Laier v. Kitchen, Docket No. 251275.

• Citation: 266 Mich. App. 482,702 N.W.2d 199
• Decision Date: 24 May 2005
• Docket Number: Docket No. 251275.
• Parties: Donald A. LAIER, Personal Representative of the Estate of Rodney Alan Laier, Deceased, Plaintiff-Appellant, v. Leonard K. KITCHEN, Defendant-Appellee.
• Court: Court of Appeal of Michigan (US)

702 N.W.2d 199

266 Mich. App. 482

Donald A. LAIER, Personal Representative of the Estate of Rodney Alan Laier, Deceased, Plaintiff-Appellant, v. Leonard K. KITCHEN, Defendant-Appellee.

Docket No. 251275.

Court of Appeals of Michigan.

Submitted March 1, 2005, at Lansing.

Decided May 24, 2005, at 9:10 a.m.

Released for Publication August 3, 2005.

Laurie S. Longo, Ann Arbor, for the plaintiff.

Conlin, McKenney & Philbrick, P.C. (by William M. Sweet), Ann Arbor, for the defendant.

Before: HOEKSTRA, P.J., and NEFF and SCHUETTE, JJ.

NEFF, J.

Plaintiff appeals as of right an order of the trial court granting summary disposition for defendant and dismissing plaintiff's wrongful death action following his son's death in a farm equipment accident on defendant's property. We reverse and remand.

I. Issue

The decedent, Rodney Laier, was killed in an accident on defendant's property while assisting defendant with hydraulic hose repairs on the front-end loader of a tractor borrowed from plaintiff, which defendant broke while using it to compress materials in a dumpster. During the attempted repair, the bucket on the loader dropped, pinning Rodney against the tractor and killing him. The question presented is whether the open and obvious danger doctrine applies to limit defendant's liability under a theory of ordinary negligence as well as a theory of premises liability. We hold that the open and obvious danger doctrine is inapplicable to plaintiff's ordinary negligence claim. We further hold that although the open and obvious doctrine applies to plaintiff's premises liability claim, genuine issues of material fact preclude summary disposition on the record before us.

II. Facts

On July 30, 1999, defendant and Rodney borrowed a 1967 John Deere model 3020 tractor from plaintiff to use on defendant's horse farm. The tractor was equipped with a large front-end loader bucket that was powered by the tractor's hydraulic system. Defendant used the tractor to compress materials in a dumpster on his property. As defendant lowered the bucket into the dumpster to compress the materials, he struck the dumpster with a hydraulic hose on the front-end loader. The hose was torn from the connector fitting, causing hydraulic fluid to spew from the hose and making the front-end loader inoperable. Defendant clamped off the hose with a Vice-Grip to prevent more fluid from leaking out, permitting the front-end loader to partially function.

The following day defendant contacted Rodney and asked for his assistance in repairing the front-end loader. Defendant and Rodney traveled into town and obtained parts to fix the hydraulic hose. While the factual record of the accident is limited, upon returning to defendant's farm, defendant got on the tractor and raised the bucket four or five feet, then got off the tractor to assist Rodney, who stood between the tractor and the bucket to repair the hose and fitting. It appears that Rodney then removed the broken fitting, and either removed the hose from the good fitting or the hose blew off the good fitting. When the pressure in the hydraulic system was released, the bucket dropped, pinning Rodney between the bucket and the front-end of the tractor. Rodney suffered a large laceration to the left side of his chest and crushing chest trauma that caused his death.

Plaintiff filed this wrongful death action alleging that Rodney's death was caused by defendant's negligence. The trial court granted defendant's motion for summary disposition and dismissed plaintiff's action on the ground that a landowner has no duty to protect or warn an invitee¹ of open and obvious dangers. The court found that the dangers of releasing a Vise-Grip on a hydraulic system were open and obvious and there was no special aspect of the dangerous condition that made the open and obvious condition unreasonably dangerous. The court noted that defendant knew little, if anything, about the repair of the tractor while Rodney was quite knowledgeable and decided how to undertake the repair.

III. Standard of Review

This Court reviews de novo questions of law. Dressel v. Ameribank, 468 Mich. 557, 561, 664 N.W.2d 151 (2003). Likewise, the trial court's decision on a motion for summary disposition is reviewed de novo.

The trial court granted summary disposition for defendant pursuant to MCR 2.116(C)(10), "which tests the factual support for a claim." Dressel, supra.

On review, this Court must consider the record in the light most favorable to the nonmovant to determine whether any genuine issue of material fact exists that precludes entering judgment for the moving party as a matter of law. Id.; Morales v. Auto-Owners Ins. Co., 458 Mich. 288, 294, 582 N.W.2d 776 (1998). Review is limited to the evidence presented to the trial court at the time the motion was decided. Peña v. Ingham Co. Rd. Comm., 255 Mich.App. 299, 313 n. 4, 660 N.W.2d 351 (2003).

IV. Open and Obvious Danger Doctrine

The trial court held that plaintiff's claim was precluded by the open and obvious danger doctrine. However, this case involves claims of both ordinary negligence and premises liability, and it must be analyzed accordingly. The distinction in theory is important and is one that the bench and bar have increasingly failed to recognize in applying the open and obvious danger doctrine.

The open and obvious danger doctrine is commonly applied in products liability and premises liability cases as a limitation on the duty of care owed, often in the context of a duty to warn. Bertrand v. Alan Ford, Inc., 449 Mich. 606, 610, 614, 537 N.W.2d 185 (1995); Glittenberg v. Doughboy Recreational Industries (On Rehearing), 441 Mich. 379, 390, 403, 491 N.W.2d 208 (1992). In general, there is no obligation to warn someone of dangers that are so obvious and apparent that a person may reasonably be expected to discover them and protect himself or herself. Prosser & Keaton, Torts (5th ed), § 61, p. 427. The rationale underlying this doctrine is that "there should be no liability for failing to warn someone of a risk or hazard [that] he appreciated to the same extent as a warning would have provided." Prosser & Keaton, § 96, p 686. Further, invitors "are not absolute insurers of the safety of their invitees." Bertrand, supra at 614, 537 N.W.2d 185.

As our Supreme Court explained in Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 516, 629 N.W.2d 384 (2001), the open and obvious danger doctrine should not be viewed as an exception to the duty generally owed invitees; rather, it is an integral part of the definition of that duty. "Duty exists because the relationship between the parties gives rise to a legal obligation." Bertrand, supra at 614, 537 N.W.2d 185. However, public policy may limit the scope of that duty. Id.

In the context of premises liability, the general rule is that a "premises possessor owes a duty to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land." Lugo, supra at 516, 629 N.W.2d 384. This duty does not require a premises possessor to protect an invitee from open and obvious dangers unless special aspects of a condition make even an open and obvious risk unreasonably dangerous:

When §§ 343 and 343A [of the Restatement Torts, 2d] 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. [Id. at 516-517, 629 N.W.2d 384, quoting Bertrand, supra at 611, 537 N.W.2d 185.]

In the context of products liability, the rules are analogous and based on similar policy. "For policy reasons, the law qualifies a manufacturer's duty to warn by declaring some risks to be outside that duty." Glittenberg, supra at 389, 491 N.W.2d 208. In general, "[m]anufacturers have a duty to warn purchasers or users of dangers associated with the intended use or reasonably foreseeable misuse of their products. . . ." Id. at 387, 491 N.W.2d 208. However, the open and obvious danger rule applies to limit that duty. Id. at 390, 491 N.W.2d 208. "A manufacturer has no duty to warn if it reasonably perceives that the potentially dangerous condition of the product is readily apparent or may be disclosed by a mere casual inspection, and it cannot be said that only persons of special experience will realize that the product's condition or characteristic carries with it a potential danger." Id. at 390-391, 491 N.W.2d 208.

With regard to simple products, "the duty inquiry asks whether people must be told what they already know," e.g., that a knife cuts or a stove burns. Id. at 391, 491 N.W.2d 208. That is, "an obvious danger is no danger to a `reasonably' careful person." Id. at 396, 491 N.W.2d 208. "[I]f the risk is obvious from the characteristics of the product, the product itself telegraphs the precise warning that plaintiffs [would claim] is lacking." Id. at 394, 491 N.W.2d 208. Accordingly, a "manufacturer of a simple product has no duty to warn of the product's potentially dangerous conditions or characteristics that are readily apparent or visible upon casual inspection and reasonably expected to be recognized by the average user of ordinary intelligence." Id. at 385, 491 N.W.2d 208.

Whether a defendant may properly rely on the defense of open and obvious danger depends on the theory of liability at issue. Walker v. Flint, 213 Mich.App. 18, 20-22, 539 N.W.2d 535 (1995). The defense is clearly available in response to a premises liability or product liability claim based on a failure to warn. Glittenberg, supra at...