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The Open and Obvious Issue

What is the Open and Obvious Defense?

When an injured Plaintiff brings a premises liability claim, the Defendant may assert as a defense that the hazard which caused the Plaintiff’s injury was so obvious and discoverable that a reasonable person would have avoided the hazard and would not have sustained the injury. Specifically, the Michigan Supreme Court has stated:

Whether a danger is open and obvious depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered the danger upon casual inspection.

Novotney v Burger King Corp (on remand), 198 Mich App 470, 474-475 (1993).

Although a possessor of land has a legal duty to warn her invitees of dangers she knows of, should know of, or created, this duty is alleviated if the dangers are open and obvious. This “open and obvious” language is important because it defines the land possessor’s duty, and may act as a defense to an injured Plaintiff’s claim. In this regard, the Michigan Supreme Court has stated:

Where the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, an invitor owes no duty to protect or warn the invitee unless he should anticipate the harm despite knowledge of it on behalf of the invitee.

Riddle v McLouth Steel Prods Corp, 440 Mich 85, 96 (1995).

Countering the Open and Obvious Defense

There are two primary ways of countering the open and obvious defense. First, a Plaintiff may show that, contrary to the Defendant’s assertions, a reasonable person would not have discovered the hazard or condition which caused his or her injuries, and thus the condition was not open and obvious. The applicability and likelihood of success of such an argument will be dictated by the particular facts of the case.

Additionally, a Plaintiff may also counter the open and obvious defense by asserting that the hazard which Defendant asserts was open and obvious contained some special aspect that overrides the defense.

Special Aspects of the Open and Obvious Defense

There are special aspects of the open and obvious doctrine which can significantly impact slip and fall claims. For example, even if the condition which injured the Plaintiff is found to be open and obvious, it may not act as a complete defense against the Plaintiff’s claims. Specifically, the Michigan Supreme Court noted:

The general rule is that a premises possessor is not required to protect an invitee from open and obvious dangers, but, if special aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to protect invitees from that risk.

Lugo v Ameritech Corp, Inc, 464 Mich 512, 517 (2001).

Subsequently, the Lugo Court noted two “special aspects” which will allow a Plaintiff’s case to survive even if the Court finds that the condition which caused the Plaintiff’s injuries were open and obvious.

Special Aspect #1 – Unreasonably Dangerous Conditions

The first of these special aspects occurs when the open and obvious condition is “unreasonably dangerous.” Id. The Court noted that a condition constitutes an unreasonably dangerous one when it creates a “uniquely high likelihood of harm or severity of harm if the risk is not avoided.”  Id.

As an example, the Court explained that a thirty-foot pit in the middle of a business’s parking lot would certainly be open and obvious, but the risks associated with such a pit would be so substantial that it would constitute a special aspect, and thus the open and obvious doctrine would be inapplicable.

Special Aspect #2 – Effectively Unavoidable Conditions

The other special aspect exception to the open and obvious defense occurs when the open and obvious condition is “effectively unavoidable.” In these situations, the open and obvious hazards are not unreasonably dangerous, but some aspect of it makes the Plaintiff unable to negotiate the hazard without potentially sustaining an injury.

These cases are relatively limited in Michigan, but most often occur when the hazard prevents a safe entry or exit from the building. However, the Courts appear reluctant to admit the effectively unavoidable exception. In fact, at least one court has found that hazards immediately outside the entrance of a business do not present an effectively unavoidable hazard to a Plaintiff already outside of the premises, because the Plaintiff could have simply left the premises and come back another day.

Snow and Ice Conditions and Slip and Fall Claims

Understandably, given Michigan’s climate, premises liability cases regularly involve Plaintiffs injured by conditions pertaining to ice or snow. Generally, these cases track standard premises liability law and are dismissed as being open and obvious unless some special aspect exists.

In essence, Michigan law holds that individuals should realize that snow and ice are slippery and naturally hazardous. Therefore, they should take appropriate action to avoid such hazards. Further, the Michigan Supreme Court has held that a premises possessor does not have a legal duty to reduce the hazards of snow and ice if its accumulation is open and obvious.

Slipping on Black Ice

This can seem simple enough in cases where snow and ice are plainly visible, but oftentimes people encounter invisible or “black ice”, which by its nature is undetectable. Despite this, the Michigan Supreme Court initially held that black ice constituted an open and obvious hazard. However, subsequent courts have determined that black ice does not constitute an open and obvious condition “without evidence that the black ice in question would have been visible on casual inspection before the fall or without other indicia of a potentially hazardous condition.” This “other indicia of a potentially hazardous condition” may include the presence of snow, recent precipitation, or other visibly icy surfaces, and will generally be a question of fact to be determined by a jury.

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