Cameron Getto

Michigan’s ultra-conservative courts are at it again.

Michigan's ultra-conservative courts are at it again. This time, the Michigan Court of Appeals has deemed hidden dangers to be "open and obvious." Yep, you read that right. Hidden dangers are both "open" and "obvious." We have crossed over into Wonderland, folks. In the area of premises liability, you can no longer rely on the rule of law to hold dangerous, stupid and negligent people accountable for their dangerous, stupid and negligent conduct.

For context, here's a quick primer on premises liability. Generally, people who make money from you coming onto their premises (land, building, store, etc.) have a duty to exercise reasonable care in protecting you from an unreasonable risk of harm created by a defective condition on their premises or land. The idea is that they are familiar with the premises (they own it), you are not (you come only periodically to shop), and the burden ought to be on them to make sure the place doesn't collapse while you're in it. Seems simple enough. Seems like a fair place to draw the line.

As a practical matter, this means that the owner of the premises will be held responsible if s/he cuts a hole in the floor and covers it with a carpet, causing you to fall into the basement when you step on what looks like carpet on the floor. It also means that business owners must follow city codes so that when you grab the hand rail to the steps, you can be assured that it does not contain a gazillion volts of live electricity. Until this week, it also meant that when crossing a parking lot, you were entitled to walk without worrying that the concrete might crumble under your feet the moment you put weight on it.

Of course, there's accountability on both sides. We have another judge-created law that protects premises owners from defects that are "open and obvious." In other words, if upon casual inspection you would detect the potential danger, or, for example, the reason you fell or were injured was because you weren't paying any attention to where you were going, then you can't blame the premises owner.

On April 15, 2008, a panel of Michigan's Court of Appeals handed down the latest of a long line of opinions that have slowly inched the line away from people who have been injured by negligence toward complete protection for business owners for their negligent failures to protect from hidden dangers. The new case, Baker vs. Tendercare, involved a woman who was visiting her mother at Tendercare's nursing home. As she exited her car and began to walk into the facility, she stepped on a portion of concrete that had a crack on it that appeared harmless. Unbeknownst to her, the concrete was crumbling and in poor condition. The concrete crumbled, she fell, and she was badly hurt when her head hit the side of a car and she broke her wrist.

Tendercare tried to have the case dismissed without the benefit of a trial (in which Tendercare would have been entitled to present evidence and argue it was not responsible). Let me put that another way: All this woman wanted was her day in court to try and prove to a jury that Tendercare was negligent. Tendercare was fully able and entitled to defend itself. Instead, the Court of Appeals used this opportunity to slam the courthouse doors in the injured woman's face. In analyzing the case, the Court of Appeals had the audacity to state:

Just because the defect is hidden does not also mean that it is not discoverable by the average user.

Translation for non-lawyers: Premises owners shouldn't have any real duty to protect you from hidden dangers, even if they know about them or ought to know about them. If you, at each and every step, could conceivably stoop down and, upon inspection, see a potential defect that might cause you to fall, then they have no responsibility whatsoever, even if the condition is dangerous, hidden, and they knew or should have known about it.

Trouble is, nobody conducts themselves in such a manner. Business owners obtain insurance so that the risk is pooled and taxpayers don't end up paying the tab for negligent injuries. We have city codes and standards to make parking lots and sidewalks uniform. One of the reasons that we make them uniform is to make it easier to see a defect, no doubt because we would prefer to prevent these injuries. Yet our courts now hold you and I responsible for the defects that we would never see unless we either already knew of them, or were specifically attempting to detect them.

Yet again, our conservative Michigan judiciary ignores human behavior, reality, and instead confers a new benefit upon the business community at the expense of individuals.

Cameron Getto: Author Bio | Other Posts
Posted at 11:29 AM, Apr 17, 2008 in Increasing Safety | Liability Immunity
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"[T]he Michigan Court of Appeals has deemed hidden dangers to be 'open and obvious."

Cameron, we musn't mistake the literal meaning of "open and obvious" with the *legal* meaning. Legally speaking, "[a]n open and obvious condition is one that an average person of ordinary intelligence would be able to discover upon casual inspection." Thus the talisman is *discoverability,* which is why the court stated that just because something is hidden doesn't mean it's not discoverable. To me, this doesn't seem too "audacious" a proposition.

As some explanatory background, in any tort suit for negligence, including premises liability, the plaintiff bears the burden of proof with regard to the presentment of evidence supporting an essential element of the claim (the "burden of production"). Otherwise, you get thrown out on summary judgment.

Here, the plaintiff, who broke her wrist when she tripped on loose concrete, had the burden of showing that the peril was *not* open and obvious -- that is was not something that a person of average intelligence could have discovered. She failed to do so:

"[P]laintiff admitted that she never saw the crack that caused the fall...Neither party has produced any photographs of the disputed area in the condition that caused the fall...Plaintiff also does not dispute that the crack in the pavement was plainly visible...Plaintiff presents no other documentary evidence in support of her description of the pavement...Plaintiff’s contemporaneous description of the event made no mention of crumbling concrete.

In sum, I have to disagree that this case necessarily means we've "crossed over into Wonderland" or that this is somehow a "new benefit."

Posted by: Lawyer | April 17, 2008 1:35 PM

Up until the Lugo court completely redefined the applicable duty (which concerned "hidden" danger), O & O was considered an exception. Now, in the aftermath of Lugo and dozens of unpublished COA decisions, what was once an exception has completely swallowed the rule.

Casual inspection means just that, casual. If you want to talk about what terms mean, then take a look at the definition of casual:

Happening by chance; fortuitous.

Without definite or serious intention.

Being without formality.

Interestingly, it does not mean getting down on the pavement and poking and prodding a crack that looks harmless, or testing it prior to walking on it. That kind of a rule isn't practical, it doesn't follow actual human behavior, and it doesn't serve the purpose of ensuring premises owners are reasonably diligent in their inspections and maintenance of their premises, particularly their parking lots, walkways and steps. Yet, that's pretty much how it is now that the SC has gutted prior protections for individuals.

The only discussion about reasonableness these days, it seems, is in the context of how unreasonable it is to try and hold someone accountable for failing to maintain their premises.

Interesting how the SC will get their dictionaries out when doing so helps kick a plaintiff's case, but they seem to ignore these dictionary definitions when doing so requires keeping the case alive.

Posted by: Cameron Getto | April 17, 2008 4:44 PM

Your statement "our conservative Michigan judiciary ignores human behavior, reality, and instead confers a new benefit upon the business community at the expense of individuals." seems to disprove itself. Human behavior is to blame someone else for our own failings, the reality is attorneys profit by it, so the court is actually considering these factors and attempting to bring the whole "slip and fall" crisis into check. It is time for the term "resonable" to be defined.

Posted by: throckmorton | April 18, 2008 11:39 AM

"[Casual inspection] does not mean getting down on the pavement and poking and prodding a crack that looks harmless, or testing it prior to walking on it."

I agree. That's why the plaintiff lost here: she had the burden of production to produce some evidence showing that, in order to avoid her injury, she would have had to have done what you just described. She failed to do that. In fact, the only evidence she presented regarding the "crack" was that it was "plainly visible."

Posted by: Lawyer | April 18, 2008 12:01 PM

Lawyer: "When she stepped on the crack, the cement “gave way underneath [her] foot,” and she 'felt [her] foot go down [and] heard a [gravelly] sound and it caught [her] foot.' Plaintiff’s foot then became stuck, she stumbled and fell, hitting her head on the side of her car and falling to the ground."

Clearly enough information for a reasonable juror to consider in making a decision. Mind you, I'm not saying she should win, all I'm saying is she ought to get her day in court.

Throck: It's not the court's job to bring anything into check. It's the court's job to follow the law, not change it. Changing the law is the job of the legislature. The court above is usurping the jury's exclusive prerogative (guaranteed by our constitution) by dismissing the case without sending it to a jury to find the facts.

I do agree that one of the key problems is defining reasonableness. It seems to be an intentionally ambiguous standard.

Posted by: Cameron Getto | April 18, 2008 9:33 PM


The fact that she fell and injured herself literally has *no bearing* on whether or not the crack or hazard could have been discovered by a person of average intelligence upon casual inspection.

Say, for example, that I was hurt tripping over a book. What you're saying is that *solely because I was injured*, I should get "my day in court" as to whether that book was written in English. The comprehensibility of the book is logically independent of the fact that I've been injured by it. Hence the burden of production that I present some evidence showing the book's language.

What you've presented is one of the main problems with our litigation system -- people assume, erroneously, that whenever a person is injured they should necessarily "get [their] day in court." Sometimes people just fall down. We don't have a loser pays system, and with the jackpot-seeking trial bar there needs to be some safeguard to assure society that those producing goods and services aren't paralyzed from the risk of litigation.

Posted by: Lawyer | April 22, 2008 6:45 PM