Michigan Appeals Court Holds Sidewalk Hazard Open and Obvious

OLYMPUS DIGITAL CAMERAHolding the sidewalk hazard at issue to be “open and obvious as a matter of law,” the Michigan Court of Appeals recently reversed a trial court’s order denying a defendant’s motion for summary disposition under Michigan Court Rule 2.116(C)(10).

The incident arose when Nicole Eaton attended the Clinton Fall Festival, organized by the defendant (“Festival”). Eaton fell en route to the hospitality center furnished by Festival, on the property owned by defendant Frontier Communications (“Frontier”). Eaton was walking toward the hospitality tent when her foot hit an uneven portion of the private sidewalk, causing her to fall and break her elbow.

Eaton filed a premises liability lawsuit against defendants Festival and Frontier. The defendants moved for summary disposition, arguing that the uneven sidewalk was an open and obvious danger, which is a defense to premises liability actions. The plaintiff argued that the angle from her approach to the sidewalk and the color of the sidewalk caused the several-inch height difference to be unnoticeable, or not obvious. The trial court agreed with the plaintiff without analysis, finding that the question should be submitted to a jury. Festival appealed the denial.

On appeal, Eaton again asserted that the sidewalk defect was not open and obvious, based on the angle of her approach and the coloring of the sidewalk, which made the sidewalk’s offset invisible from her position upon casual inspection. The appeals court disagreed.

The plaintiff testified that she approached the sidewalk at an angle and that she was not looking down because her attention was focused on the hospitality tent. But precedent dictates that a plaintiff’s failure to see a hazardous condition does not mean it can’t also be open and obvious because the test is objective. In Eaton’s case, the defendants presented evidence from two individuals who viewed the sidewalk after the fall and reported that they thought the defect would be plainly visible upon casual inspection. Even Eaton herself admitted that afterward she did not have to point out to people where she tripped because it was “obvious.” Additionally, the photographs admitted into evidence plainly revealed a striking difference between the heights of the two sidewalk slabs.

The appeals court rejected the plaintiff’s argument that other witnesses and photographs were not applicable because they did not capture the perspective of an objective person from Eaton’s point of view. The court disagreed for two reasons. First, the submitted photographs showed the hazard to be clearly visible. The fact that no photograph was taken from Eaton’s exact position was not dispositive. Given that uneven sidewalk slabs are common, a reasonable inference can be made as to how the hazard would have appeared from a different angle. If Eaton wanted to show exactly how the view appeared from her perspective, she could have provided it herself. The only evidence the plaintiff presented that purported to demonstrate that the hazard was undetectable from her vantage point was her own testimony. However, she admitted she was not looking down at the sidewalk when she approached it. In sum, all of the relevant and admissible evidence demonstrated that an average person would have discovered the hazard upon casual inspection.

The court also rejected Eaton’s arguments that Festival committed active negligence by inviting festival attendees onto defective and dangerous land. Eaton made this distinction because the open and obvious doctrine does not apply to ordinary negligence claims. The court of appeals found, however, that the plaintiff’s claim was one of premises liability and not ordinary negligence because her injuries resulted from a condition on the land and not from any overt act by Festival. Since Eaton’s claim was solely grounded in premises liability, the open and obvious analysis applied.

Concluding that the hazard was open and obvious as a matter of law, the appeals court reversed and remanded for the trial court to enter an order granting summary disposition for the defendants.

Personal injury lawyer Kelly Neumann at the Neumann Law Group represents victims of accidents throughout Michigan from offices in Traverse City and Grand Rapids. Call us at (231) 463-0122 or at (616) 717-5666 for a free consultation.

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