LANSING, Mich. (Legal Newsline) - That a tripping hazard is "open and obvious" matters but isn't the only test to determine if a landowner is liable for injuries, the Michigan Supreme Court said.
The court found July 28 that some open and obvious hazards are unavoidable, which can constitute a breach of a duty to protect invitees from unreasonable risks of harm. The ruling overturns lower court decisions in two cases, including a woman who slipped on snow in a gas station parking lot as she tried to go inside to pay.
The Supreme Court overturned a 2001 decision called Lugo that held if a danger is open and obvious, the plaintiff must provide evidence of "special aspects of the condition" that would create a duty of care owed by the landowner.
"First, we overrule Lugo's decision to make the open and obvious danger doctrine a part of a land possessor's duty," the decision says.
"Rather, we hold that the open and obvious nature of a condition is relevant to breach and the parties' comparative fault.
"Second, we overrule the special-aspects doctrine and hold that when a land possessor should anticipate the harm that results from an open and obvious condition, despite its obviousness, the possessor is not relieved of the duty of reasonable care."
One of the two cases concerned a woman who stopped for gas on a snowy evening. She walked inside to pay in advance with cash, but her path was covered in snow and was not shoveled or salted.
She slipped and fell and was injured, then sued. F&E Oil countered that the snow was an open and obvious hazard and won summary judgment in the trial court.
The other case had a grocery shopper checking out at Kroger needing to return an open bag of flour to the store's shelves. She tripped over a "thin cable" at one of the checkout lines that was placed there to indicate that line was closed.
The cases will go back to their trial courts, where judges will decide whether the defendants breached the duty the owed the injured plaintiffs.
Justice David Viviano, joined by Justice Brian Zahra, disagreed with imposing a duty to protect when a condition is open and obvious. Viviano wrote the open and obvious doctrine had served the state since the 1800s and protected property owners from liability for hazards that were easy to see, like snow or ice.
"Given the nature of such conditions, it was rightly thought that those who enter the property of another would detect obvious hazards and avoid them if possible," he wrote.
"After today, however, all those who possess real property in Michigan can no longer rely on this commonsense notion. Instead, obvious hazards on the land - including snow and ice - must immediately be rectified by property possessors or they will be subject to civil liability.
"After (or perhaps even during) every snowstorm, property owners and possessors must now find a way to shovel, salt and clear their properties of snow and ice, lest they be sued by individuals who choose to confront these clearly dangerous conditions."