Lugo v. Ameritech Corp., Inc.

Decision Date03 July 2001
Docket NumberDocket No. 112575, Calendar No. 2.
Citation464 Mich. 512,629 N.W.2d 384
PartiesOdis LUGO, Plaintiff-Appellee, v. AMERITECH CORPORATION, INC., Defendant-Appellant.
CourtMichigan Supreme Court

Lawrence R. Mathews, Detroit, MI, for plaintiff-appellee.

Albert Calille and Lisa M. Bruno, Detroit, MI, for defendant-appellant.



This premises liability action arises from a fall in a parking lot possessed by defendant. Plaintiff apparently fell after stepping in a pothole in the parking lot. The circuit court granted summary disposition in favor of defendant, but the Court of Appeals reversed, rejecting defendant's position that plaintiff's claim was barred by the "open and obvious danger" doctrine. We reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court. The pothole was open and obvious, and plaintiff has not provided evidence of special aspects of the condition to justify imposing liability on defendant despite the open and obvious nature of the danger.


Plaintiff was walking through a parking lot toward defendant's building to pay a telephone bill when she apparently stepped in a pothole and fell. Plaintiff testified at her deposition that she was not watching the ground and that she was concentrating on a truck in the parking lot at the time. However, she also testified that nothing would have prevented her from seeing the pothole.

Defendant moved for summary disposition, claiming that the pothole constituted an open and obvious danger from which it had no duty to protect plaintiff.1 The circuit court granted the motion, stating:

I am going to take the position that there is no material question of fact. I think it is quite clear that the lady was walking along without paying proper attention to the circumstances where she was walking, and there is a legal duty to look where you are walking. I can't be anymore precise than that.

The Court of Appeals reversed the grant of summary disposition in a two-to-one decision. The Court of Appeals majority concluded that the circuit court erred in holding that plaintiff's legal duty to look where she was walking barred her claim. The Court stated that, under principles of comparative negligence, a plaintiff's negligence can only reduce the amount of recovery, not eliminate altogether a defendant's liability. The Court also determined that the open and obvious danger rule did not apply because there was a genuine issue of material fact regarding whether defendant should have expected that a pedestrian might be distracted by the need to avoid a moving vehicle, or might even reasonably step into the pothole to avoid such a vehicle.

We disagree with the holding of the Court of Appeals. Further, while we do not embrace the reasoning of the circuit court, we agree with its result.


The proper focus in this case is the extent of the open and obvious doctrine in premises liability cases. In general, 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. Bertrand v. Alan Ford, Inc., 449 Mich. 606, 609, 537 N.W.2d 185 (1995). However, this duty does not generally encompass removal of open and obvious dangers:

[W]here 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. [Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 96, 485 N.W.2d 676 (1992).]

Accordingly, the open and obvious doctrine should not be viewed as some type of "exception" to the duty generally owed invitees, but rather as an integral part of the definition of that duty. This Court further elaborated in Bertrand, supra at 611, 537 N.W.2d 185:

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.

In sum, the general rule is that a premises possessor is not required to protect an invitee from open and obvious dangers, but, 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.

The following language from Bertrand provides a more concrete discussion of these abstract concepts:

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 [v. The Great Atlantic & Pacific Tea Co., Inc., 395 Mich. 244, 261, 235 N.W.2d 732 (1975).] 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 dangerous condition may be found to have breached the duty to keep the premises reasonably safe. [Bertrand, supra at 614, 537 N.W.2d 185.]

Consistent with Bertrand, we conclude that, with regard to open and obvious dangers, the critical question is whether there is evidence that creates a genuine issue of material fact regarding whether there are truly "special aspects" of the open and obvious condition that differentiate the risk from typical open and obvious risks so as to create an unreasonable risk of harm, i.e., whether the "special aspect" of the condition should prevail in imposing liability upon the defendant or the openness and obviousness of the condition should prevail in barring liability.

An illustration of such a situation might involve, for example, a commercial building with only one exit for the general public where the floor is covered with standing water. While the condition is open and obvious, a customer wishing to exit the store must leave the store through the water. In other words, the open and obvious condition is effectively unavoidable. Similarly, an open and obvious condition might be unreasonably dangerous because of special aspects that impose an unreasonably high risk of severe harm. To use another example, consider an unguarded thirty foot deep pit in the middle of a parking lot. The condition might well be open and obvious, and one would likely be capable of avoiding the danger. Nevertheless, this situation would present such a substantial risk of death or severe injury to one who fell in the pit that it would be unreasonably dangerous to maintain the condition, at least absent reasonable warnings or other remedial measures being taken.2 In sum, only those special aspects that give rise to a uniquely high likelihood of harm or severity of harm if the risk is not avoided will serve to remove that condition from the open and obvious danger doctrine.3

However, typical open and obvious dangers (such as ordinary potholes in a parking lot) do not give rise to these special aspects.4 Using a common pothole as an example, the condition is open and obvious and, thus, cannot form the basis of liability against a premises possessor. The condition does not involve an especially high likelihood of injury. Indeed, an "ordinarily prudent" person, Bertrand, supra at 615, 537 N.W.2d 185, would typically be able to see the pothole and avoid it. Further, there is little risk of severe harm. Unlike falling an extended distance, it cannot be expected that a typical person tripping on a pothole and falling to the ground would suffer severe injury.


Applying these general principles to the case at hand, we conclude that defendant was entitled to summary disposition under MCR 2.116(C)(10), which provides for summary disposition when "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." Further, the party opposing a motion for summary disposition (in this case plaintiff) is required by MCR 2.116(G)(4) to "set forth specific facts showing that there is a genuine issue for trial" with regard to the issues raised in the summary disposition motion. In this case, the disputed issue was whether plaintiff's claim was barred by the open and obvious danger doctrine.

The evidence submitted to the trial court allows for no genuine issue of material fact with respect to whether plaintiff's claim was barred by the open and obvious danger doctrine. This case simply involved a common pothole in a parking lot. While plaintiff argues that the pothole was filled with debris, the evidence presented to the trial court simply does not allow a reasonable inference that the pothole was obscured by debris at the time of plaintiff's fall. Indeed, plaintiff's testimony at her deposition was that she did not see the pothole because she "wasn't looking down," not because of any debris obscuring the pothole.

The present case is substantially similar to Maurer v. Oakland Co Parks & Recreation Dep't, one of the two consolidated cases decided by this Court in Bertrand. In Maurer, the plaintiff slipped and fell on an "unmarked cement step" as she was leaving a rest room area at a park. The plaintiff alleged that the defendant was negligent for not marking the step with a contrasting color...

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