Estate of Livings v. Sage's Inv. Grp., LLC, No. 159692

CourtSupreme Court of Michigan
Writing for the CourtVIVIANO, J.
Docket NumberNo. 159692
Decision Date30 June 2021

ESTATE OF DONNA LIVINGS, Plaintiff-Appellee,
SAGE'S INVESTMENT GROUP, LLC, Defendant-Appellant,

No. 159692


Argued: November 10, 2020
June 30, 2021


This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.

Reporter of Decisions: Kathryn L. Loomis

Donna Livings brought an action in the Macomb Circuit Court against her employer, Grand Dimitre's of Eastpointe Family Dining; Sage's Investment Group, LLC, which leased space to Grand Dimitre's; and T & J Landscaping & Snow Removal, Inc., alleging negligence based on premises liability after she slipped on ice while attempting to cross the employee parking lot to get to her job. Livings's claims against T & J Landscaping were resolved through the case-evaluation process. Sage's Investment Group moved for summary disposition under MCR 2.116(C)(10), arguing that the snow and ice were open and obvious and that Livings could have avoided these conditions by parking elsewhere and using the front door instead of the employee entrance. Grand Dimitre's also moved for summary disposition. The trial court, Edward A. Servitto, J., granted summary disposition with respect to Grand Dimitre's but denied it as to Sage's Investment Group, ruling that a question of fact existed as to whether Livings would have been permitted to use the front parking lot and entrance. Sage's Investment Group sought leave to appeal, which the Court of Appeals granted. The Court of Appeals, BECKERING and SHAPIRO, JJ. (TUKEL, J., concurring in part and dissenting in part), affirmed in an unpublished per curiam opinion issued February 26, 2019 (Docket No. 339152), concluding that although the ice was open and obvious, there was a genuine issue of material fact regarding whether the hazard was effectively unavoidable. Judge TUKEL, dissenting in part, would have held that because Livings could have skipped work rather than confront the snow and ice, the hazard was not effectively unavoidable. Sage's Investment Group again sought leave to appeal. The Supreme Court ordered and heard oral argument on whether to grant the application or take other action. 505 Mich 985 (2020). After Livings's death in March 2020, her estate was substituted as the named plaintiff.

In an opinion by Justice VIVIANO, joined by Chief Justice MCCORMACK and Justices BERNSTEIN and CAVANAGH, the Supreme Court held:

Under the open and obvious danger doctrine, a hazard can be deemed effectively unavoidable if the plaintiff confronted it to enter their place of employment for purposes of work. In these circumstances, it is possible for a defendant to foresee that the employee will confront the hazard. The fact that the employee could have failed to report to work as required by their employer is not a reasonable alternative. Courts addressing this issue should consider whether a

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reasonable person in the plaintiff's circumstances would have used any available alternatives to avoid the hazard. In the present case, because Livings's fall on the snow and ice occurred as she attempted to enter her workplace, she has raised an issue of material fact as to whether the conditions of the parking lot were effectively unavoidable.

1. To prevail on a premises-liability claim, a plaintiff must establish that the defendant owed them a duty of care. In the present context, a possessor of land owes a duty to exercise reasonable care to protect invitees from dangerous conditions on the land. This duty generally does not extend to dangerous conditions that are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them. However, if special aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to protect invitees from that risk. Special aspects of an open and obvious hazard can give rise to liability when the danger is unreasonably dangerous or when the danger is effectively unavoidable. The standard for effective unavoidability is that a person, for all practical purposes, must be required or compelled to confront a dangerous hazard. The Second Restatement of Torts, after setting out the general standard for premises liability, explains that a premises possessor might expect a reasonable person to confront an obvious hazard when the advantages of doing so would outweigh the apparent risk, and it offers as an example an illustration in which a premises owner is liable to an employee of its lessor when the employee is injured by falling on an obviously slippery waxed stairway when the employee's only alternative to taking the risk was to forgo employment. Other jurisdictions follow this approach, and Michigan's open and obvious danger jurisprudence has long been informed by, and remains consistent with, the Restatement. In Michigan, it is reasonable to anticipate that many businesses will remain open even during bleak winter conditions. A landlord cannot expect that every one of its tenant's employees will be permitted to stay home on snowy days. Therefore, it is reasonable to anticipate that a person will proceed to encounter a known or obvious danger for purposes of their work. Accordingly, an open and obvious hazard can become effectively unavoidable if the employee confronted it to enter their workplace for work purposes. This standard's application will depend on the facts of the case, but the key is whether alternatives were available and would have been used by a reasonable person in the employee's circumstances. If an employee could have avoided the condition through the use of due care under the circumstances, then the condition was not effectively unavoidable. Another consideration is whether the employee would need to breach the employer's policies in order to avoid the condition and what the consequences of that breach might be. What a court cannot conclude, however, is that a hazard was avoidable simply because the employee could have elected to skip work or breach other requirements of their employment.

2. In this case, there was a genuine issue of material fact regarding whether the hazard was effectively unavoidable. Livings presented evidence that snow and ice covered the entire parking lot, encompassing both the employee and customer sections. It is undisputed that Livings confronted the snow and ice in order to enter the restaurant in order to begin her shift. From this, a fact-finder could reasonably conclude that Livings confronted the condition to enter her place of employment for work purposes. Livings presented evidence that she could not have avoided the condition by parking in the customer lot because it was also covered in snow and ice, and she could not have waited until the condition had resolved without effectively skipping work, which was not a reasonable alternative. Accordingly, Sage's Investment Group has not shown as a matter of law

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that any reasonable alternative would have allowed Livings to avoid the hazard. Consequently, a genuine question of material fact exists as to whether the condition here was effectively unavoidable.

Court of Appeals judgment affirmed; case remanded to the trial court for further proceedings.

Chief Justice MCCORMACK, joined by Justices BERNSTEIN and CAVANAGH, concurring, agreed in full with the majority opinion but wrote separately to express her reservations about the continued reliance on the special-aspects doctrine articulated in Lugo v Ameritech Corp, Inc, 464 Mich 512 (2001). She noted that the special-aspects doctrine had been widely criticized by commentators, was an unnecessary departure from the sensible and straightforward approach of the Second Restatement of Torts, had not been embraced or adopted by any other jurisdiction, and used unlikely hypothetical examples to further narrow what was already a narrow exception to the general rule of nonliability for open and obvious conditions. Given that Michigan had no state-specific need for a special rule regarding premises owners and invitees, Chief Justice MCCORMACK suggested that the Court reconsider the continued viability of the special-aspects doctrine in an appropriate case.

Justice ZAHRA, dissenting, stated that the majority opinion departed from nearly two decades of the Court's premises-liability jurisprudence by transforming the special-aspects doctrine from an objective inquiry to a plaintiff-focused inquiry encompassing the personal inclinations of each particular plaintiff encountering that condition, thereby creating the very subclass of invitees that the Court had rejected in Hoffner v Lanctoe, 492 Mich 450 (2012). He disagreed with the majority's endorsement of the Restatement's illustration regarding employees, which he stated was inconsistent with the Court's caselaw and would inject unpredictability into Michigan's premises-liability law by leading to inconsistent rulings based on the special circumstances of each plaintiff at issue. He would have applied the Court's well-established open and obvious danger caselaw to conclude that a person's employment is not a relevant consideration in determining whether a condition was "effectively unavoidable," reversed the Court of Appeals judgment, and remanded the case to the trial court for entry of summary disposition in favor of Sage's Investment Group.

Justice CLEMENT, dissenting, agreed with Justice ZAHRA that today's ruling deviated from Hoffner and its related caselaw even while purporting not to. While she was less sanguine than he was about the affirmative benefits of this area of Michigan caselaw and would be open to considering different approaches, she stated that any changes the Court adopted ought to offer greater clarity than the status quo. Because she did not believe the...

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