Bertrand v. Alan Ford, Inc.

• Decision Date: 15 August 1995
• Docket Number: 98108,Nos. 1,Docket Nos. 96603,2,s. 1
• Citation: 449 Mich. 606,537 N.W.2d 185
• Parties: Flora J. BERTRAND and Thomas E. Bertrand, her husband, Plaintiffs-Appellees, v. ALAN FORD, INC., a Michigan corporation, Defendant-Appellant. Kathleen MAURER and Roger Maurer, Plaintiffs-Appellees, v. OAKLAND COUNTY PARKS AND RECREATION DEPARTMENT, Defendant-Appellant. (After Remand). Calendar
• Court: Michigan Supreme Court

Page 185

537 N.W.2d 185

449 Mich. 606

Flora J. BERTRAND and Thomas E. Bertrand, her husband, Plaintiffs-Appellees, v. ALAN FORD, INC., a Michigan corporation, Defendant-Appellant.

Kathleen MAURER and Roger Maurer, Plaintiffs-Appellees, v. OAKLAND COUNTY PARKS AND RECREATION DEPARTMENT,

Defendant-Appellant. (After Remand).

Docket Nos. 96603, 98108.

Calendar Nos. 1, 2.

Supreme Court of Michigan.

Argued March 7, 1995.

Decided Aug. 15, 1995.

Hill, Lewis by David M. Lawson and Margaret C. Alli, Birmingham, for plaintiffs Bertrand.

Lakin, Worsham & Victor, P.C. by Larry A. Smith, Southfield, for plaintiffs Mauer.

Beier, Howlett by Robert G. Waddell, Bloomfield Hills, and Bell & Hertler, P.C., of counsel by John W. Bell, Pontiac, for defendant Alan Ford, Inc.

Vandeveer, Garzia by John J. Lynch and David B. Timmis, Birmingham, for defendant Oakland County Department of Parks and Recreation.

MICHAEL F. CAVANAGH, Justice.

These two premises liability cases present the issue of the scope of the duty owed by an owner or occupier of land to its business invitees regarding steps on its premises.

I

The general principles of premises liability are well understood and need not be reexamined here. Essentially, social policy imposes on possessors of land a legal duty to protect their invitees on the basis of the special relationship that exists between them. The rationale for imposing liability is that the invitor is in a better position to control the safety aspects of his property when his invitees entrust their own protection to him while entering his property. Williams v. Cunningham Drug Stores, Inc, 429 Mich. 495, 499, 418 N.W.2d 381 (1988). The invitor's legal duty is "to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land" that the landowner knows or should know the invitees will not discover, realize, or protect themselves against. Id., citing 2 Restatement Torts, 2d, § 343, pp 215-216. Section 343 provided:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger. [Emphasis added.]

A claim that the invitor has breached the duty to exercise reasonable care to protect invitees from unreasonable risks of harm has traditionally been premised on three theories: failure to warn, negligent maintenance, or defective physical structure. Consequently, invitors may be held liable for an invitee's injuries that result from a failure to warn of a hazardous condition or from the "negligent maintenance of the premises or defects in the physical structure of the building." Williams, supra at 499-500, 418 N.W.2d 381.

The Restatement provided:

A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. [2 Restatement Torts, 2d, § 343A(1), p 218 (emphasis added).]

The accompanying comments provided that §§ 343 and 343A are to be read together. ¹ Where a condition is open and obvious, the scope of the possessor's duty may be limited. ² While there may be no obligation to warn of a fully obvious condition, the possessor still may have a duty to protect an invitee against foreseeably dangerous conditions. Thus, the open and obvious doctrine does not relieve the invitor of his general duty of reasonable care.

When §§ 343 and 343A are read together, the rule generated is that if the particular activity or condition creates a risk of harm only because the invitee does not discover the condition or realize its danger, then the open and obvious doctrine will cut off liability if the invitee should have discovered the condition and realized its danger. On the other hand, if the risk of harm remains unreasonable, despite its obviousness or despite knowledge of it by the invitee, then the circumstances may be such that the invitor is required to undertake reasonable precautions. ³ The issue then becomes the standard of care and is for the jury to decide.

A comment accompanying the Restatement explained:

There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.

Such reason to expect harm to the visitor from known or obvious dangers may arise, for example, where the possessor has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Such reason may also arise where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk. In such cases the fact that the danger is known, or is obvious, is important in determining whether the invitee is to be charged with contributory negligence, or assumption of risk.... It is not, however, conclusive in determining the duty of the possessor, or whether he has acted reasonably under the circumstances. [2 Restatement Torts, 2d, § 343A, comment f, p 220 (emphasis added).]

We recently considered the open and obvious danger doctrine in Riddle v. McLouth Steel Products, 440 Mich. 85, 485 N.W.2d 676 (1992). There, we were concerned with jury instructions regarding the duty of a possessor of land regarding open and obvious dangers. Both the majority and the dissent agreed that § 343A applies in Michigan. Id. at 94 (majority); id. at 117 (Levin, J., dissenting). Both opinions further agreed that there is no absolute obligation to warn of open and obvious dangers. Id. at 97 (majority); id. at 123-125 (Levin, J., dissenting).

The majority in Riddle stated:

[T]he "no duty to warn of open and obvious danger" rule is a defensive doctrine that attacks the duty element that a plaintiff must establish in a prima facie negligence case. A negligence action may only be maintained if a legal duty exists which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm. If the plaintiff is a business invitee, the premises owner has a duty to exercise due care to protect the invitee from dangerous conditions. Beals [v. Walker, 416 Mich. 469, 480, 331 N.W.2d 700 (1982) ]. However, where the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, an invitor owes no duty to protect or warn the invitee unless he should anticipate the harm despite knowledge of it on behalf of the invitee. Williams, supra.

Once a defendant's legal duty is established, the reasonableness of the defendant's conduct under that standard is generally a question for the jury.

... The jury must decide whether the defendant breached the legal duty owed to the plaintiff, that the defendant's breach was the proximate cause of the plaintiff's injuries, and thus, that the defendant is negligent.

If, for example, the dangerous conditions on the premises are hidden or latent, the premises owner is obliged to warn the invitee of the dangers. Defendant's failure to warn under these circumstances may indicate a breach of the legal duty owed plaintiff. If the conditions are known or obvious to the invitee, the premises owner may nonetheless be required to exercise reasonable care to protect the invitee from the danger. Quinlivan [v. The Great Atlantic & Pacific Tea Co. Inc, 395 Mich. 244, 260-261, 235 N.W.2d 732 (1975) ]. What constitutes reasonable care under the circumstances must be determined from the facts of the case. While the jury may conclude that the duty to exercise due care requires the premises owner to warn of a dangerous condition, there is no absolute duty to warn invitees of known or obvious dangers. [Id. at 95-97 (citation omitted) (emphasis added).]

Thus, even though there may not be an absolute obligation to provide a warning, this rule does not relieve the invitor from his duty to exercise reasonable care to protect his invitees against known or discoverable dangerous conditions. Williams, supra at 499, 418 N.W.2d 381, citing 2 Restatement Torts, 2d, § 343, pp 215-216. Duty exists because the relationship between the parties gives rise to a legal obligation. Moning v. Alfono, 400 Mich. 425, 438-439, 254 N.W.2d 759 (1977). However, overriding public policy may limit the scope of that duty. Id. at 438, 254 N.W.2d 759.

With the axiom being that the duty is to protect invitees from unreasonable risks of harm, the underlying principle is that even though invitors have a duty to exercise reasonable care in protecting their invitees, they are not absolute insurers of the safety of their invitees. Quinlivan, supra at 261, 235 N.W.2d 732. Consequently, because the danger of tripping and falling on a step is generally open and obvious, the failure to warn theory cannot establish liability. However, there may be special aspects of these particular steps that make the risk of harm unreasonable, and, accordingly, a failure to remedy the...