Opinion

Novotney v. Burger King Corp.

  • 198 Mich. App. 470
  • 499 N.W.2d 379
Court
Michigan Court of Appeals
Filed
Mar 1, 1993
Status
Published
Author
Murphy
On the bench
Sawyer, Kelly, Murphy
Cited by
134 cases
Authority
More cited than 9.0%

stating that “it is not relevant to the disposition of this matter whether plaintiff actually saw the [dangerous condition]. Rather, it is necessary for plaintiffs, to have their claim survive the motion for summary disposition, to come forth with 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 [alleged dangerous condition]”

How later courts described this case

  • stating that “it is not relevant to the disposition of this matter whether plaintiff actually saw the [dangerous condition]. Rather, it is necessary for plaintiffs, to have their claim survive the motion for summary disposition, to come forth with 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 [alleged dangerous condition]”
  • stating that “it is not relevant to the disposition of this matter whether plaintiff actually saw the [condition]. Rather, it is necessary for plaintiffs, to have their claim survive the motion for summary disposition, to come forth with 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]”
  • holding that a condition is considered “open and obvious” if the dangerous characteristics are “readily apparent or easily discoverable upon casual inspection by the average user of ordinary intelligence.”
  • “A premises possessor is generally not required to protect an invitee from open and obvious dangers. The logic behind the open and obvious danger doctrine is that ‘an obvious danger is no danger to a -5- reasonably careful person.’ ”

Written by the judges who cited it.

The opinion

Murphy, J.

(dissenting). I would reverse the trial court’s grant of summary disposition in favor of defendants.

The facts in this case were set forth in this Court’s prior published opinion. Novotney v Burger King Corp (On Rehearing), 188 Mich App 705, 706-707 ; 470 NW2d 93 (1991).

I acknowledge that Riddle v McLouth Steel Products Corp, 440 Mich 85 ; 485 NW2d 676 (1992), stands for the proposition that an owner of land has no duty to warn an invitee of an open and obvious danger unless the owner has anticipated the harm will result despite the invitee’s knowledge of the danger. Unlike the majority, I am not persuaded that the rationale in Glittenberg v Doughboy Recreational Industries (On Rehearing), 441 Mich 379 ; 491 NW2d 208 (1992), a products liability case, is applicable to this premises liability claim.

In my opinion, when viewed in the light most favorable to plaintiffs, the reasonableness of the defendants’ conduct and the questions concerning the unsafe condition of the ramp, the defendants’ knowledge of the danger, and the open and obvious nature of the hazard should be resolved by the trier of fact. Thus, I would find summary disposition inappropriate and would remand to the trial court for further proceedings.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.