Post-Open and Obvious: What Property Owners Can Do to Protect Themselves

With the Michigan Supreme Court recently dismantling the open and obvious defense as a viable ground for summary disposition for landowners, many are wondering what they can do to protect themselves against a potential uptick in premises liability lawsuits. 

As many in the legal community recognize, the retained “notice” defense is going to take a central role in the dispositive motion phase of these suits, as defendants try to redraw the limits of their liability. Courts will see more arguments that defendants did not have actual or constructive “notice” of the alleged dangerous condition prior to a plaintiff’s injury. Actual notice exists if there was affirmative knowledge of the condition, or the defendant created it. Hampton v Waste Mgmt of Michigan, Inc, 236 Mich App 598, 603-604 (1999).  Constructive notice is imputed knowledge or notice based on whether the condition could have been discovered by reasonable inspection or was present long enough that it should have been. Lowery v LMPS & LMPJ, Inc, 500 Mich 1, 10 (2016).

When defendants had the broad and easier-to-apply open and obvious defense, most did not focus on the notice requirement. It is certainly a murkier and more nuanced concept with which courts and judges must grapple. Nevertheless, in Michigan’s new world of premises liability, judges and courts are going to see more dispositive motions based on lack of notice. 

In addition to notice as the “go-to” defense to alleged duty, there is also an avenue for summary disposition based on lack of genuine issue of fact as to a landowner’s breach under MCR 2.116(C)(10). In Kandil-Elsayed, the Supreme Court maintained:

Whether a duty is breached will generally require consideration of various factual questions properly resolved by a jury. However, if there are no genuine issues of material fact remaining, a court may properly grant summary disposition under MCR 2.116(C)(10). 

The default rule that duty is settled by the judge and breach is settled by the jury does not always play out in practice. Where the evidence presented to a court concerning duty generates a question of fact, that question can be submitted to the jury for resolution. Correlatively, where the evidence presented to a court concerning breach generates no questions of fact, the issue can be decided by the judge as a matter of law. See MCR 2.116(C)(10).

While obtaining summary disposition under MCR 2.116(C)(10) is a tall task, landowners can set themselves up for a “best case scenario” to facilitate these motions. So, what can landowners do to help establish or protect a “no notice” or “no breach” summary disposition under MCR 2.116(C)(10)?

First, there is an important difference based on whether a plaintiff is an invitee or a licensee. An invitee is on property for a commercial purpose. A licensee is generally a social guest or a member of the possessor’s family. Having an invitee on the property requires a landowner to inspect the premises to discover possible dangerous conditions, while having a licensee does not.

There can be no alleged “lack of notice” in an invitee case if the defendant cannot establish reasonable inspections. Adequate documentation of regular inspections, video footage, warning signs and contemporaneous employee/witness statements may be important evidence to establish both lack of notice and reasonable care (i.e., no breach).

In a recent scenario involving a slip and fall on ice outside a business, the defendant was able to produce video footage of how often and when the area was plowed and salted just prior to plaintiff’s injury. Such evidence can go a long way to help defense attorneys argue lack of notice and no issue of fact as to the business’s exercise of reasonable care. 

If the area was plowed and salted two minutes before the plaintiff fell, is there any question of fact as to the reasonableness of the landowner’s actions as to the alleged dangerous condition?  While a judge may still find a jury question, the more indisputable proof of reasonable care and lack of notice defense attorneys can offer, the better the chance judges will grant summary disposition based on these theories. 

In summary, landowners should take preventative measures by:

  • Conducting regular inspections;
  • Making detailed documentation of each inspection;
  • Placing warning signs where appropriate;
  • Installing video cameras to capture both inspections and incidents; and
  • Thoroughly and contemporaneously investigating every incident, including taking photos and statements from employees and eyewitnesses with current contact information.

The question every landowner should ask themselves is – what can I do that will help establish my “reasonable care” and “lack of notice” regarding an area or condition on my property? Is it video of shoveling and plowing snow at my business entrance? Is it a detailed inspection log and warning signs? 

Even if these actions do not support summary disposition, they may be significant to a jury when your attorney asks them to consider whether the defendant landowner exercised reasonable care or had notice of an alleged dangerous condition.”  

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