.]
Rather, defendant’s knowledge that plaintiff was
intoxicated does not affect the legal duties it owes to
plaintiff. That is, although defendant served plaintiff
alcohol and was apparently aware that plaintiff was
intoxicated, defendant does not owe plaintiff any
heightened duty of care. Rather, in determining whether
defendant breached its duty, the fact-finder must decide
only whether a reasonably prudent person would have slipped
and fallen on the ice and snow in defendant’s parking lot,
(…continued)
a reasonably prudent person. Bertrand, supra at 617;
Radtke v Everett, 442 Mich 368, 390-391, 501 NW2d 155
(1993), quoting 2 Restatement Torts, 2d, § 283, comment c,
p 13; Sidorowicz v Chicken Shack, Inc, 469 Mich 912
(2003)(TAYLOR, J., concurring). By imposing an obligation
upon a homeowner or other premises possessor, not merely to
make his premises reasonably safe under ordinary
circumstances, but also under every conceivable
circumstance, Justice CAVANAGH in his concurrence/dissent,
post at 7, would impose a substantially increased legal
burden upon such persons.
9
or whether that reasonably prudent person should have been
warned by defendant of the dangerous condition.
If plaintiff’s extent of intoxication were considered
in determining defendant’s duty of care to plaintiff, such
consideration, in our judgment, would circumvent the
dramshop act’s prohibition against permitting a visibly
intoxicated person from collecting monetary damages arising
from defendant’s unlawful “selling, giving, or furnishing”
of alcohol to such plaintiff. MCL 436.1801(9)(10). The
dramshop act protects dramshop owners by prohibiting a
visibly intoxicated person from recovering damages that
have arisen from the dramshop unlawfully “selling, giving,
or furnishing” alcohol to such person. In our judgment,
the statutory protection would be nullified if dramshop
owners, in premises liability actions, were held to a
higher duty of care because they unlawfully sold alcohol to
a visibly intoxicated person. Accordingly, a dramshop
owner, as with any other property owner, has a duty toward
the reasonably prudent invitee; he does not, however, have
a heightened duty in the case of the visibly intoxicated
invitee. Concomitantly, there is no diminished standard of
reasonable conduct on the part of a visibly intoxicated
invitee in comparison with any other invitee.
Defendant raises one last argument concerning the jury
instructions. The “Note on Use” of M Civ JI 19.05 states
10
that "this instruction [pertaining to the obligations of a
premises possessor to diminish the hazards arising from the
accumulation of ice and snow] should be used where
applicable instead of the more general M Civ JI 19.03
[pertaining to the obligations of a premises possessor to
warn of open and obvious dangers] . . . .” By virtue of
the “instead of” language, defendant argues that § 19.03
and § 19.05 are mutually exclusive and that the trial court
erred in giving § 19.03. Defendant argues that § 19.05
applies in a single specific situation— where there is an
accumulation of ice and snow— and that in such a situation,
the trial court should only have instructed on § 19.05. We
disagree. Under Lugo, a premises possessor has a duty to
“protect” an invitee from dangers that are either not “open
and obvious,” or, although “open and obvious,” contain
“special aspects” that make such dangers “unreasonably
dangerous.” Lugo, supra at 516-517. Because the duty to
“protect,” as that term was used in Lugo, is broader and
more general than either the duty to “warn,” § 19.03, or
the duty to “diminish” a hazard caused by ice and snow,
§ 19.05, we believe that the duty to “protect” encompasses
both the duty to “warn” and the duty to “diminish” in these
instructions. Accordingly, to the extent that the “Note on
Use” of § 19.05 implies that § 19.03 and § 19.05 are
mutually exclusive, such an implication is unwarranted
11
under Lugo, and the trial court did not err on this ground
in delivering both instructions.
However, we believe that § 19.03 is an inaccurate
instruction. Under Lugo, a premises possessor must protect
an invitee against an “open and obvious” danger only if
such danger contains “special aspects” that make it
"unreasonably dangerous." Lugo, supra at 517. Because
“special aspects” are not defined with regard to whether a
premises possessor should expect that an invitee will not
“discover the danger” or will not “protect against it,” §
19.03, but rather by whether an otherwise “open and
obvious” danger is “effectively unavoidable” or “impose[s]
an unreasonably high risk of severe harm” to an invitee,
Lugo, supra at 518, we believe that § 19.03 sets forth an
inaccurate statement of premises liability law.11
We further believe that § 19.05 sets forth an
inaccurate instruction. Under Lugo, a premises possessor
must protect an invitee against an “open and obvious”
danger only if such danger contains “special aspects” that
make it “unreasonably dangerous.” Lugo, supra at 517.
Thus, in the context of an accumulation of snow and ice,
11
Moreover, "an invitee," as used in § 19.03, must be
understood to refer to a "reasonably prudent" invitee.
Lugo, supra at 523. Accordingly, a trial court must
explain that this term refers to an objective invitee.
12
Lugo means that, when such an accumulation is “open and
obvious,” a premises possessor must "take reasonable
measures within a reasonable period of time after the
accumulation of snow and ice to diminish the hazard of
injury to [plaintiff]" only if there is some “special
aspect” that makes such accumulation “unreasonably
dangerous.”12 Section 19.05 ignores Lugo’s “unreasonably
dangerous” requirement by imposing an absolute duty on a
premises possessor irrespective of whether the accumulation
of snow and ice creates “special aspects” making such
accumulation “unreasonably dangerous.”13 Such an absolute
duty does not exist under Lugo.
12
Because we are seeking here to conform M Civ JI
19.05 with Lugo, and because Lugo has brought some
reasonable measure of clarity to a law that had previously
been in disarray, we respectfully disagree with Justice
CAVANAGH’S assertion in his concurrence/dissent that, “[i]n
qualifying M Civ JI 19.05 with its Lugo standard, the
majority has added uncertainty to Michigan premises
liability law.” Post at 10-11. Rather, the majority
believes that it has moved in precisely the opposite
direction by seeking to coordinate and render consistent
the case law of Michigan rather than allowing, as has too
often been true in recent years, multiple, conflicting
expressions of the law to coexist, essentially allowing
litigants to choose among inconsistent opinions in the
manner that a patron at a Chinese restaurant might choose
among dinner items from Column A or Column B. See, e.g.,
Nawrocki v Macomb Co Road Comm, 463 Mich 143; 615 NW2d 702
(2000).
13
Quinlivan v The Great Atlantic & Pacific Tea Co,
Inc, 395 Mich 244, 261; 235 NW2d 732 (1975), must be
understood in light of this Court’s subsequent decisions in
Bertrand and Lugo. Concerning the duty of care a homeowner
(continued…)
13
IV. CONCLUSION
We agree in part with the Court of Appeals and hold
that the dramshop act does not preclude plaintiff’s
premises liability cause of action because plaintiff’s
(…continued)
or other premises possessor owes to an invitee arising from
the accumulation of ice and snow, Justice WEAVER relies in
her concurrence/dissent on Quinlivan and asserts that
“premises possessors owed a duty to invitees to take
‘reasonable measures . . . within a reasonable time after
an accumulation of ice and snow to diminish the hazard of
injury to the invitee.’” Post at 2 (citation omitted).
The majority is unprepared to hold that, absent any special
aspects, and absent consideration of the open and obvious
nature of a hazard, a homeowner or other premises possessor
owes an absolute duty to an invitee to diminish the hazards
attendant to the accumulation of ice and snow.
Further, we are perplexed how Justice WEAVER, in light
of her concurring opinion in Lugo, supra at 544, in which
she asserted that only the open and obvious standard should
apply in determining whether a homeowner or other premises
possessor is liable to an invitee for a dangerous condition
on his premises, would now disavow the majority’s supposed
application of Lugo to Quinlivan on the grounds that not
only are “snow and ice accumulations . . . obvious,” but
“the ‘rigorous duty’ owed by invitors to protect invitees
from unreasonable harm justifie[s] the imposition of a
uniform duty on invitors regarding accumulations of snow
and ice.” Post at 2. Consistent with her opinion in Lugo,
we are hard-pressed to understand how Justice WEAVER could
now conclude that a homeowner or other premises possessor
has a duty of care to diminish a hazard caused by the
accumulation of ice and snow, even if such hazard is open
and obvious. In other words, Justice WEAVER criticizes the
majority in Lugo for failing to accord the “openness and
obviousness” of a hazard exclusive consideration, while in
the instant case, she criticizes the majority for according
the “openness and obviousness” of a hazard excessive
consideration. Her positions in these two cases are wholly
incompatible.
14
injuries arose from something other than defendant
unlawfully “selling, giving, or furnishing” alcohol to
plaintiff.14 However, we also hold that a dramshop's
knowledge of an invitee's intoxication is irrelevant in
determining whether that dramshop has breached its duty of
care toward such invitee, and that there is no diminished
standard of conduct on the part of a visibly intoxicated
invitee. Accordingly, we reverse the judgment of the Court
of Appeals, vacate the jury verdict, and remand this case
for further proceedings consistent with this opinion.15
Stephen J. Markman
Maura D. Corrigan
Clifford W. Taylor
Robert P. Young, Jr.
14
However, contrary to the dissent, post at 1, we do
not reach this conclusion on the basis of our assessment of
the "spirit" of the dramshop act, but rather on the basis
of our assessment of its language.
15
Although the jury found plaintiff fifty percent
comparatively negligent, it does not necessarily follow
that the jury found that a reasonably prudent person would
not have fallen in defendant’s parking lot. Instead, by
apportioning some negligence to plaintiff, the jury
conceivably was finding only that, although a reasonably
prudent person would also have fallen, such a person would
not have sustained the same degree of injuries suffered by
the visibly intoxicated plaintiff. We remand this case in
order to enable the trial court to review de novo the
proper legal standards and jury instructions in light of
the facts of this case.
15
S T A T E O F M I C H I G A N
SUPREME COURT
ROGER MANN,
Plaintiff-Appellee,
v No. 120651
SHUSTERIC ENTERPRISES, INC.,
doing business as SPEEDBOAT BAR & GRILL,
Defendant-Appellant,
And
BADGER MUTUAL INSURANCE COMPANY,
Defendant.
_______________________________
CORRIGAN, C.J. (concurring).
I concur with the majority’s reasoning and decision to
remand this case for further proceedings. I agree that a
premises owner has no duty to protect an invitee from open
and obvious dangers on a premises unless “special aspects”
render the condition “unreasonably dangerous.” Lugo v
Ameritech, 464 Mich 512, 517; 629 NW2d 384 (2001).
I do not consider the more difficult questions whether
plaintiff’s cause of action is precluded by the dramshop
act and whether Manuel v Weitzman, 386 Mich 157, 163; 191
NW2d 474 (1971) should be overruled because those arguments
were never presented in the circuit court. Defendant
raised the dramshop act’s exclusivity provision1 in a
pretrial conference only in connection with jury
instructions. It explicitly waived the issue that the
dramshop act was plaintiff’s exclusive remedy.2 Thus,
although plaintiff’s proofs at trial appeared to invade the
province of the dramshop act, I do not need to consider
that question because of the procedural posture of the
case.
Maura D. Corrigan
1
“This section provides the exclusive remedy for money
damages against a licensee arising out of the selling,
giving, or furnishing of alcoholic liquor.” MCL
436.1801(10).
2
Defendant’s attorney stated “Mr. Brittain has talked
a lot about how he’s entitled to bring a premises claim.
We’ve never disputed that.”
2
S T A T E O F M I C H I G A N
SUPREME COURT
ROGER MANN,
Plaintiff-Appellee,
v No. 120651
SHUSTERIC ENTERPRISES, INC,
doing business as SPEEDBOAT BAR & GRILL,
Defendant-Appellant,
and
BADGER MUTUAL INSURANCE COMPANY,
Defendant.
_______________________________
CAVANAGH, J. (concurring in part and dissenting in part).
I agree with the majority that the exclusivity
provision of the dramshop act, MCL 436.1801(10), does not
preclude plaintiff’s premises liability claim. I also
agree that, under the unique facts of this case,
consideration of plaintiff’s intoxication with regard to
defendant’s duty of care in a premises liability action may
circumvent the spirit of the dramshop act. I must,
however, concur in the result only.
Unlike the majority, I believe that M Civ JI 19.03 and
19.05 remain accurate instructions under Michigan law.
Moreover, I am troubled by the majority using this case as
a vehicle to rewrite Michigan premises liability law and to
unwisely extend the rationale of Lugo v Ameritech Corp,
Inc, 464 Mich 512; 629 NW2d 384 (2001). Until today, the
precise application and scope of the majority’s “special
aspects” analysis was unclear. See, e.g., Brousseau v
Daykin Electric Corp, 468 Mich 865 (2003) (MARKMAN, J.,
dissenting). Unfortunately, the majority opinion today
ends that debate.
Today’s decision is simply the latest installment in
the majority’s systematic dismantling of the Restatement of
Torts approach. The majority effectively states that the
Restatement approach is dead because Lugo, and only Lugo,
is the law in Michigan. In revising M Civ JI 19.03, the
majority signals the death knell to the protections
previously afforded the citizens of this state and, as a
practical matter, overrules decades of well-reasoned
precedent.
I remain committed to the view that the majority’s
singular approach is wrong and inconsistent with Michigan’s
premises liability jurisprudence.1 Because Lugo, and its
“special aspects” analysis, is not the only relevant
1
I appreciate the majority graciously granting me
permission to espouse my view of the law and allowing me to
“reargue” the ramifications of overreliance on Lugo’s
errant approach. See ante at 8 n 9.
2
inquiry in such cases, I fail to see the wisdom of revising
M Civ JI 19.03 and 19.05 to only reflect the current
majority’s Lugo standard. I remain committed to the view
that under Michigan law, other inquiries are relevant, if
not required, in open and obvious danger cases.
I. M Civ JI 19.03
I agree with the majority that a premises possessor is
generally not required to protect an invitee from open and
obvious dangers. This is the approach advanced by 2
Restatement Torts, 2d, § 343A, an approach which “has been
key to Michigan’s open and obvious danger law . . . .”
Lugo, supra at 528 (CAVANAGH, J., concurring); see also
Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185
(1995); Perkoviq v Delcor Homes-Lake Shore Pointe, Ltd, 466
Mich 11, 16; 643 NW2d 212 (2002). As noted by the
Restatement, however, there are exceptions to this general
rule, and these exceptions cannot be conveniently
summarized by a “special aspects” analysis.
The applicable Restatement sections provide:
§ 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
3
(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
protect them against the danger. [2 Restatement
Torts, 2d, § 343, pp 215-216 (emphasis added).]
§ 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.
[Id. at § 343A, p 218 (emphasis added).]
Comment f to § 343A is particularly enlightening and states
in relevant part:
There are, however, cases in which the
possessor of land can and should anticipate that
the dangerous condition will cause physical harm
to the invitee notwithstanding its known or
obvious danger. In such cases the possessor is
not relieved of the duty of reasonable care which
he owes to the invitee for his protection. This
duty may require him to warn the invitee, or to
take other reasonable steps to protect him,
against the known or obvious condition or
activity, if the possessor has reason to expect
that the invitee will nevertheless suffer
physical harm.
Such reason to expect harm to the visitor
from known or obvious dangers may arise, for
example, where the possessor has reason to expect
that the invitee’s attention may be distracted,
so that he will not discover what is obvious, or
will forget what he has discovered, or fail to
4
protect himself against it. [Id. 2d, § 343A
comment 1(f), p 220 (emphasis added).]
It is within this context that the proposed revisions
to M Civ JI 19.03 must be examined. The instruction
provides in pertinent part:
A possessor of [land/premises/a place of
business] has a duty to maintain the
[land/premises/place of business] in a reasonably
safe condition.
A possessor has a duty to exercise ordinary
care to protect an invitee from unreasonable
risks of injury that were known to the possessor
or that should have been known in the exercise of
ordinary care.
*(A possessor must warn the invitee of
dangers that are known or that should have been
known to the possessor unless those dangers are
open and obvious. However, a possessor must warn
an invitee of an open and obvious danger if the
possessor should expect that an invitee will not
discover the danger or will not protect
[himself/herself] against it.) [Emphasis added.]
On the bases of the Restatement and Michigan law, I believe
M Civ JI 19.03 to be an accurate instruction.
For example, in Riddle v McLouth Steel Products Corp,
440 Mich 85; 485 NW2d 676 (1992), this Court made it clear
that the open and obvious doctrine is not an absolute bar
to liability. In Riddle, this Court noted that “where 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
5
behalf of the invitee.” Riddle, supra at 96 (emphasis
added). As the Minnesota Supreme Court has noted, § 343A’s
“unless” clause is a “crucial qualifier to the general
rule” of the Restatement. Sutherland v Barton, 570 NW2d 1,
7 (Minn, 1997).2 Thus, “[i]f the conditions are known or
obvious to the invitee, the premises owner may nonetheless
be required to exercise reasonable care to protect the
invitee from the danger.” Riddle, supra at 97.
It becomes obvious that the “special aspects” of a
particular condition may be a critical question in
determining whether liability should be imposed upon a
possessor in open and obvious danger cases. The majority
concludes that under its “special aspects” analysis, “the
fact-finder must consider the ‘condition of the premises,’
not the condition of the plaintiff.” Ante at 10. Although
this may be a relevant inquiry, the condition’s “special
aspects” are by no means dispositive. Additionally, solely
focusing on a condition’s “special aspects” reads the
“unless” clause out of Michigan premises liability law.
2
See also 1 Dobbs, Torts (2001), § 235, p 604 (The
Restatement view “has commanded almost complete acceptance
where it has been expressly considered.”); Prosser &
Keeton, Torts (5th ed, 1984), § 61, p 427 (“In any case
where the occupier as a reasonable person should anticipate
an unreasonable risk of harm to the invitee notwithstanding
his knowledge, warning, or the obvious nature of the
condition, something more in the way of precautions may be
required.”).
6
Rather, the “special aspects” endeavor must be made
within the framework set forth by the Restatement as
adopted by this Court. Thus, under Michigan practice,
other inquiries are required in making a liability
determination and a court’s analysis simply does not end
with the condition’s “special aspects.” Stated
differently, “The liability of an owner or occupier should
not be determined solely by the condition of the premises,
natural or artificial, but rather by the occupier’s conduct
in relation to those conditions—that is, considering all of
the circumstances, was due care exercised.” Littlejohn,
Torts [1974 Annual survey of Michigan law], 21 Wayne L R
665, 677-678 (1975). M Civ JI 19.03 recognizes this point
of law and, therefore, remains an accurate instruction.
Consider the following hypothetical example, an
elaboration of the facts presented in Sidorowicz v Chicken
Shack, Inc, 469 Mich 912; 673 NW2d 106 (2003). During
remodeling, a particular restaurant has a six-foot hole in
its floor. The restaurant owner decides it would be
beneficial to remain open during remodeling. The owner
conspicuously places large signs at the entrance and
throughout the restaurant indicating the presence of the
hole. The owner further places a giant red flag in the
center of the hole. Patrons can easily avoid the hole by
traveling down one of two alternate aisles. A blind person
7
enters the restaurant to grab a bite to eat. The owner
knows that the invitee is blind. The invitee is wearing
sunglasses, carries a white cane, has a sign around his
neck that reads, “I am blind,” and even orally states to
the owner, “I am blind and cannot see.”
The hole is properly considered a dangerous condition
on the land. Further, the condition would arguably be
considered open and obvious to a reasonably prudent person.3
Additionally, no “special aspects” exist in this situation
because the “average” person could easily avoid the
dangerous condition by taking an alternative route. Under
the majority’s approach, the analysis ends at this point
and the restaurant owner can never be held liable for
failing to warn the blind invitee or for failing to take
other actions to protect this person. This is true even
though the owner knows with near absolute certainty that
the invitee will be unable to protect himself and will
3
The Restatement defines a dangerous condition as
"obvious" where "both the condition and the risk are
apparent to and would be recognized by a reasonable man, in
the position of the visitor, exercising ordinary
perception, intelligence, and judgment." 2 Restatement
Torts, 2d, § 343A comment 1(b), p 219. Further, “[t]he
word ‘known’ denotes not only knowledge of the existence of
the condition or activity itself, but also appreciation of
the danger it involves. Thus the condition or activity
must not only be known to exist, but it must also be
recognized that it is dangerous, and the probability and
gravity of the threatened harm must be appreciated.” Id.
8
suffer physical injury. The prior decisions from this
Court, M Civ JI 19.03, the Restatement, and common sense
suggest that the owner may be held liable in this instance
despite the “obviousness” of the dangerous condition. This
point of law appears to have eluded the majority and I
would necessarily have to hold myself liable if I did not
warn its members of their obvious error.
In its assessment of the above hypothetical example,
the majority states, “By imposing an obligation upon a
homeowner or other premises possessor, not merely to make
his or her premises reasonably safe under ordinary
circumstances, but also under every conceivable
circumstance, Justice CAVANAGH in his concurrence/dissent,
. . . would impose a substantially increased legal burden
upon such persons.” Ante at 9 n 10 (emphasis added). I am
troubled by this assertion because, unlike the majority, I
do not believe that a blind person entering a restaurant is
an extraordinary or uncommon event. Moreover, I question
the wisdom of any rule of law that only applies under so-
called “ordinary” or idyllic circumstances. The
Restatement approach seeks to protect those who cannot
protect themselves, including the more than forty-three
million Americans with disabilities. Apparently, the
majority’s oversimplified Lugo approach takes a different
view.
9
In sum, I am troubled by the majority’s overreliance
on Lugo’s “special aspects” analysis. By focusing solely
on this analysis, the majority repudiates the Restatement
approach and, at the very least, unwisely eliminates the
“unless” clause from Michigan jurisprudence.
II. M Civ JI 19.05
I share in the concerns expressed by Justice Weaver
and likewise disagree with the majority’s decision to
revise M Civ JI 19.05 to solely reflect its Lugo standard.
In Quinlivan v The Great Atlantic & Pacific Tea Co, Inc,
395 Mich 244, 261; 235 NW2d 732 (1975), this Court stated,
“While the invitor is not an absolute insurer of the safety
of the invitee, the invitor has a duty to exercise
reasonable care to diminish the hazards of ice and snow
accumulation.” Such a duty requires “that reasonable
measures be taken within a reasonable time after an
accumulation . . . .” Id. M Civ JI 19.05 accurately
reflects the rule announced in Quinlivan and followed in
this state for nearly thirty years.4
In qualifying M Civ JI 19.05 with its Lugo standard,
the majority has added uncertainty to Michigan premises
4
M Civ JI 19.05 provides: “It was the duty of
[Defendant] to take reasonable measures within a reasonable
period of time after an accumulation of snow and ice to
diminish the hazard of injury to [Plaintiff].”
10
liability law. In response to the dissent, the majority
claims that Quinlivan “must be understood in light of this
Court’s subsequent decisions in Bertrand and Lugo.” Ante
at 14 n 13. However, neither Bertrand nor Lugo involved
the accumulation of ice and snow. Further, today’s
opinion, taken to its logical conclusion, could be read to
imply that any accumulations of ice and snow are
necessarily open and obvious dangers. Yet, in Quinlivan
this Court specifically rejected “the prominently cited
notion that ice and snow hazards are obvious to all and
therefore may not give rise to liability.” Quinlivan,
supra at 261. Thus, the majority creates unnecessary
tension with Quinlivan where none had existed before.
Additionally, even if the majority opinion is read
narrowly, i.e., that the Lugo qualification only applies
where it is first determined that the accumulation is open
and obvious, today’s approach significantly alters the duty
traditionally imposed upon possessors of land. Nothing in
Quinlivan suggests that an invitor must diminish the
hazards of ice and snow only if the accumulation involves
“special aspects” or is “unreasonably dangerous.” I share
in the concerns set forth by Justice Weaver regarding this
line of reasoning. Because M Civ JI 19.05 accurately
reflects Quinlivan and Quinlivan remains the law, I must
11
respectfully disagree with the majority’s decision to
revise this instruction in light of Lugo.
Michael F. Cavanagh
Marilyn Kelly
12
S T A T E O F M I C H I G A N
SUPREME COURT
ROGER MANN,
Plaintiff-Appellee,
v No. 120651
SHUSTERIC ENTERPRISES, INC,
Defendant-Appellant
and
BADGER MUTUAL INSURANCE COMPANY,
Defendant.
_______________________________
WEAVER, J. (concurring in part and dissenting in part).
I concur in the result only with the majority’s
decision to vacate the jury verdict for plaintiff.
I agree that, under the specific facts of this case,
the licensee’s knowledge of plaintiff’s intoxication is
irrelevant with regard to whether the bar breached its
common-law duty of care to plaintiff. However, I dissent
from the majority’s extension of the “special aspect test”
from Lugo v Ameritech Corp Inc, 464 Mich 512; 629 NW2d 384
(2001), to cases such as this one involving the natural
accumulation of snow and ice.1 The majority decision will
1
In Bertrand v Alan Ford, Inc, 449 Mich 606; 537 NW2d
185 (1995), a majority articulated a “special aspect” test
(continued…)
create confusion regarding every citizen’s duty regarding
accumulations of snow and ice.
Without explanation, the majority changes the law
regarding the duty of premises possessors to invitees with
respect to accumulations of snow and ice. Almost thirty
years ago, this Court in Quinlivan v The Great Atlantic &
Pacific Tea Co, Inc, 395 Mich 244, 260-261; 235 NW2d 732
(1975), recognized that although snow and ice accumulations
are obvious, the “rigorous duty” owed by invitors to
protect invitees from unreasonable harm justified the
imposition of a uniform duty on invitors regarding
accumulations of snow and ice. Quinlivan, therefore, held
that premises possessors owed a duty to invitees to take
“reasonable measures . . . within a reasonable time after
an accumulation of ice and snow to diminish the hazard of
injury to the invitee.” Id.
However, in this case the majority holds:
[W]hen such an accumulation is “open and
obvious,” a premises possessor must “take
(…continued)
for evaluating whether a danger was unreasonably dangerous
so as to avoid the application of the open and obvious
danger doctrine. In Lugo v Ameritech Corp Inc, 464 Mich
512; 629 NW2d 384 (2001), a majority transformed the
“special aspect” test by introducing a new standard that
focuses on the severity of possible harm to define what
“special aspects” might create an unreasonable risk of
harm.
2
reasonable measures within a reasonable period of
time after the accumulation of snow and ice to
diminish the hazard of injury to [plaintiff]”
only if there is some “special aspect” that makes
such accumulation “unreasonably dangerous.” Ante
at 13.
With this, the majority overrules Quinlivan. The majority
says that it is “unprepared to hold that, absent any
special aspects, and absent consideration of the open and
obvious nature of a hazard, a homeowner or other premises
possessor owes an absolute duty to an invitee to diminish
the hazards attendant to the accumulation of ice and snow.”
Ante at 14 n 13.
While Quinlivan clarified a premises possessor’s duty
regarding all snow and ice accumulations, the majority
confuses this area of premises liability law by holding
that some kinds snow and ice are more dangerous than
others. Now, in cases involving snow and ice, it must
first be established that the accumulation was open and
obvious. Most such accumulations will, by the very nature
of an accumulation, be open and obvious.2 Thus, most snow
and ice cases will then be subjected to Lugo’s special
aspect test. Now, unless there are “special aspects” to an
2
Because the majority fails to explain the nature of a
premises possessor’s duty regarding accumulations of snow
and ice that are not open and obvious, we must await the
inevitable black ice case to fully understand and assess
the majority’s decision to overrule Quinlivan.
3
accumulation of snow and ice creating a risk of “severe
harm,” a premises possessor owes no duty to take reasonable
measures within a reasonable time to protect invitees from
the danger. One can readily anticipate nuanced debate and
inconsistent conclusions regarding whether an accumulation
of snow was heavy or light, wet or dry, hard-packed or
fluffy, etc. and just how those varied conditions affected
the unreasonableness or severity of harm posed by a given
accumulation.
In Michigan, where accumulations of snow and ice
abound, every citizen’s duty with respect to all
accumulations of snow and ice should be unambiguous.
Changes by this Court regarding that duty should be well-
reasoned and obvious. Lugo did not involve an accumulation
of snow and ice.3 The majority should not extend Lugo’s
3
The majority incorrectly suggests that my position in
this case is inconsistent with my position in Lugo. In
Lugo at 546 (WEAVER, J., concurring), I said that the Lugo
majority was wrong to change the law and should have
remained true to well-established articulations of the open
and obvious doctrine. Today, I again reject the majority’s
decision to change the law, this time regarding
accumulations of snow and ice, because I would affirm
Quinlivan’s articulation of duty in snow and ice cases. As
I explained in Bertrand, supra at 625 (WEAVER, J., concurring
and dissenting), under Quinlivan, snow and ice accumulation
cases were essentially exceptions to the open and obvious
doctrine. I would continue to distinguish snow and ice
cases from other premises defects and encourage the
(continued…)
4
“special aspect” test to this context and should not
overrule Quinlivan and leave to the fact-finder the
confusing task of distinguishing between differing types of
snow and ice accumulations.4
Therefore, I dissent from the majority extending the
Lugo “special aspects” test to accumulations of snow and
ice. I concur only in the decision of the majority in
vacating the jury verdict for plaintiff because, under the
facts of this case, the licensee’s knowledge of plaintiff’s
intoxication is irrelevant to whether the bar breached its
common-law duty of care to plaintiff.
Elizabeth A. Weaver
(…continued)
majority to stop destabilizing the law of premises
liability.
4
Because I continue to disagree with the evolution of
the “special aspects” test, I would not amend M Civ JI
19.03 to incorporate it. See Bertrand, supra at 625-626
(WEAVER J., concurring and dissenting) and Lugo, supra at 544
(WEAVER J., concurring). Similarly, for the reasons stated
above, I would not amend M Civ JI 19.05 regarding the duty
of premises possessors to take reasonable measures within a
reasonable time regarding accumulations of snow and ice.
5