The Open and Obvious Rule
This is the definitive case that controls almost all premises liability claims in Michigan, such as slip-and-fall and trip-and-fall cases. Lugo v. Ameritech, 464 Michigan 512; 629 N.W.2d 384 (2001), greatly expanded the application of the “open and obvious” defense, allowing premises owners and persons with possessory control over a building to escape liability, even when a dangerous condition existed.
Facts of the Case:
The case itself is very straight forward. The plaintiff was walking through a parking lot to pay a telephone bill when she stepped in a pothole and fell. She testified she was not watching the ground as she walked, and nothing would have prevented her from seeing the pothole if she had been looking down.
The Michigan Supreme Court held that the pothole was “open and obvious,” and because defendant premises owners do not owe a duty to warn of open and obvious conditions, they are not responsible injuries arising out of the condition.
The court evaluated prior case law which held a premises possessor owes a duty to an invitee, like a customer, to exercises reasonable care to protect that person from an unreasonable risk of harm caused by a dangerous condition on the land. Bertrand v. Alan Ford, Inc. 449 Mich 606, 609, 537 N.W.2d 1985 (1995). However, that duty does not extend to the removal of open and obvious dangers.
The Court went on to rule:
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.
However, the Supreme Court severely limited when a special aspect exists to impose liability on an open and obvious condition. The Court found there are two different situations when a special aspect may exist:
- When the condition is effectively unavoidable.
- When an open and obvious condition may be unreasonable dangerous because of special aspects that impose an unreasonably high risk of severe harm.
The Court went on to give examples that would give rise to a special aspect, thus imposing liability on a premises owner. However, these examples were so rare and far-fetched, it essentially eliminated any special aspect exception to the open and obvious rule.
Effective Unavoidable Conditions:
The Court’s illustration of an effectively unavoidable condition is a commercial building with only one exist for the public where the floor is covered with standing water. While the water is open and obvious, a customer wishing to exist the store must encounter the water to leave the store.
Over the last 20+ years, Michigan appellate courts and trial courts have utilized this example to greatly limit the scope of the “effectively unavoidable” exception to the open and obvious rule. For example, if a customer has more than one door he or she could have used when encountering a dangerous condition, like a snow-covered parking lot, then the condition is not effectively unavoidable.
In other cases, if a customer was injured after slipping on black ice at night in a mall parking lot, there was no special aspect. The danger was not effectively unavoidable because the injured customer could have simply chosen a different day to shop at the store.
Unreasonable Dangerous Conditions:
The Court’s illustration of an “unreasonable dangerous condition” is fanciful and severely limited its application in real life. The Court stated a person who falls into an unguarded 30-foot pit may be able to show this open and obvious condition was unreasonable dangerous because it presents a substantial risk of death or severe injury. However, this example was not realistic (how many 30-foot pits have you ever come across).
Instead, the Court went on to rule that a pothole “does not present involve an especially high likelihood of injury” and has “little risk of severe harm.” The Court made this determination despite the fact thousands of people are severely injured and hundreds die each year in the United States from simple trip-and-falls.
Lugo v. Ameritech made it extremely difficult to pursue personal injury claims against a premises owner, such as a store owner or homeowner, for situations involving a slip and fall. If a store owner maintains a parking lot filled with potholes, the store owner will never face liability because the pothole is “open and obvious” and there to be seen. In fact, the store owner gets rewarded for making the parking lot dangerous because the more potholes there are, the more open and obvious the conditions become.
Michigan courts have extended the “open and obvious” rule to include situations that don’t even appear to be open and obvious. For example, cases involving “black ice” have been held to be open and obvious because the plaintiff should understand that cold weather can lead to icy conditions, even if the ice is invisible due its darkness. In another case, a leaf covered hole was held to be “open and obvious” despite the fact the leaves covered the hole in the first place. Although slip and fall cases are difficult to pursue under current Michigan law, it is worth consulting an experienced Michigan slip and fall lawyer so you find get your questions answered and find out your rights.