Michigan Appellate Court Rules Question of Whether Dangerous Condition Was Open and Obvious Should Go To Jury

The Michigan Court of Appeals recently held that the lower court erroneously granted summary judgment to the defendants following the plaintiff’s fall at the defendants’ home, reasoning that the conflicting evidence regarding whether the dangerous condition was open and obvious should be sent to a jury.One evening in December 2013, the plaintiff attended a dinner party at the defendants’ home. The home includes a hallway that leads from the front door to the living room and dining room area. There are two rooms on each side of the hallway, a bathroom and a mud room. There is an approximately eight-inch drop-off as one steps into the mud room from the hallway. The plaintiff went to put her purse in the mud room and fell upon entry as a result of the drop-off. She was injured and filed suit. The defendants moved for summary disposition, arguing that the drop-off was open and obvious, and therefore, they had no duty to warn the plaintiff of its existence. The trial court granted the defendants’ motion. The plaintiff appealed.

In reversing, the appeals court first outlined the open and obvious doctrine, which provides that if the particular activity or condition creates a risk of harm only because the invitee does not discover the condition or realize its danger, liability is cut off if the invitee should have discovered the condition and realized its danger. As a general rule, a drop-off, like a step, does not in and of itself create a risk of harm, since if it is seen, a reasonable person can readily traverse it without incident. In this case, however, the plaintiff argued that the danger from the drop-off arose because she did not discover the condition or realize its danger. Thus, the question was whether the plaintiff should have discovered the condition and realized its danger.

Whether the plaintiff should have discovered the drop-off, the appeals court reasoned, turned on 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 a casual inspection. If so, the condition is open and obvious, and no duty to warn arises. A defendant is entitled to summary disposition on the basis of the open and obvious doctrine if the plaintiff alleges that the defendant failed to warn of the danger, yet no reasonable juror would find that the danger was not open and obvious. In order for a plaintiff’s claim to survive a defendant’s motion for summary disposition on open and obvious grounds, the plaintiff must provide sufficient evidence to create a genuine issue of material fact that an ordinary user upon casual inspection could not have discovered the existence of the condition.

Thus, the court had to determine whether, based on the evidence presented, there was a genuine factual dispute regarding whether an average user of ordinary intelligence acting under the conditions as they existed at the time the plaintiff encountered the drop-off would have been able to discover it on casual inspection.

The plaintiff presented evidence in the form of deposition testimony from several other party guests, establishing that the drop-off into the mud room was not discoverable upon casual inspection at the time she encountered it. Another guest testified that she was walking with the plaintiff when she fell. She testified, “[w]e didn’t realize that there was a step down because there [were] no lights in that particular room.” She further testified that “you could not see that there was a level down” and stated that “[i]t just looked like it was straight across.” The guest also stated that had she been walking ahead of the plaintiff, she likely would have fallen.

Another guest corroborated this description of the mud room entrance, testifying at her deposition that the hallway into the mud room looked level and that the height differential could not be seen. She described the mud room as “very dark.” Additionally, while the deposition testimony of the guests was not unanimous as to the lighting condition of the hallway adjacent to the mud room, everyone, including the defendant, was in agreement that the light inside the mud room was turned off at the time of the plaintiff’s fall. The photographs submitted by the parties also demonstrate that the drop-off is not easily seen, even with sufficient lighting.

The testimony and photographs, the appeals court reasoned, clearly demonstrated a question of fact regarding whether an average user acting under the conditions existing when the plaintiff approached the mud room would have been able to discover the drop-off upon casual inspection. The plaintiff adequately asserted that given the absence of lighting, the drop-off could not be seen by an average person and presented sufficient evidence through the testimony of third parties and photographs to support that assertion.

The defendants argued that the drop-off or height differential was open and obvious because the plaintiff could have turned on a light switch that was located at the entry to the mud room that would have illuminated the mud room. However, the court held this was not a duty question but was instead a question of comparative negligence. The open and obvious doctrine focuses on the condition of the premises and the hazard as they existed at the time the plaintiff encountered them. There is no additional requirement that the plaintiff take reasonable steps to improve the visibility of the alleged hazard. The defendants’ argument that the plaintiff should have discovered and turned on the light switch was not merely a statement that the plaintiff should have looked where she was going but was a statement that she should have altered the premises’ condition by turning on the lights.

Since the determination of whether the defendants owed the plaintiff a duty to warn of the drop-off would depend on how the conflicting testimony regarding whether the drop-off was open and obvious was resolved, the court held the conflicting testimony must be submitted to the jury, and the trial court’s grant of summary disposition to the defendants was erroneous.

The premises liability attorneys at the Neumann Law Group represent injured people 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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