Blackwell v. Franchi

• Citation: 327 Mich.App. 354,933 N.W.2d 762
• Decision Date: 14 March 2019
• Docket Number: No. 328929,328929
• Parties: Susan BLACKWELL, Plaintiff-Appellant, v. Dean FRANCHI and Debra Franchi, Defendants-Appellees.
• Court: Court of Appeal of Michigan (US)

327 Mich.App. 354

933 N.W.2d 762

Susan BLACKWELL, Plaintiff-Appellant,

v.Dean FRANCHI and Debra Franchi, Defendants-Appellees.

No. 328929

Court of Appeals of Michigan.

Submitted August 17, 2018, at Lansing.

Decided March 14, 2019, at 9:10 a.m.

ON REMAND

Shapiro, J.

This case returns to us on remand from the Supreme Court. The Court denied defendants’ request to review our holding reversing the trial court’s conclusion that the open and obvious danger doctrine barred plaintiff’s claim. The Court, however, remanded the case to us

for consideration of this issue it has not yet addressed: whether defendants owed plaintiff a duty to warn about the step because the plaintiff did not know or have reason to know of the condition and the risk involved, and it involved an unreasonable risk of harm, and the defendants should not have expected that a licensee like the plaintiff would discover or realize the danger .... [ Blackwell v. Franchi , 502 Mich. 918, 920, 914 N.W.2d 900 (2018) (quotation marks and citation omitted).]

Our prior opinion set forth the background to this case. Blackwell v. Franchi , 318 Mich. App. 573, 899 N.W.2d 415 (2017). The condition alleged by plaintiff is a nonvisible¹ eight-inch floor level drop-off as one walks from the hallway in defendants’ home into the darkened mudroom of that home. Plaintiff alleges that the nonvisible change in floor level caused her to fall as she attempted to enter the mudroom and that she suffered injury as a result. We conclude that defendants had a general duty to plaintiff as a licensee and that whether defendants violated that duty by their specific actions or omissions is a question for the fact-finder.

The general duty owed by premises owners to licensees is well settled and, as the Supreme Court’s order observes, is properly articulated in Restatement Torts, 2d, § 342, p. 210, as follows:

A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, (a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and

(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and

(c) the licensees do not know or have reason to know of the condition and the risk involved. [ Blackwell , 502 Mich. at 918-919, 914 N.W.2d 900 (quotation marks and citation omitted).]

The Supreme Court has previously provided guidance on how to analyze whether a particular action or omission violates a general standard of care or general duty. In Case v. Consumers Power Co. , 463 Mich. 1, 7, 615 N.W.2d 17 (2000), the Court explained that whether an alleged tortfeasor’s action violated that general standard of care is, in essence, a determination of the specific duty under the facts of the given case. In other words, when determining whether a defendant violated the general standard of care, the jury must determine what a defendant need do (or not do) to meet that general standard under the specific facts before it:

Ordinarily, it is for the jury to determine whether a defendant’s conduct fell below the general standard of care. Stated another way, the jury usually decides the specific standard of care that should have been exercised by a defendant in a given case. [ Id . (emphasis added).]

Case went on to quote the United States Supreme Court’s caution to courts that in performing their responsibility to define general duties, they should not define what a defendant’s specific duty was given the facts and circumstances of a particular case. That determination is left to the fact-finder:

"There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms "ordinary care," "reasonable prudence," and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state of affairs . [ Id . at 10, 615 N.W.2d 17, quoting Grand Trunk R. Co. v. Ives , 144 U.S. 408, 417, 12 S.Ct. 679, 36 L.Ed. 485 (1892) (emphasis added).]

Having said that, Case also acknowledged two exceptions to this principle: "[T]he court sometimes decides the specific standard of care if it is of the opinion ‘that all reasonable persons would agree or there is an overriding legislatively or judicially declared public policy ....’ " Id . at 7, 615 N.W.2d 17, quoting Moning v. Alfono , 400 Mich. 425, 438, 254 N.W.2d 759 (1977) (emphasis omitted).

We find no overriding legislative public policy that would require a court to determine the specific standard of care applicable in this case. None has been cited to us, and our own research has not revealed any. And in considering whether there is an overriding judicially declared public policy, we are mindful of the Supreme Court’s admonition that a determination of public policy "must be more than a different nomenclature for describing the personal preferences of individual judges ...." Terrien v. Zwit, 467 Mich. 56, 66, 648 N.W.2d 602 (2002). Undoubtedly, in any given case, some jurists might prefer that the specific standard of care be narrower or broader than that which a jury might determine. However, those personal preferences cannot be said to constitute public policy grounds to remove the jury’s power and responsibility to determine the specific standard of care. It is the trial court’s role to give proper instructions concerning the general standard of care, but it is the jury’s role to determine just what that general standard requires of a party under the specific facts and circumstances in a particular case. Case , 463 Mich. at 7, 615 N.W.2d 17 ; Moning , 400 Mich. at 438, 254 N.W.2d 759.

Given the lack of overriding policy concerns, we must next consider whether "all reasonable persons would agree" that the specific standard of care applicable under the facts of this case did not require defendants to warn plaintiff of the floor level change.² Case , 463 Mich. at 7, 615 N.W.2d 17 (quotation marks and citation omitted). We hold that the answer to this question is "no" because a reasonable person could conclude that the specific standard of care in this case included giving a warning to plaintiff and other licensees that upon entering the mudroom they would encounter an eight-inch drop-off that was not visible.³ Put in the terms of the remand order, reasonable persons could disagree on whether the alleged condition, i.e., the nonvisible change in floor level, presented an unreasonable risk of harm, whether plaintiff knew or had reason to know of the condition and the risk involved, and whether defendants should have expected that plaintiff would not have discovered the hazard before falling victim to it.

Accordingly, we again reverse the grant of summary disposition and remand to the circuit court for trial. Plaintiff may tax her costs as the prevailing party. MCR 7.219(A). We do not retain jurisdiction.

Gleicher, J., concurred with Shapiro, J.

Gleicher, J. (concurring)

Susan Blackwell attended a holiday party in the Franchi home. Debra Franchi suggested that guests place their purses in the "mudroom." A dimly lit hallway led from the Franchis’ foyer to the mudroom. The mudroom itself was dark. Unbeknownst to Blackwell, there was an eight-inch drop between the hallway floor and that of the mudroom. Blackwell fell when she entered the mudroom. The question presented in our Supreme Court’s remand order is whether the Franchis had a duty to warn Blackwell of the step.

Restatement Torts, 2d, § 342, p. 210, establishes the duty of care the Franchis owed to Blackwell, a licensee. The duty has two components: a requirement that the landowner exercise reasonable care to make a known dangerous condition safe, and a duty to warn. Id . at § 342(b). A duty to warn arises when a landowner knows of a condition, "should realize that it involves an unreasonable risk of harm ... and should expect that [a licensee] will not discover or realize the danger ...." Id . at § 342(a). The lead opinion concludes that the evidence fulfills the Restatement requirements, necessitating that a jury determine whether the Franchis bear liability for the injuries Blackwell sustained when she fell. I concur and write separately to expand the lead opinion’s analysis and to respectfully respond to the dissent.

I

The Restatement’s provisions apply generally to premises-liability cases involving social guests and licensees. They have been adopted by our Supreme Court. Preston v. Sleziak , 383 Mich. 442, 453, 175 N.W.2d 759 (1970), overruled in part on other grounds by Stitt v. Holland Abundant Life Fellowship , 462 Mich. 591, 614 N.W.2d 88 (2000).¹ In this sense, the duty applicable to this case is not subject to debate.

Legal duties such as § 342 incorporate broad policy choices. See Stitt , 462 Mich. 591, 614 N.W.2d 88 (holding that as a matter of policy, a noncommercial visitor is a licensee rather than an invitee), and MacDonald v. PKT, Inc. , 464 Mich. 322, 335, 628 N.W.2d 33 (2001) ("A premises owner’s duty is limited to responding reasonably to situations occurring on the premises because, as a matter of public policy, we should not expect invitors to assume that others will disobey the law."). Courts select the policies...