An important case that involves the open and obvious rule in Michigan came down from the Michigan Supreme Court. The case is Livings v. Sage Investment Group, LLC and discusses the open and obvious rule and exceptions to it.
Review the case here: https://law.justia.com/cases/michigan/supreme-court/2021/159692.html
In the case, Ms. Livings was an employee of a restaurant in Eastpointe, Michigan. The weather that morning was awful, with snow and ice covering both the customer parking lot and the parking lot where staff was ordered by management to park. When she arrived to work, she parked about 70 feet from the back door of the restaurant. The company that owns the property (not the restaurant), had failed to remove the snow and ice. While walking into work, Ms. Livings slipped and fell, sustaining multiple injuries that led to three surgeries.
Ms. Livings sued the property owner under a premises liability theory, claiming it failed to protect her from the dangerous accumulation of ice and snow in the lot. The defendant moved to have the case dismissed, arguing that snow and ice is “open and obvious”, and that Ms. Livings could have avoided the ice and snow if she had parked elsewhere or used a different door. The court denied the motion and the defendant appealed.
The Michigan Court of Appeals affirmed the trial court’s ruling in a split decision. The court said the ice and snow was open and obvious, but because the front and rear lots were covered with snow, there was a genuine issue of material fact whether the hazard was effectively unavoidable. Interestingly, the dissenting judge (Judge Tukel) said the condition was not effectively unavoidable because she simply “could have skipped work and suffered the consequences to her employment.” The majority disagreed with this and allowed the case to continue.
The Michigan Supreme Court again affirmed the lower court’s decision, holding that the hazardous condition that caused Ms. Livings’ injuries were effectively unavoidable, and thus the open and obvious rule did not dismiss the duty of the property owner. Because the property owner still had a duty, Ms. Livings could go forward with her case of proving negligence on the part of the property owner, Safe Investment Group.
To understand the significance of this case, it is important to understand Michigan slip and fall law or premises liability.
What Do You Have to Prove in a Slip and Fall Case?
Under Michigan law, the injured person in a premises liability lawsuit must prove the elements of negligence. This includes showing (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff’s injury and (4) the plaintiff suffered injuries.
Under Michigan law, a premises owner 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. In addition, if the landowner knows, or by exercise of reasonable care should have known of the dangerous condition, and realizes this condition involves an unreasonable risk of harm to invitees, then the landowner can be held responsible.
But this duty does not extend to dangers that are open and obvious. This is because such dangers, by their nature, apprise an invitee of the potential hazard, which the invitee may then take reasonable measures to avoid.
So cases where people slip and fall or trip and fall over something that is there to be seen, like a pothole or a snow and ice in a parking lot, is considered open and obvious and the landowner is not responsible for getting rid of these dangerous conditions.
This reality has eliminated most slip and fall cases in Michigan. However, there are two exceptions where a landowner can be held accountable for even an open and obvious condition. Those conditions are called “special aspects” and they include a hazard that is (1) unreasonably dangerous and (2) effectively unavoidable.
What Does the Supreme Court in Livings v. Sage Investment Group, LLC Say?
The Livings case involved this second special aspect, unavoidability. In analyzing prior Michigan Supreme Court cases, such as Lugo v. Ameritech, 464 Mich 512; 629 NW2d 384 (2001) and Hoffner v. Lanctoe, 492 Mich 540, 459; 821 NW2d 88 (2012), the Court said it had never considered the “effectively unavoidable” standard in the context of somebody’s employment.
Under Hoffner, which is an older Michigan Supreme Court ruling that is still in effect, the standard for “effectively unavoidability” is that a person, for all practical purposes, must be required or compelled to confront a dangerous hazard. If a person has a choice of whether to control the hazard, then hazard is not truly unavoidable.
However, the court in Livings differentiated this situation from Hoffner. The plaintiff in Hoffner slipped and fell on snow and ice when going to a gym to work out. In this case, the plaintiff was just trying to get to her job. Explaining that employment is a relevant factor in analyzing if a hazard is effectively unavoidable, the Court held:
In Michigan, it is reasonable to anticipate that many businesses will remain open even during bleak winter conditions. A landlord cannot expect that every one of its tenant’s employees will be permitted to stay home on snowy days. Therefore, it is reasonable to anticipate that a person will proceed to encounter a known or obvious danger for purposes of their work. Accordingly, an open and obvious hazard can become effectively unavoidable if the employee confronted it to enter their workplace for work purposes.
The Court went on to say that this new standard will depend on the facts of the case, including whether the employee would need to breach the employer’s policies to avoid the condition and whether alternatives were available.
However, the Court stated in no uncertain terms that a trial judge cannot conclude that a hazard is avoidable “simply because the employee could have elected to skip work or breach other requirements of their employment.”
The Effect of the Livings v. Sage’s Investment Group, LLC Decision:
Although the ruling of this case is somewhat narrow, the decision marks a big change in Michigan premises law. In effect, this is the first “pro-plaintiff” ruling by the Michigan Supreme Court in over 20 years on a slip and fall or premises case. No longer can insurance companies and their defense attorneys simply expect to win every slip and fall case that comes down from the Michigan Supreme Court.
More importantly, it provides relief for people like Ms. Livings, who was injured while simply trying to get to her job on time, despite the poor weather conditions that the property owner and property manager failed to clean up.
It will be interesting to see if this ruling applies to situations outside of a plaintiff’s employment. The Court did focus on the employment aspect and being forced to encounter a dangerous condition in fear of losing one’s job.
However, the Court also said whether the condition is effectively unavoidable has to be analyzed from the claimant’s perspective, and that alleged alternatives have to be reasonable. For example, our office once had a defendant argue that our client could have climbed out of her car through the sunroof, or over the console in a skirt to go out the passenger side door of her car rather than get out of her car on the driver’s side in an icy area. Another defendant argued that a tenant could have walked out the back door and around the whole building to get to her car rather than use the front door to the parking lot.
Will the ruling in Livings be applied to these situations, which do not involve a person’s employment? It remains to be seen.
But make no mistake, this is important case and one that plaintiff’s and the general public should celebrate. It’s a victory for individuals like Donna Livings, who had to undergo multiple surgeries because the property owner failed to get rid of the snow and ice in its parking lot before she got to her job. It’s also a victory for public safety in an era where public safety is not invested in and ignored.
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The Lee Steinberg Law Firm and its staff of Michigan slip and fall lawyers have been successful in getting around this awful rule and assisting our clients.
For example, we recently helped a client obtain a settlement for over $400,000 after a slip and fall.
Call the Lee Steinberg Law Firm at 1-800-LEE-FREE (1-800-533-3733) for a free consultation. We can answer your questions and let you know if you have a case. And we never change a cent until we win your case. Call us free today.
