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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

A homeowner's open and obvious doctrine defense does not require guests to turn the lights on and improve visibility of an impending hazard.

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In <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20170131_C328929_21_328929.OPN.PDF" target="_blank" rel="noreferrer noopener">Blackwell v Franchi, No. 328929</a>, Plaintiff attended a dinner party at Defendants' home. Plaintiff went to put her purse in Defendants' darkened mud room and fell off an eight inch drop-off step upon entry, injuring herself. Plaintiff filed suit alleging that Defendants had a duty to warn her of the hidden peril. Defendants moved for summary disposition under MCR 2.116(C)(10) (no genuine issue of material fact) alleging the step was open and obvious; therefore, Defendants had no duty to warn of the hazard, and further that a light switch outside the mud room would have illuminated the hazard. The trial court granted defendants' motion.

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The open and obvious doctrine provides that "if the particular activity or condition creates a risk of harm only because the invitee [or licensee] does not discover the condition or realize its danger" then liability is cut off "if the invitee [or licensee] should have discovered the condition and realized its danger. Bertrand v. Alan Ford, Inc., 449 Mich 606, 611; 537 NW2d 185 (1995).  The Court of Appeals considered the question of whether Plaintiff should have discovered the step, which further turned on analysis of whether "an average user with ordinary intelligence acting under the same conditions would have been able to discover the danger and the risk presented by the condition upon casual inspection." Grandberry-Lovette v Garascia, 303 Mich App 566, 577-578; 844 NW2d 178 (2014).

The Court of Appeals reversed. After considering the testimony from Plaintiff and several others, the Court of Appeals determined that a genuine issue of material fact existed as to whether the step was open and obvious. Further, the Court of Appeals noted that the "open and obvious doctrine focuses on the condition of the premises and the hazard as [it] existed at the time plaintiff encounters [it]," Novotney v Burger King Corp, 189 Mich App 470, 475; 499 NW2d 379 (1993), and no additional duty extends to the plaintiff to take reasonable steps to improve visibility of a hazard.

Judge K.F. Kelly <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20170131_C328929_23_328929D.OPN.PDF" target="_blank" rel="noreferrer noopener">dissented</a>, opining that the question to be analyzed was whether the dark room was open and obvious, not whether the step was open and obvious. Judge Kelly noted that Plaintiff claimed the step was dangerous because it was "unknown"; however, Judge Kelly opined that the step "was unknown because Plaintiff purposely entered a dark room to confront unidentified dangers" and that the danger was not the stairs, but the dark room itself.

Judge Gleicher <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20170131_C328929_22_328929C.OPN.PDF" target="_blank" rel="noreferrer noopener">concurred</a> only to respond to Judge Kelly's dissent, citing the seminal case of Lugo v Ameritech Corp, Inc., 464 Mich 512, 516; 629 NW2d 384 (2001) in that the duty of a premises possessor relates to risks of harm "caused by a dangerous condition on the land," noting that the dangerous condition of the land, in this case, was the step, not the darkness.

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Jason L. Byrne

Labor and Employment

When throwing a dinner party at your home, keep all your lights on to avoid premises liability suits.

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When throwing a dinner party at your home, keep all your lights on to avoid premises liability suits.

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