# Novotney v. Burger King Corp.

> Michigan Court of Appeals · March 1, 1993 · 198 Mich. App. 470

URL: https://www.frixlaw.com/law-library/cases/9710019

## Case

- **Full name:** Novotney v. Burger King Corporation (On Remand)
- **Court:** Michigan Court of Appeals
- **Decided:** March 1, 1993
- **Citations:** 198 Mich. App. 470; 499 N.W.2d 379
- **Precedential status:** Published
- **Opinion:** Dissent by Murphy
- **Judges:** Sawyer, Kelly, Murphy
- **Cited by:** 134 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9710019

## How later opinions describe it (automated extraction)

- 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…
- 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…
- 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.”
- discussing the open and obvious nature of a sidewalk with a handicap access ramp

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9710019. Public record. Not legal advice.