Lugo v. Ameritech Corp., Inc.

Michigan Supreme Court

Lansing, Michigan 48909

____________________________________________________________________________________________

C hief Justice Justices

Maura D. Cor rigan Michael F. Cavanagh

Opinion

Elizabeth A. Weaver

Marilyn Kelly

Clifford W. Taylor

Robert P. Young, Jr.

Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JULY 3, 2001

ODIS LUGO,

Plaintiff-Appellee,

v No. 112575

AMERITECH CORPORATION, INC.,

Defendant-Appellant.

____________________________________

BEFORE THE ENTIRE BENCH

TAYLOR, J.

This premises liability action arises from a fall in a

parking lot possessed by defendant. Plaintiff apparently fell

after stepping in a pothole in the parking lot. The circuit

court granted summary disposition in favor of defendant, but

the Court of Appeals reversed, rejecting defendant’s position

that plaintiff’s claim was barred by the “open and obvious

danger” doctrine. We reverse the judgment of the Court of

Appeals and reinstate the judgment of the circuit court. The

pothole was open and obvious, and plaintiff has not provided

evidence of special aspects of the condition to justify

imposing liability on defendant despite the open and obvious

nature of the danger.

I

Plaintiff was walking through a parking lot toward

defendant’s building to pay a telephone bill when she

apparently stepped in a pothole and fell. Plaintiff testified

at her deposition that she was not watching the ground and

that she was concentrating on a truck in the parking lot at

the time. However, she also testified that nothing would have

prevented her from seeing the pothole.

Defendant moved for summary disposition, claiming that

the pothole constituted an open and obvious danger from which

it had no duty to protect plaintiff.1 The circuit court

granted the motion, stating:

I am going to take the position that there is

no material question of fact. I think it is quite

clear that the lady was walking along without

paying proper attention to the circumstances where

she was walking, and there is a legal duty to look

1

The motion for summary disposition was filed under both

MCR 2.116(C)(8) and (C)(10). While not expressly stated, it

is clear that the trial court granted the motion under

subsection (C)(10) because the trial court’s discussion

involved evidence beyond the pleadings.

2

where you are walking. I can’t be anymore precise

than that.

The Court of Appeals reversed the grant of summary

disposition in a two-to-one decision. The Court of Appeals

majority concluded that the circuit court erred in holding

that plaintiff’s legal duty to look where she was walking

barred her claim. The Court stated that, under principles of

comparative negligence, a plaintiff’s negligence can only

reduce the amount of recovery, not eliminate altogether a

defendant’s liability. The Court also determined that the

open and obvious danger rule did not apply because there was

a genuine issue of material fact regarding whether defendant

should have expected that a pedestrian might be distracted by

the need to avoid a moving vehicle, or might even reasonably

step into the pothole to avoid such a vehicle.

We disagree with the holding of the Court of Appeals.

Further, while we do not embrace the reasoning of the circuit

court, we agree with its result.

II

The proper focus in this case is the extent of the open

and obvious doctrine in premises liability cases. In general,

a premises possessor owes a duty to an invitee to exercise

reasonable care to protect the invitee from an unreasonable

risk of harm caused by a dangerous condition on the land.

Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185

3

(1995). However, this duty does not generally encompass

removal of open and obvious dangers:

[W]here 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

Products Corp, 440 Mich 85, 96; 485 NW2d 676

(1992).]

Accordingly, the open and obvious doctrine should not be

viewed as some type of “exception” to the duty generally owed

invitees, but rather as an integral part of the definition of

that duty. This Court further elaborated in Bertrand, supra

at 611:

When §§ 343 and 343A [of the Restatement

Torts, 2d] are read together, the rule generated is

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, then the open and obvious doctrine will cut

off liability if the invitee should have discovered

the condition and realized its danger. On the

other hand, if the risk of harm remains

unreasonable, despite its obviousness or despite

knowledge of it by the invitee, then the

circumstances may be such that the invitor is

required to undertake reasonable precautions.

In sum, 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.

4

The following language from Bertrand provides a more

concrete discussion of these abstract concepts:

With the axiom being that the duty is to

protect invitees from unreasonable risks of harm,

the underlying principle is that even though

invitors have a duty to exercise reasonable care in

protecting their invitees, they are not absolute

insurers of the safety of their invitees.

Quinlivan [v The Great Atlantic & Pacific Tea Co,

Inc, 395 Mich 244, 261; 235 NW2d 732 (1975).]

Consequently, because the danger of tripping and

falling on a step is generally open and obvious,

the failure to warn theory cannot establish

liability. However, there may be special aspects

of these particular steps that make the risk of

harm unreasonable, and, accordingly, a failure to

remedy the dangerous condition may be found to have

breached the duty to keep the premises reasonably

safe. [Bertrand, supra at 614.]

Consistent with Bertrand, we conclude that, with regard to

open and obvious dangers, the critical question is whether

there is evidence that creates a genuine issue of material

fact regarding whether there are truly “special aspects” of

the open and obvious condition that differentiate the risk

from typical open and obvious risks so as to create an

unreasonable risk of harm, i.e., whether the “special aspect”

of the condition should prevail in imposing liability upon the

defendant or the openness and obviousness of the condition

should prevail in barring liability.

An illustration of such a situation might involve, for

example, a commercial building with only one exit for the

general public where the floor is covered with standing water.

5

While the condition is open and obvious, a customer wishing to

exit the store must leave the store through the water. In

other words, the open and obvious condition is effectively

unavoidable. Similarly, an open and obvious condition might

be unreasonably dangerous because of special aspects that

impose an unreasonably high risk of severe harm. To use

another example, consider an unguarded thirty foot deep pit in

the middle of a parking lot. The condition might well be open

and obvious, and one would likely be capable of avoiding the

danger. Nevertheless, this situation would present such a

substantial risk of death or severe injury to one who fell in

the pit that it would be unreasonably dangerous to maintain

the condition, at least absent reasonable warnings or other

remedial measures being taken.2 In sum, only those special

2

In considering whether a condition presents such a

uniquely dangerous potential for severe harm as to constitute

a “special aspect” and to avoid barring liability in the

ordinary manner of an open and obvious danger, it is important

to maintain the proper perspective, which is to consider the

risk posed by the condition a priori, that is, before the

incident involved in a particular case. It would, for

example, be inappropriate to conclude in a retrospective

fashion that merely because a particular plaintiff, in fact,

suffered harm or even severe harm, that the condition at issue

in a case posed a uniquely high risk of severe harm. This is

because a plaintiff may suffer a more or less severe injury

because of idiosyncratic reasons, such as having a particular

susceptibility to injury or engaging in unforeseeable conduct,

that are immaterial to whether an open and obvious danger is

nevertheless unreasonably dangerous. Thus, contrary to the

possible implication of Justice Weaver’s concurrence, this

opinion does not allow the imposition of liability merely

(continued...)

6

2

(...continued)

because a particular open and obvious condition has some

potential for severe harm. Obviously, the mere ability to

imagine that a condition could result in severe harm under

highly unlikely circumstances does not mean that such harm is

reasonably foreseeable. However, we believe that it would be

unreasonable for us to fail to recognize that unusual open and

obvious conditions could exist that are unreasonably dangerous

because they present an extremely high risk of severe harm to

an invitee who fails to avoid the risk in circumstances where

there is no sensible reason for such an inordinate risk of

severe harm to be presented.

We consider it unnecessary to express a view as to how

Singerman v Municipal Service Bureau, Inc, 455 Mich 135; 565

NW2d 383 (1997), should have been decided. Nevertheless, we

do not perceive why Justice Weaver concludes that this opinion

would seem to require that “the question whether the risk of

harm caused by the lighting defect [in Singerman] was

unreasonable despite its obviousness would be for the jury.”

Post at 3-4. We express no view on that question. Further,

as reflected in the result of the present case, this opinion

does not preclude a grant of summary disposition in favor of

a defendant in a premises liability action where no reasonable

person could conclude that the open and obvious condition at

issue involved special aspects that presented an unreasonable

risk to invitees.

Finally, to get to the heart of this, what concerns us

about Justice Weaver’s position is that it might be taken to

mean no matter what the open and obvious peril, even a thirty­

foot-deep unguarded or unmarked pothole, if it was open and

obvious, no tort claim would lie. While we imagine that

Justice Weaver would deny that such a result would follow from

her position, she seems to reject the idea “that the degree of

potential harm is relevant to whether the risk of harm posed

by a condition remains unreasonable despite its obviousness.”

Post at 2. Yet, it appears obvious to us that the degree of

potential harm from an open and obvious condition may, in some

unusual circumstances, be the key factor that makes such a

condition unreasonably dangerous. To consider our admittedly

extreme example, while it is reasonable to expect invitees to

avoid common potholes, that does not mean it is reasonable to

leave a gaping hole in a parking lot even though the

difference in the degree of harm likely to follow from an

(continued...)

7

aspects that give rise to a uniquely high likelihood of harm

or severity of harm if the risk is not avoided will serve to

remove that condition from the open and obvious danger

doctrine.3

However, typical open and obvious dangers (such as

ordinary potholes in a parking lot) do not give rise to these

special aspects.4 Using a common pothole as an example, the

condition is open and obvious and, thus, cannot form the basis

of liability against a premises possessor. The condition does

not involve an especially high likelihood of injury. Indeed,

an “ordinarily prudent” person, Bertrand, supra at 615, would

typically be able to see the pothole and avoid it. Further,

there is little risk of severe harm. Unlike falling an

extended distance, it cannot be expected that a typical person

tripping on a pothole and falling to the ground would suffer

2

(...continued)

invitee’s failure to avoid the hazard is the only material

difference between the two situations.

3

Contrary to the indication of Justice Weaver’s

concurrence, post at 1, our conclusion regarding the special

aspects of an open and obvious condition that are required in

order to remove such a condition from the scope of the open

and obvious doctrine is not mere “dicta.” On the contrary,

the lack of such special aspects in the present case forms the

basis of our holding that defendant was entitled to a grant of

summary disposition in its favor.

4

Indeed, the result that we reach in the present case

underscores that vitality of the open and obvious doctrine as

a bar to liability in cases involving typical open and obvious

conditions such as the common pothole at issue in this case.

8

severe injury.

III

Applying these general principles to the case at hand, we

conclude that defendant was entitled to summary disposition

under MCR 2.116(C)(10), which provides for summary disposition

when “[e]xcept as to the amount of damages, there is no

genuine issue as to any material fact, and the moving party is

entitled to judgment or partial judgment as a matter of law.”

Further, the party opposing a motion for summary disposition

(in this case plaintiff) is required by MCR 2.116(G)(4) to

“set forth specific facts showing that there is a genuine

issue for trial” with regard to the issues raised in the

summary disposition motion. In this case, the disputed issue

was whether plaintiff’s claim was barred by the open and

obvious danger doctrine.

The evidence submitted to the trial court allows for no

genuine issue of material fact with respect to whether

plaintiff’s claim was barred by the open and obvious danger

doctrine. This case simply involved a common pothole in a

parking lot. While plaintiff argues that the pothole was

filled with debris, the evidence presented to the trial court

simply does not allow a reasonable inference that the pothole

was obscured by debris at the time of plaintiff’s fall.

9

Indeed, plaintiff’s testimony at her deposition was that she

did not see the pothole because she “wasn’t looking down,” not

because of any debris obscuring the pothole.

The present case is substantially similar to Maurer v

Oakland Co Parks & Recreation Dep’t, one of the two

consolidated cases decided by this Court in Bertrand. In

Maurer, the plaintiff slipped and fell on an “unmarked cement

step” as she was leaving a rest room area at a park. The

plaintiff alleged that the defendant was negligent for not

marking the step with a contrasting color or warning of the

existence of the step. Bertrand, supra, at 618. Similar to

plaintiff in the present case tripping over the pothole

because she did not see it, the plaintiff in Maurer testified

at her deposition that she “just didn’t see the step there.”

Id. at 619.

The Bertrand Court held that the defendant in Maurer was

entitled to summary disposition on the basis of the open and

obvious danger doctrine because the plaintiff had shown

nothing unusual about the step:

The plaintiff’s only asserted basis for

finding that the step was dangerous was that she

did not see it. We hold that the plaintiff has

failed to establish anything unusual about the step

. . . . Because the plaintiff has not presented

any facts that the step posed an unreasonable risk

of harm, the trial court properly granted summary

disposition. [Id. at 621 (emphasis in the

original).]

10

In sum, the plaintiff in Maurer could not avoid summary

disposition because the evidence showed only that she tripped

and fell on a common step that she failed to notice.5

Likewise, the evidence in the present case reflects that

plaintiff tripped and fell on a common pothole because she

failed to notice it. While plaintiff argues that moving

vehicles in the parking lot were a distraction, there is

certainly nothing “unusual” about vehicles being driven in a

parking lot, and, accordingly, this is not a factor that

removes this case from the open and obvious danger doctrine.

In Bertrand, this Court stated:

[B]ecause steps are the type of everyday

occurrence that people encounter, under most

circumstances, a reasonably prudent person will

look where he is going, will observe the steps, and

will take appropriate care for his own safety.

Under ordinary circumstances, the overriding public

policy of encouraging people to take reasonable

care for their own safety precludes imposing a duty

on the possessor of land to make ordinary steps

“foolproof.” Therefore, the risk of harm is not

unreasonable. [Id. at 616-617.]

Likewise, potholes in pavement are an “everyday occurrence”

that ordinarily should be observed by a reasonably prudent

5

This should not be understood as meaning that the claim

of the plaintiff in Maurer was barred because she did not use

appropriate care for her own safety. The level of care used

by a particular plaintiff is irrelevant to whether the

condition created or allowed to continue by a premises

possessor is unreasonably dangerous. Rather, the important

point is that the plaintiff in Maurer offered nothing to

distinguish the steps at issue from ordinary steps in terms of

the danger that they presented.

11

person. Accordingly, in light of plaintiff’s failure to show

special aspects of the pothole at issue, it did not pose an

unreasonable risk to her.

While we agree with the result reached by the trial

court, we consider it important to disapprove part of its

apparent rationale. The trial court’s remarks indicate that

it may have granted summary disposition in favor of defendant

because the plaintiff “was walking along without paying proper

attention to the circumstances where she was walking.”

However, in resolving an issue regarding the open and obvious

doctrine, the question is whether the condition of the

premises at issue was open and obvious and, if so, whether

there were special aspects of the situation that nevertheless

made it unreasonably dangerous. In a situation where a

plaintiff was injured as a result of a risk that was truly

outside the open and obvious doctrine and that posed an

unreasonable risk of harm, the fact that the plaintiff was

also negligent would not bar a cause of action. This is

because Michigan follows the rule of comparative negligence.

Under comparative negligence, where both the plaintiff and the

defendant are culpable of negligence with regard to the

plaintiff’s injury, this reduces the amount of damages the

plaintiff may recover but does not preclude recovery

altogether. See, e.g., Riddle, supra at 98 (under comparative

12

negligence, “a defendant may present evidence of a plaintiff’s

negligence in order to reduce liability”).

Accordingly, it is important for courts in deciding

summary disposition motions by premises possessors in “open

and obvious” cases to focus on the objective nature of the

condition of the premises at issue, not on the subjective

degree of care used by the plaintiff. In the present case,

there was no evidence of special aspects that made the open

and obvious pothole unreasonably dangerous.

IV

There is much agreement between our opinion and the

concurrence authored by Justice Cavanagh. We agree “that a

premises possessor is not generally required to protect an

invitee from open and obvious dangers.” Post at 2. We also

agree that, consistent with the 2 Restatement Torts, 2d,

§§ 343 and 343A, circumstances may arise in which an open and

obvious condition is nevertheless unreasonably dangerous so as

to give rise to a duty upon a premises possessor to in some

manner remove or otherwise appropriately protect invitees

against the danger. We further agree that any comparative

negligence by an invitee is irrelevant to whether a premises

possessor has breached its duty to that invitee in connection

with an open and obvious danger because an invitee’s

comparative negligence can only serve to reduce, not

13

eliminate, the extent of liability.

As we understand it, Justice Cavanagh’s basic position is

that the inquiry into whether an open and obvious condition is

unreasonably dangerous should not be focused on whether that

condition involves special aspects that distinguish it from

ordinary open and obvious conditions. We disagree because we

believe that this “special aspects” inquiry serves to

concretely focus trial courts on the showing that must be made

in evaluating motions for summary disposition in this context.

In our view, this approach is consistent with § 343A of the

Restatement, which indicates that a possessor of land is only

liable to invitees for harm caused by an obvious condition if

the possessor should “anticipate the harm.” Post at 5.

Simply put, there must be something out of the ordinary, in

other words, special, about a particular open and obvious

danger in order for a premises possessor to be expected to

anticipate harm from that condition. Indeed, it seems obvious

to us that if an open and obvious condition lacks some type of

special aspect regarding the likelihood or severity of harm

that it presents, it is not unreasonably dangerous. We cannot

imagine an open and obvious condition that is unreasonably

dangerous, but lacks special aspects making it so.6

6

Justice Cavanagh states that “[a] more correct

statement of the law [in Bertrand, supra] would have been to

(continued...)

14

Justice Cavanagh agrees with our conclusion that

plaintiff has failed to establish that the pothole in the

present case “presented an unreasonable risk of harm.” Post

at 21. In this opinion, we explain concretely why that is so.

It is because the evidence proffered by plaintiff establishes

nothing more than the existence of a common, ordinary pothole.

Because of the great variety of circumstances in which

premises liability claims may be raised, it may be practically

impossible to demarcate the extent of a premises possessor’s

duties with great precision. Nevertheless, we believe that

our approach, focusing on the existence or absence of special

aspects of an open and obvious danger, will guide the trial

courts in considering whether particular open and obvious

conditions posed an unreasonable risk of harm better than

would be the case without this further exposition of the open

and obvious doctrine.

Finally, in response to Justice Weaver’s concurrence,

this opinion does not require a premises owner or possessor to

be an “insurer of the safety of invitees.” Post at 5.

Indeed, our resolution of the present case in favor of

6

(...continued)

say that the duty to exercise reasonable care is not breached

in cases involving ordinary steps.” Post at 18. We agree

that ordinary steps cannot be considered to present an

unreasonably dangerous risk of harm. This is consistent with

our focus on the existence or absence of special aspects of an

open and obvious condition.

15

defendant would belie any such a claim. However, a premises

possessor does have a duty to undertake reasonable efforts to

make its premises reasonably safe for its invitees. This

opinion attempts to provide a further explanation of the scope

of that duty.

For the above reasons, we reverse the judgment of the

Court of Appeals and reinstate the judgment of the circuit

court.

CORRIGAN , C.J., and YOUNG and MARKMAN , JJ., concurred with

TAYLOR , J.

16

S T A T E O F M I C H I G A N

SUPREME COURT

ODIS LUGO,

Plaintiff-Appellee,

v No. 112575

AMERITECH CORPORATION, INC.,

Defendant-Appellant.

_____________________________

CAVANAGH, J. (concurring).

This premises liability suit arises out of the

plaintiff’s claim that she fell and injured herself after

stepping into a pothole in the defendant’s parking lot. The

circuit court granted defendant summary disposition, and the

Court of Appeals reversed. The majority now reverses the

Court of Appeals, and holds that (1) the pothole was open and

obvious, and (2) there is no justification for imposing

liability on the defendant despite the open and obvious nature

of the danger presented by the pothole because the plaintiff

failed to provide evidence that the pothole had “special

aspects.”

I join the majority’s decision to reverse the Court of

Appeals and reinstate the judgment of the circuit court

because I agree that the plaintiff failed to establish a basis

for imposing liability despite the open and obvious nature of

the pothole. I also join the majority’s statement that the

trial court erred in focusing on the plaintiff’s subjective

degree of fault. However, I write separately to express my

disagreement with the majority’s “special aspects” analysis.

I would instead prefer to work with the premises liability law

already offered by this Court and to adopt an approach more

true to the Restatement.

I. The Majority Approach

The majority offers an approach to open and obvious

danger cases that focuses on the special aspects of a

condition:

In sum, 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.

[Slip op at 5.]

I agree with the majority that a premises possessor is not

generally required to protect an invitee from open and obvious

dangers. Also, I agree with the majority that there are

exceptions to the general rule. However, I disagree with the

majority that the issue can be simply summarized in terms of

2

whether “special aspects” of a condition make the risk of harm

unreasonably dangerous. Instead, the Court must make two

inquiries: (1) whether the possessor may be held liable

pursuant to the terms of 2 Restatement Torts, 2d, § 343, and

(2) whether liability is suspended under § 343A. In order to

determine whether liability should be imposed, a thorough

consideration of the historical underpinnings of the open and

obvious danger doctrine is in order. I offer such an analysis

in this opinion, with the hope that the majority opinion will

not be read as limiting the scope of the doctrine.

II. The Open and Obvious Danger Doctrine and the Restatement

Approach

Recovery has been barred in premises liability cases

involving open and obvious dangers for at least a century.

See, e.g., Caniff v Blanchard Navigation Co, 66 Mich 638; 33

NW 744 (1887). The Restatement approach has been key to

Michigan’s open and obvious danger law for almost as long.

The first explicit reference incorporating the Restatement

approach is Goodman v Theatre Parking, Inc, 286 Mich 80; 281

NW 545 (1938), where the plaintiff sought damages for a

sprained ankle sustained after stepping on a cinder in the

defendant's parking lot.1 Since that time, the Restatement

1

At the time, 2 Restatement Torts, Negligence, under

title of business visitors, § 343, set forth the following

standard of care:

(continued...)

3

has been cited repeatedly, even after its text was changed.

See Quinliven v Great Atlantic & Pacific Tea Co, Inc, 395 Mich

244; 235 NW2d 732 (1975)(quoting the Restatement with

approval). It is safe to say that the current version of

Restatement §§ 343 and 343A form the basis for Michigan’s open

and obvious decisional law.2

A. What the Restatement says

The applicable sections of the Restatement provide as

follows:

§ 343. DANGEROUS CONDITIONS KNOWN TO OR

DISCOVERABLE BY POSSESSOR

A possessor of land is subject to liability

for physical harm caused to his invitees by a

condition on the land if, but only if, he

(a) knows or by the exercise of reasonable

care would discover the condition, and should

realize that it involves an unreasonable risk of

harm to such invitees, and

(b) should expect that they will not discover

or realize the danger, or will fail to protect

themselves against it, and

(c) fails to exercise reasonable care to

1

(...continued)

A possessor of land is subject to liability

for bodily harm caused to business visitors by a

natural or artificial condition thereon if, but

only if, he (a) knows, or by the exercise of

reasonable care could discover, the condition

which, if known to him, he should realize as

involving an unreasonable risk to them. [Goodman at

82.]

2

Section 343A was added to the Restatement after § 343,

but the two sections are to be read together, as is indicated

by comment (a) to § 343.

4

protect them against the danger.

§ 343A. KNOWN OR OBVIOUS DANGERS

(1) A possessor of land is not liable to his

invitees for physical harm caused to them by any

activity or condition on the land whose danger is

known or obvious to them, unless the possessor

should anticipate the harm despite such knowledge

or obviousness.

(2) In determining whether the possessor

should anticipate harm from a known or obvious

danger, the fact that the invitee is entitled to

make use of public land, or of the facilities of a

public utility, is a factor of importance

indicating that the harm should be anticipated.

I read § 343 as providing a standard of care to be

applied in cases where there exists a dangerous condition on

the premises that the possessor knows about or could

reasonably discover.3 If the possessor is charged with

knowledge of the condition or the court finds that he could

reasonably discover the condition, he can be liable if (1) he

fails to exercise reasonable care to protect his invitees even

though the possessor should realize that the condition poses

an unreasonable risk of harm to an invitee, and (2) he should

realize that an invitee will either fail to discover the

condition, or fail to appreciate the danger of the condition

if it is discovered, or fail to protect himself from the

danger even if discovered or realized.

3

As will be explained, however, the Court has not

provided a uniform interpretation of the Restatement, and

there has been some debate about whether the Restatement

discusses duty or standard of care.

5

More instructive is the text of comment (a) to § 343,

which provides that “This section should be read together with

§ 343A, which deals with the effect of the fact that the

condition is known to the invitee, or is obvious to him . . .

. In the interest of brevity the limitation is not repeated

in this section.” Comment (a) is helpful in two ways: it

illustrates that hidden or unknown conditions can be

distinguished from known or obvious conditions and that § 343A

is a rule designed to limit liability, whereas § 343 is

designed to allow for the imposition of liability.

It is important to realize that the comments to § 343A

begin by saying, “The rule stated in this subsection applies

to all persons who enter or remain on land in the capacity of

invitees, as defined by § 332.” (Emphasis added.) Thus,

though §§ 343 and 343A must be read together, I believe that

§ 343A needs to be read as its own rule, and not as an

exception to § 343. The general rule provided by § 343A is

that a possessor of land is not liable to his invitees for

injuries caused by activities or conditions on the land whose

danger is known or obvious. The second clause of subsection

(1) of § 343A provides the exception to this rule: if the

possessor of land should anticipate the harm to the invitee

despite the invitee’s knowledge or the condition’s

obviousness, the possessor will not be relieved of liability

under the general open and obvious rule.

6

B. Where does the Restatement come into play?

The second imperative point to understand about

Restatement §§ 343 and 343A is that they refer to the

imposition of liability; they do not discuss whether a duty

exists. In fact, one of the very first cases incorporating

the Restatement into our jurisprudence stated, “2 Restatement

of the Law of Torts, Negligence, under title of ‘business

visitors,’ § 343, sets forth the following standard of care

which we believe is applicable here . . . .” Nash v Lewis,

352 Mich 488, 492; 90 NW2d 480 (1958). In my view, § 343 and

§ 343A assume that a duty has been imposed by virtue of the

possessor and invitee relationship, but that liability

nonetheless can be limited under certain circumstances.

Unfortunately, the Restatement does not explicitly lay

out the standard of care, it simply says that a possessor of

land “is subject to liability” in § 343 cases, or “is not

liable” in § 343A cases. Thus, the Restatement only

explicitly provides a liability shield. However, the

Restatement’s use of phrases such as “should expect,”

“unreasonable risk,” and “reasonable care” indicate that a

premises possessor must protect his invitees “from an

unreasonable risk of harm caused by a dangerous condition of

the land that the landowner knows or should know the invitees

will not discover, realize, or protect themselves against.”

Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185

7

(1995).

Once this premises liability rule is plugged into the

language of the Restatement, we would be left with the

following rule in known or obvious danger cases: A possessor

owes his invitees a duty of reasonable care in order to

protect them from an unreasonable risk of harm caused by a

dangerous condition on the land; he breaches that duty by

failing to protect his invitees from harm, though he should

have anticipated that harm would result from the known or

obvious danger despite the condition’s obviousness or the

invitee’s knowledge of the danger. When the invitor breaches

his duty of care in this manner, he can be subject to

liability for physical harm caused to his invitees by a

condition on the land if the conditions of § 343 are met.

A second inquiry would then be whether, despite the

possibility that liability could normally be imposed against

the possessor because he has failed to reasonably protect his

invitee, the possessor can nonetheless avoid liability on the

basis that the danger was known or obvious to the invitee.

When the danger is obvious, or when the invitee knows of it,

§ 343A of the Restatement would suspend liability unless the

possessor should anticipate harm flowing from the condition

despite the invitee’s knowledge of the condition or the

obviousness of the condition.

8

C. How the cases confuse the issue, and what contributory

negligence has to do with it

Unfortunately, the Restatement approach can be somewhat

difficult to apply because it bears some similarity to the

contributory negligence doctrine. I believe that these

similarities have caused Michigan’s case law on the open and

obvious doctrine to be somewhat imprecise.

The potential for confusion stems from the fact that, in

both contributory negligence and in open and obvious cases,

liability can be suspended because of action (or inaction) on

the part of the plaintiff. In both instances, a particular

defendant may be absolved of liability for negligence even

though he owes a duty to the plaintiff. Despite that

similarity, though, there is a distinct difference between the

open and obvious rule and the rule of contributory negligence.

In contributory negligence cases, a defendant is absolved of

liability even where he acts completely negligently.

Contributory negligence, a defensive mechanism, is based on

the policy that damages are not recoverable where the

plaintiff and the defendant are both partially at fault. The

open and obvious danger doctrine, on the other hand, relies on

the standard of care. Where the defendant fails to protect

his invitees from an unreasonable risk of harm posed by a

foreseeable danger, he will be liable. If the defendant is

absolved from liability under the open and obvious doctrine,

9

the reason for the absolution is not that the plaintiff acted

negligently. Instead, the reason is that the open and obvious

danger of the condition is a “circumstance” under the standard

of care. The possessor will be deemed to have acted

reasonably under those circumstances.

The idea that defendants should prevail where the

plaintiff fails to heed an open and obvious danger has been

around for a while, but, unfortunately, the focus on the

standard of care has been lost in some instances. The reason

is partially that the open and obvious doctrine predates

Michigan’s shift from contributory negligence to comparative

negligence. In the era of contributory negligence, failure to

precisely separate concepts of duty, liability, and standard

of care bore little consequence because plaintiffs could lose

simply by virtue of their own negligence. As Justice Levin

pointed out in dissent in Riddle v McLouth Steel Products, 440

Mich 85; 485 NW2d 676 (1992), these contributory negligence

cases sometimes expressed their holdings in terms of a “no­

duty” rule: that a possessor owes no duty to protect his

invitees from open and obvious dangers.

For example, in Caniff, the plaintiff sought to recover

damages for an injury sustained when he fell through a

hatchway left open on the deck of a ship. The Court denied

recovery. The primary reasons for the denial were that (1)

the plaintiff was an experienced sailor who was familiar with

10

ships and who knew that hatchways were often left open while

the ship was at port and, therefore, had reason to expect that

the hatchway he fell into would have been left open, (2) that

the plaintiff failed to exercise due care when he walked

carelessly forward in the dark, (3) that the plaintiff’s

actions constituted inexcusable negligence, and (4) that the

general premises liability rule would not apply in cases where

the plaintiff knows or should know that danger exists because

it is upon the plaintiff to avoid the peril. In other words,

reduced to its simplest terms, Caniff held that the plaintiff

should have known better and should have looked where he was

going.

In Garrett v WS Butterfield Theatres, Inc, 261 Mich 262;

246 NW 57 (1933), the plaintiff was injured while entering a

restroom. The entryway required patrons to step down into the

restroom. Plaintiff failed to see the step, and fell upon

entry. The Court stated that “[d]ifferent floor levels in

private and public buildings, connected by steps, are so

common that the possibility of their presence is anticipated

by prudent persons. The construction is not negligent unless,

by its character, location, or surrounding circumstances, a

reasonably prudent person would not be likely to expect a step

or see it.” Id. at 263-264. The Court denied recovery,

stating that the defendant was not guilty of negligence

because it owed no duty to “prevent careless persons from

11

hurting themselves.” Id. at 264.

Although these two early cases cited by the parties

addressed the liability issue by stating that no duty was owed

by the defendant to the plaintiff, it seems to me that the

reason for the holding in both cases was that the plaintiff

should have expected and heeded the danger. I posit that

contributory negligence principles actually would require a

two-step inquiry: (1) would the premises owner normally owe a

duty to the plaintiff to keep the premises reasonably safe,

and (2) would the premises owner be relieved of liability

because of the affirmative defense of contributory negligence?

In these cases, in order to bar recovery on the basis of

the plaintiff’s actions, the Court would have had to conclude

either that there was no duty to keep the premises reasonably

safe, that the premises were reasonably safe, or that the duty

to keep the premises reasonably safe was offset by the

plaintiff’s duty to care for his own safety. If the court

were to find that no duty existed, there would be no prima

facie case of negligence. Were the court to find that the

premises were reasonably safe, there would be no breach of the

standard of care. If it were the plaintiff’s own failure to

protect himself that barred liability despite an unreasonable

risk, liability would have been suspended under the

contributory negligence doctrine.

12

Two later cases seemed to recognize that there is a

difference between the duty owed and the effect of

contributory negligence on that duty. In Ackerberg v Muskegon

Osteopathic Hosp, 366 Mich 596; 115 NW2d 290 (1962), the

plaintiff sued the defendant for injuries sustained when he

fell from a platform located outside a hospital entrance. The

trial court denied recovery on two grounds. First, it held

that the plaintiff failed to show a duty or its breach.

Second, it held that the plaintiff failed to exercise

reasonable care for his own safety and that the claim was

barred because of the plaintiff’s contributory negligence.

The language used by the Ackerberg trial court seemed to be in

line with Caniff and Garrett. However, this Court reversed,

stating that jury questions existed regarding both whether the

defendant hospital had a duty to construct a guardrail and

whether the plaintiff was guilty of contributory negligence.

Another relevant case is Quinliven, in which the

plaintiff slipped and fell on some ice in the defendant’s

parking lot. This Court held that the defendant owed a duty

to the plaintiff to use reasonable care to protect against the

hazards arising from the accumulation of ice and snow. The

case emphasized that business invitors owe invitees a duty to

“be reasonably sure that [the invitor] is not inviting [the

invitee] into danger, and to that end, he must exercise

ordinary care and prudence to render the premises reasonably

13

safe for the visit.” Quinliven at 251 (quoting Blakely v

White Star Line, 154 Mich 635, 637; 118 NW 482 (1908)).

Quinliven overruled prior case law that said no duty was owed

in cases involving the natural accumulation of ice and snow.

Yet, the Court also noted that the plaintiff’s actions could

be considered in the context of contributory negligence. In

my view, Quinliven correctly determined the defendant’s duty

by referencing the relationship between the parties as well as

the danger presented, and then viewed the plaintiff’s

negligence as affecting liability rather than alleviating the

duty owed.

In Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511

(1979), this Court made the move from contributory to

comparative negligence. If a plaintiff’s negligence is

considered in terms of liability rather than in terms of duty,

the move would not necessarily have a huge effect on the

scheme of analysis applied in premises liability cases, though

it would have an effect on the plaintiff’s ability to recover.

For example, if the Caniff case were analyzed under a

Quinlaven approach, the defendant ship owner could have

prevailed on one of two theories: (1) the ship was reasonably

safe, and ordinary care was exercised despite the fact that

the hatch was left open, or (2) it was unreasonable to leave

the hatch open, but the plaintiff nonetheless would lose

because his own failure to exercise due care for his own

14

safety contributed to his injury and barred recovery. Under

comparative negligence principles, the defendant could still

prevail if the ship was deemed reasonably safe despite the

open hatch, but the ship owner would not necessarily prevail

in the second instance. As such, there is a significant

difference between an interpretation of the open and obvious

doctrine that says, “a defendant owes a duty to invitees to

keep his premises reasonably safe, but that duty does not

extend to protection against open and obvious dangers,” and to

say that, “a defendant owes a duty to keep his premises

reasonably safe, but he will not be held liable if the

plaintiff fails to heed open and obvious dangers.” It is this

distinction that lies at the crux of the present case.

D. Post-contributory cases

What makes this case particularly difficult is that, in

an attempt to be faithful to prior precedent, some of this

Court’s decisions that attempted to apply the open and obvious

danger doctrine in a post-contributory era confused the issue

inadvertently. One such opinion, which I authored, is

Williams v Cunningham Drug Stores, Inc, 429 Mich 495; 418 NW2d

381 (1988). In Williams, a store customer was injured after

fleeing the store directly behind an armed robber. The

primary focus in Williams was whether a business owner has a

duty to his invitees to insure against harm resulting from a

third-party criminal act. However, in a portion of the

15

opinion I wrote that the duty a possessor of land owes his

invitees “does not extend to conditions from which an

unreasonable risk cannot be anticipated or to dangers so

obvious and apparent that an invitee might be expected to

discover them himself.” Id. at 500. The statement was

supported with a citation to Restatement § 343A. But it would

have been more precise to say that liability would be

suspended in such circumstances. A better explanation of the

duty issue was presented by the opinion’s discussion of § 343,

which noted that invitors have a special relationship with

invitees and that possessors of land owe a duty to their

invitees to exercise reasonable care to protect invitees from

an unreasonable risk of harm caused by a dangerous condition

on the land.

A better approach to the Restatement is the one that I

stated in a later opinion:

When §§ 343 and 343A are read together, the

rule generated is 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, then the open and obvious

doctrine will cut off liability if the invitee

should have discovered the condition and realized

its danger. On the other hand, if the risk of harm

remains unreasonable, despite its obviousness or

despite knowledge of it by the invitee, then the

circumstances may be such that the invitor is

required to undertake reasonable precautions. The

issue then becomes the standard of care and is for

the jury to decide. [Bertrand at 611.]

16

Bertrand indicated that Williams should not be read too

broadly. Bertrand cited Williams for the proposition that an

invitor is not relieved of the duty to exercise reasonable

care to protect invitees against known or discoverable

dangerous conditions, even in cases where there would be no

duty to warn. Bertrand went on to say that a duty exists by

virtue of the relationship between the parties, and then the

opinion examined whether the duty had been breached.

I continue to believe that Bertrand correctly focused on

liability and on breach. Yet, given the discussions of late,

I think Bertrand also may have been less precise in its

terminology than it could have been.

For example, at one point, I wrote,

Under ordinary circumstances, the overriding

public policy of encouraging people to take

reasonable care for their own safety precludes

imposing a duty on the possessor of land to make

ordinary steps “foolproof.” Therefore, the risk of

harm is not unreasonable. However, where there is

something unusual about the steps, because of their

“character, location, or surrounding conditions,”

then the duty of the possessor of land to exercise

reasonable care remains. If the proofs created a

question of fact that the risk of harm was

unreasonable, the existence of duty as well as

breach become questions for the jury to decide.

[Id. at 616-617.]

This portion of the opinion directly followed a discussion of

cases decided under contributory negligence, and was an

attempt to incorporate the language of some prior cases. A

more correct statement of the law would have been that the

17

duty to exercise reasonable care is not breached in cases

involving ordinary steps. In that context, it may have been

more evident that Bertrand’s “unusual” characteristics

discussion related to the foreseeability and unreasonableness

of the risk of harm, rather than creating a special new rule.

It should also be noted that the differing viewpoints I

expressed in Williams and Bertrand are due in part to this

Court’s intervening decision in Riddle v McLouth Steel

Products. The majority in Riddle held, in pertinent part,

that an invitor has no duty to warn invitees of open and

obvious dangers.

Justice Levin wrote a dissenting opinion, which I believe

to be the more correct approach. In a nutshell, Justice Levin

noted that the issue is a standard of care issue, not a duty

issue. He also pointed out that the “no-duty” rule actually

came about as one way of expressing that a plaintiff was

contributorily negligent. The defendant’s duty should be tied

to the relationship between the parties, and that duty would

be owed regardless of whether a comparative negligence or

contributory negligence system is in place. A finding of

comparative negligence would assume that the defendant was in

fact negligent, because comparative negligence is used only as

a tool for apportioning damages after a breach of duty on the

part of the defendant has been found. The primary questions

for the jury to resolve in premises liability cases are,

18

first, whether the defendant has breached his duty of care,

and, second, whether his liability is somehow limited by the

plaintiff’s comparative negligence. It is within this

framework that the Restatement approach to the open and

obvious danger doctrine must be viewed. I agree with Justice

Levin’s approach.

III. Why the Majority Approach is Wrong

In light of the principles underlying the open and

obvious doctrine, I believe that it would be a serious mistake

to rephrase the open and obvious rule in yet another imprecise

fashion. I further believe that the majority is in error.

In support of the “special aspects” test, the majority

offers the following quotation from Bertrand at 614:

With the axiom being that the duty is to

protect invitees from unreasonable risks of harm,

the underlying principle is that even though

invitors have a duty to exercise reasonable care in

protecting their invitees, they are not absolute

insurers of the safety of their invitees.

Quinlaven . . . . Consequently, because the danger

of tripping and falling on a step is generally open

and obvious, the failure to warn theory cannot

establish liability. However, there may be special

aspects of these particular steps that make the

risk of harm unreasonable, and, accordingly, a

failure to remedy the dangerous condition may be

found to have breached the duty to keep the

premises reasonably safe. [Slip op at 5 (emphasis

added).]

While Bertrand recognized that if a condition has special

aspects that render it unreasonably dangerous, the possessor

may be subject to liability; the quoted language in no way

19

implies that the possessor only has a duty to undertake

reasonable precautions to protect his invitees when a

condition has special aspects.

Bertrand was intended as an application of the

Restatement approach to open and obvious dangers. Considered

in the context of the language of the Restatement, it is clear

that Bertrand’s focus was on whether the possessor failed to

exercise reasonable care to protect his invitees against an

unreasonable risk of harm flowing from a condition that the

possessor knew about or should have discovered through the

exercise of reasonable care, and whether the possessor should

have expected that the invitees would not discover or realize

the danger or would fail to protect themselves against it.

Secondarily, Bertrand considered whether harm should have been

anticipated by the possessor.

In my view, special aspects of a particular condition may

be relevant to a determination whether liability should be

imposed; however, consideration of special aspects should be

made in the context of the Restatement test. For example, if

a condition has special aspects that render it unusual, it is

possible that a court could conclude that the possessor should

have known that the condition could pose an unreasonable risk

of danger to his invitees. If the court then concludes that

the possessor knew about the condition or could have

discovered it by the exercise of reasonable care, that the

20

possessor should have expected that the invitees would not

discover or realize the danger or would fail to protect

themselves against it, and that the possessor failed to

exercise reasonable care in protecting his invitees, the court

could hold that the defendant is subject to liability pursuant

to § 343. Moreover, the special aspects of a particular

condition on the land might be relevant to a determination

whether the possessor should have anticipated that the

condition on his land would cause harm to his invitees. If

so, the liability shield of § 343A could be lifted.

In sum, while “special aspects” may be considered in

determining whether liability should be suspended, the

existence or absence of special aspects in a particular case

will not necessarily be outcome determinative. Instead,

pursuant to the Restatement, courts must focus on whether an

unreasonable danger is presented, whether harm should be

anticipated, and whether the duty of care has been breached.

IV. An Alternative Approach

I believe that the appropriate questions that should be

taken up in this case are those posed by the Restatement. I

would conclude that the plaintiff has failed to establish that

the pothole in the defendant’s parking lot presented an

unreasonable risk of harm. Because § 343 of the Restatement

provides that a possessor can be liable only when a condition

involves an unreasonable risk of harm, the plaintiff cannot

21

prevail. Likewise, the plaintiff has failed to establish that

the defendant should have anticipated that she would be

injured by the pothole. Rather, as the majority asserts, the

pothole was the type of open and obvious condition that a

reasonably prudent person would avoid. Therefore, under §

343A, the defendant is not liable for the physical harm caused

by the condition.

The plaintiff has failed to establish a material issue of

fact. The circumstances of this case reveal that the

liability cannot be imposed against the defendant. Therefore,

I join the majority’s decision to reverse.

KELLY , J., concurred with CAVANAGH , J.

22

S T A T E O F M I C H I G A N

SUPREME COURT

ODIS LUGO,

Plaintiff-Appellee,

v No. 112575

AMERITECH CORPORATION, INC.,

Defendant-Appellant.

____________________________________

W EAVER, J. (concurring).

I concur in the result of the majority opinion.

Plaintiff presented no evidence that the pothole was

unreasonably dangerous despite its obviousness.

I write separately because the majority unnecessarily

introduces—in dicta—a new standard by which open and obvious

defects will be deemed unreasonably dangerous despite their

open and obvious presence. Rather than introduce new

standards into the open and obvious doctrine, I would remain

true to existing precedent. See, e.g., Riddle v McLouth

Steel Products Corp, 440 Mich 85, 96; 485 NW2d 676 (1992), and

Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 500; 418

NW2d 381 (1988).

The majority’s new standard focuses on special aspects of

an open and obvious condition that give rise to the

“unreasonable risk of severe harm.” Slip op at 6 (emphasis

added).1 This standard has no precedent in Michigan’s common

law of the open and obvious doctrine. This Court has not

suggested—until today—that the degree of potential harm is

relevant to whether the risk of harm posed by a condition

remains unreasonable despite its obviousness.

In an apparent effort to provide guidance to the bench

and bar, the majority presents unlikely hypothetical examples.

When launching new legal principles from a factual vacuum, it

would be more helpful to apply this new severe-harm standard

to an actual case that came before this Court, such as

Singerman v Municipal Service Bureau, Inc, 455 Mich 135; 565

NW2d 383 (1997). Singerman was left unresolved by a three­

three split. It is indeed unfortunate that the majority fails

to take this opportunity to clarify its new standard by

1

The majority also offers a new definition of dicta to

justify its adoption of the new severe-harm standard. The

majority states that “the lack of such special aspects [i.e.,

the unreasonable risk of severe harm] in the present case

forms the basis of our holding that defendant was entitled to

a grant of summary disposition in its favor.” Slip op at 9,

n 3. This explanation, in my view, acknowledges that the

severe-harm standard is “dicta.” “Dicta” is defined as

“[o]pinions of a judge which do not embody the resolution or

determination of the specific case before the court.

Expressions in court’s opinion which go beyond the facts

before court and therefore are individual views of author and

not binding in subsequent cases as legal precedent.” Black’s

Law Dictionary, 6th ed. The severe-harm standard is not at

issue on the facts of this case, is not briefed by the

parties, and is not essential to the determination of this

case.

2

application to the facts of this recent case.

In Singerman, the plaintiff alleging negligence sued the

operator of a public hockey rink. Plaintiff was an

experienced hockey player who joined or was observing a pick­

up game. Plaintiff went onto the ice without protective

equipment and, at one point, stood leaning on the goal net.

As the scrimmage moved his way, plaintiff was hit in the eye

by a puck shot on goal, and he sustained severe damage.

Plaintiff testified that he saw the player take the shot, but

was unable to avoid the puck because of poor lighting. The

issue presented was whether the defendant should have

anticipated the harm despite plaintiff’s knowledge of the

hazardous condition.

Because severe harm is inherent to hockey, indeed the

plaintiff in Singerman lost an eye, it would seem under the

majority’s severe-harm standard the question whether the risk

of harm caused by the lighting defect was unreasonable despite

its obviousness would be for the jury. This, despite the fact

that the lighting in the rink was alleged to be consistently

inadequate and there was no chance that plaintiff would forget

the potentially hazardous condition “because the condition was

constantly before him.” Singerman at 144 (W EAVER , J.,

opinion). I believe that Singerman was an appropriate case

for summary disposition in favor of the defendant because the

3

open and obvious danger of the inadequate lighting was not

unreasonably dangerous despite the potential for severe harm.

Contrary to the majority’s suggestion that my position

would allow “no tort claim [to] lie,” slip op at 8, my

position simply remains true to well-established articulations

of the open and obvious doctrine. These articulations focus

on circumstances that make a risk unreasonable despite its

openness and obviousness, rather than on the nature of the

potential harm. See, e.g., Riddle, supra at 96 (holding that

“[w]here 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”); Williams v Cunningham Drug

Stores, Inc, supra at 500 (stating that “[t]he duty a

possessor of land owes his invitees is not absolute . . . .

It does not extend to conditions from which an unreasonable

risk cannot be anticipated or to dangers so obvious and

apparent that an invitee may be expected to discover them

himself. Furthermore, ‘the occupier is not an insurer of the

safety of invitees, and his duty is only to exercise

reasonable care for their protection’”).

4