By Eric P. Conn and Thomas N. Lurie
In recent years, premises owners, especially those in the sports and recreation industry, have enjoyed unique protection from premises liability cases in Michigan. While popular support to lessen the protections within the Michigan Bar may work to stem that tide, there has thus far been no reflection within the Michigan appellate courts to suggest that will happen anytime soon. In fact, the recent Michigan Court of Appeals unpublished decision in Cappell v Willow Creek Golf Dome, reveals that the defense of “open and obvious” in Michigan continues to be applied in favor of defendants and businesses engaged in recreational activities.
In Cappell, a sympathetic plaintiff claimed injury after missing a step she did not see on a miniature golf course. The plaintiff claimed that she could not see the step on July 4, 2014 because it was becoming dark at the wooded mini-golf course at approximately 6:00 pm. Further, a photograph of the step (used at the depositions of various witnesses) was taken at an angle to create an “optical illusion” that made seeing the step difficult. That evidence was contradicted by two witnesses from the defendant that testified that the golf course closed before it became dark because the course was not lit and that the photograph was misleading as the step was clearly observable to the reasonable person. The defendant also provided undisputed evidence that the Sun did not set on July 4, 2014 until 9:15 pm.
In an interesting strategy, the plaintiff filed the Michigan equivalent of a motion for summary judgment seeking to establish liability. The defendant filed a countermotion for summary judgment seeking to extinguish liability, and specifically relied upon Michigan’s adherence to the open and obvious doctrine as adopted pursuant to the Restatement Second of Torts within the State. See, Lugo v Ameritech, 464 Mich 512 (2001).
In Michigan, a premises condition that causes injury is open and obvious if the danger from the condition is known or is so obvious that the claimant is reasonably expected to discover it. Id. (citing, Riddle v McLouth Steel Products, Corp., 440 Mich 85 (1992)). However, the otherwise known or obvious condition will still give rise to liability if it contains special aspects. “Special aspects” has been defined as something that creates an unreasonable risk of harm despite the known or obvious nature of the condition. To date, only two types of “special aspects” have been accepted in Michigan: 1) a condition that is effectively unavoidable; or 2) a condition that presents a substantial risk of severe injury or death. Lugo, supra. Both of these special aspects present objective tests that must be viewed a priori, or, before the injury occurred. Id. Failure to demonstrate that a known or obvious condition presents special aspects is fatal to a premises liability claim in Michigan.
The Michigan Supreme Court provided two examples to assist with understanding what special aspects can create liability for open and obvious conditions. The first was a situation where the only exit to a department store was covered in water. In that situation, in order to leave the store, a claimant would have to traverse the water even though it may be dangerous to do so. The second was a situation where there was a thirty-foot deep, unguarded pit on a landowner’s premises. In that situation, even though it would likely be relatively easy to avoid the pit, in the happenstance that someone did not, it would most certainly lead to serious injury or death.
In the recent Cappell decision, the defendant argued in its countermotion that the steps at issue were open and obvious. In support of that motion, the defendant provided testimony from the plaintiff and its witnesses regarding the nature of the step she missed. The defendant also provided well established case law that stands for the proposition that standard stairs are generally open and obvious and do not present a substantial risk of severe harm or death. See, e.g., Corey v Davenport College of Business, 251 Mich App 1 (2002). Further, the defense witnesses’ testimony established that the photograph of the step was “misleading” and the step was very clear and did not need to be marked for patrons to see and avoid falling on it. Not surprisingly, the plaintiff argued to the contrary, and relied upon the photograph and her self-serving testimony in support of her position.
The trial court, sitting in the conservative venue of Oakland County, Michigan, heard oral argument and granted the defendant’s countermotion for summary judgment. In its reasoned ruling, the trial court “held that the undisputed evidence established that the step in question was an ‘open and obvious condition that was not unreasonably dangerous.’” The plaintiff appealed the trial court’s order dismissing the case as of right to the Michigan Court of Appeals, the intermediary appellate court in Michigan.
After briefing on the issue, the Michigan Court of Appeals held oral argument on March 4, 2020. One month later, the Court released its opinion and order affirming the trial court’s grant of summary judgment. The reinforcement of the open and obvious doctrine in Michigan is no small feat, especially because there are cases currently pending on application to the Michigan Supreme Court that suggest there may soon be a change in how the doctrine is applied.
In its analysis, the Court of Appeals took note of the evidence and described it as follows:
Here, although the photograph of the stairs may have captured an optical illusion at one particular angle, testimony established that it would not have appeared so in person at other angles. Moreover, the step did not have a black strip of tape on it, but the photograph of the steps show that the top step did have a black mark where a strip once was; this mark was dark enough to appear in the photograph. In addition, the photograph also shows the handrail next to the steps where plaintiff fell. The handrail drops in elevation along with the steps, going downward, which indicates a differential in the steps at that point. Given these factors, an average person of ordinary intelligence would discover the risk presented upon a casual inspection. The fact that plaintiff did not discover the risk is immaterial given that the test is an objective one.
Id. On the basis of the above findings, the Court determined that the step at issue was not only open and obvious, but that it contained no special aspects to warrant the implication of a duty where the plaintiff was on notice of the potential for injury.
As for cases that pertain to sports and recreation law in general, this case’s holding is consistent with prior results. See, e.g., Singerman v Municpal Service Bureau, 455 Mich 135 (1997). However, there are a special subset of sports to which the open and obvious doctrine does not apply, e.g., skiing and snowboarding, Rhoda v O’Dovero, unpublished Michigan Court of Appeals opinion, decided March 24, 2016 (docket number 321363), and therefore prudence is necessary before painting all recreational activities as open and obvious hazards. However, at present, only those sports or recreational activities in Michigan that are governed or regulated by statute can avoid application of open and obvious conditions that do not contain special aspects. Id.
Michigan has long been pro-defense in premises liability claims, and that trend has not been stymied when it comes to recreation and sports activities. The recent Cappell decision reveals that trend is likely to continue, as Michigan appellate courts refuse to implement liability where an injury occurs due to a known or objectively obvious premises condition. Consequently, Michigan is a pro-business jurisdiction when injuries occur because of allegedly defective premises in what appears to be an effort to protect its tourism and recreation industries. Michigan’s pro-business trend seems likely to continue for the foreseeable future with a Supreme Court comprised of a contingent of Justices who either participated in the prior decisions or have shown their pro-business tendencies in other situations.
Eric P. Conn is a shareholder in Segal McCambridge Singer & Mahoney’s Detroit office. Mr. Conn concentrates his practice in premises liability, negligence, products liability, and transportation matters. Mr. Conn has successfully defended clients in each of those matters through early resolution, facilitation, mediation, summary judgment, trial and appeal. He also has significant practice experience in commercial litigation, contract negotiation and associated litigation, construction matters, labor and employment discrimination, real estate disclosure and associated litigation. He currently serves as chair of the firm’s Transportation Practice Group. Eric welcomes comments, questions, and discussion via email at econn@smsm.com.
Thomas N. Lurie is an associate attorney in the firm’s Michigan office focusing his practice on transportation, premises liability, negligence, and employment litigation. He has considerable litigation experience including drafting and arguing complex dispositive motions, deposing parties and witnesses, and managing litigation to achieve successful results. He also advises clients in transactional matters and drafts strategic contracts to effectuate his client’s needs. He endeavors to efficiently resolve matters for his clients by utilizing aggressive and well-reasoned legal strategies. Thomas also welcomes comments, questions, and discussion via email at tlurie@smsm.com.
