The Michigan Court of Appeals recently expanded the open and obvious doctrine available in premises liability actions to allow a contractor who temporarily possessed a premises to assert this defense.
To more fully understand the significance of the appellate court’s ruling in Finazzo v. Fire Equipment Company, 323 Mich App 620; 918 NW2d 200 (2018), a brief review of Michigan premises liability law will be helpful.
A defendant is generally entitled to challenge a premises liability claim by asserting the open and obvious defense. That is, a plaintiff’s claim will generally be barred if a defendant establishes that an average person with ordinary intelligence would have discovered the danger upon casual inspection, unless there are special aspects of the danger which would make even an open and obvious risk unreasonably dangerous.
However, the open and obvious defense is available only in premises liability claims. It is not available in ordinary negligence actions. Accordingly, a slip-and-fall plaintiff may attempt to cast a premises liability claim as one of ordinary negligence, to attempt to prevent a defendant from relying on the open and obvious defense.
When analyzing defense motions challenging plaintiffs’ claims of ordinary negligence, Michigan appellate courts have routinely held that courts must look beyond procedural labels plaintiffs attached to their claims and must determine the substance of a claim by reviewing the complaint as a whole. And where a plaintiff asserts an injury arising from a condition of the land, the action will be deemed to sound in premises liability, even if the plaintiff asserts the defendant created the hazardous condition.
One of the elements a plaintiff must establish in a premises liability action is that the defendant possessed and controlled the premises on which the accident occurred. Before the Finazzo ruling, this requirement meant that a defendant who did not own, possess, or control the premises was not able to assert the open and obvious defense, even if the plaintiff asserted an injury arising out of a condition of the land. Instead, the claim would be analyzed under general negligence principles, thereby precluding a defendant from asserting the open and obvious defense.
In Finazzo, the defendant had been hired to perform electrical work on the property of ITC Holdings Corp. (ITC). The plaintiff, an employee of ITC, sued the defendant on a negligence theory for injuries he sustained when he tripped on a cable. The defendant argued that because it was working on ITC’s premises on behalf of the company, it could rely upon the open and obvious doctrine in defending against the plaintiff’s claim.
The appellate court agreed, concluding that ITC had loaned its possessory rights to the defendant. In reaching its decision, the appellate court recognized that possessory rights can be loaned to another party, thereby conferring a duty on the other party to ensure the safety of the premises. The appellate court explained that imposing premises liability on persons possessing and controlling the premises is “consistent with the general principle that liability for a dangerous condition should fall on the party having power to prevent injury to others on the premises.” Finazzo, 323 Mich App at 629.
The Finazzo decision marks a significant change from prior decisions of Michigan courts and will now allow parties who only temporarily possessed and controlled premises to assert the open and obvious defense. The decision does not discuss the length of time that must have elapsed before a party will be deemed to have temporarily possessed and controlled the premises.
As long as a party can establish it had possession and control over the accident site and was in a better position than the premises owner to prevent harm to others, the party should be deemed a premises possessor and entitled to assert the open and obvious defense, even if the possession was brief.
Sandra J. Densham is a partner in the firm’s Grand Rapids office who focuses her practice in the area of general defense litigation, including product, premises and motor vehicle liability, as well as marine and recreational ...
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