Open and Obvious Doctrine Remains Alive, but for How Long?

The open and obvious doctrine has precluded injured parties from successfully suing landowners for almost 30 years, but that may change with a new Michigan Supreme Court. 

The Supreme Court is technically nonpartisan, but it historically has deep political significance.  Holding a Republican majority for years, two Democratic-backed justices won election last fall to shift the Court’s ideology narrowly to the left.  Its new balance may affect the outcome of big ticket political issues, but it’s more likely we will see an impact on lower-profile matters involving consumer protection, environmental regulations, and—of note here—premises liability.

Until then, though, a January 2021 decision illustrates the open and obvious premises liability doctrine remains alive and well in Michigan. In Bierbusse v Secor-Sterns Investment, LLC, Case No. 351359 (Mich. Ct. App. Jan 21, 2021), the Michigan Court of Appeals reiterated that “potholes in pavement are an everyday occurrence” that should be considered open and obvious—and then it expanded the coverage of the doctrine to include water-filled ones.

In Bierbusse, the plaintiff was a customer shopping at a store in a strip mall. The parking lot was owned by the shopping center and the store that the plaintiff visited was a tenant. On her way in, the plaintiff testified she noticed potholes all over the parking lot and that they were filled with water. Later returning to her car, the plaintiff fell in one and broke her arm. She filed suit against the store and the plaza owner alleging a premises liability claim.

The store was dismissed from the lawsuit for having no possession or control of the parking lot, and the shopping center filed a motion for summary disposition, arguing it did not owe the plaintiff a duty based on the open and obvious doctrine. The trial court found that a water-filled pothole was open and obvious, and that it did not meet either exception to the rule: it was neither unavoidable nor did it present an unreasonable risk of harm. The plaintiff appealed, but the appellate court  agreed with the trial court’s ruling.

In Michigan, a plaintiff must prove the following elements by a preponderance of the evidence in order to prevail on a premises liability claim: (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of plaintiff’s injury, and (4) the plaintiff suffered damages. 

The open and obvious doctrine states a premises owner or possessor does not owe a duty to an individual on the land because “both possessors of land and those who come onto it must exercise common sense and prudent judgment when confronting hazards on the land.” Hoffner v Lanctoe, 492 Mich 450, 459 (2012). The standard to determine whether a hazard is open and obvious is an objective one: Is it reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection? 

In this case, the court relied on the plaintiff’s testimony about her observations while walking into the store and after she fell. The plaintiff recognized the potholes when she entered the store because they were everywhere. She even admitted that she would have avoided them on her way out if she was paying attention. She also noticed the pothole after she fell, but the Hoffner court said that “[i]t is of no consequence that she did not first observe the hazard before she fell” due to the doctrine’s objective standard. Additionally, there were no special aspects (like a 30 foot unguarded hole) to find the potholes met an exception. Therefore, the appellate court declared water-filled potholes open and obvious.

Although this result may not survive, given Michigan’s new Supreme Court, it currently remains a viable defense in premises liability actions.

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