On July 31, 2012, the Michigan Supreme Court issued an opinion in Hoffnerv Lanctoe, (2012), (Docket #142267) limiting the "effectively unavoidable" exception to the open and obvious doctrine in premises liability cases. While the conservative Supreme Court continues to whittle away Plaintiff's rights in
premises liability cases, it would appear that an argument could be made that the ruling should be narrowly construed to a limited set of facts.
In Michigan, a possessor of land owes a duty to exercise reasonable care to protect others from an unreasonable risk of harm caused by a dangerous condition on the land. This particular duty applies to persons who enter the land for business purposes only. However, when the condition is known or is visibly open and obvious, this duty does not apply. This is known as the open and obvious doctrine and many lawsuits are dismissed because it. An exception to the open an obvious doctrine exists when the dangerous condition is "effectively unavoidable." The Michigan Supreme Court previously gave an example of a condition that would be "effectively unavoidable" in Lugo v Ameritech Corp, 464 Mich 512; 629 NW2d 384 (2001), stating "a commercial building with only one exit for the general public where the floor is covered with standing water. While the condition is open and obvious, a customer wishing to exit the store must leave through the water."
In the recent case, Hoffner, the Plaintiff went to her fitness center where she had a paid membership. When she arrived at the fitness center, the sidewalk at the only entrance to the fitness center was icy and there was no ice-free path into the fitness center. Plaintiff stated that she could see the ice and was aware of the condition. Despite it being visibly obvious, the Plaintiff felt she could safely cross the ice and enter the fitness center. Instead, she fell, sustaining injuries.
Because the Plaintiff testified that she could see the ice, the dangerous condition was clearly open and obvious. Therefore, the possessor of the premises owed no duty to the Plaintiff unless the hazard was effectively unavoidable. Both the trial court and the Court of Appeals determined that the hazardous condition was effectively unavoidable because there was no clear path into the fitness center and because of her contractual right to enter the premises as a pre-paid member of the fitness center. By exercising her contractual right to enter and use the facility, the courts reasoned she was forced to confront the hazardous condition.
The Michigan Supreme Court disagreed and reversed the decision of the Court of Appeals. The Court indicated that having a paid memberships or some other right to use services does not create an "unquestionable necessity to enter a business, thereby making any intermediate hazard 'unavoidable'…Neither possessing a right to use services, nor an invitee's subjective need or desire to use services, heightens a landowner's duties to remove or warn of hazards or affects an invitee' choice whether to confront an obvious hazard."
It is arguable that this opinion of the Michigan Supreme Court should be narrowly construed to apply only to situations where a plaintiff is not trapped, where there are other danger-free paths for the Plaintiff to take. It should not apply where the Plaintiff is trapped but chooses to confront the danger such as the where an obvious danger blocks the only exit of a commercial building. If you are injured in a slip and fall or trip and fall accident, contact a personal injury attorney at Freedman & Freedman to discover how Michigan's personal injury laws apply to you.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice please contact Freedman & Freedman or an attorney in your community who can assess the specifics of your situation.