Novotney v. Burger King Corp., Docket No. 116731

• Citation: 470 N.W.2d 93,188 Mich.App. 705
• Decision Date: 06 May 1991
• Docket Number: Docket No. 116731
• Court: Court of Appeal of Michigan (US)
• Parties: Luella J. NOVOTNEY and Ernest Novotney, Plaintiffs-Appellants, v. BURGER KING CORPORATION and R & G Quality Foods d/b/a Burger King, Defendants-Appellees. (On Rehearing) 188 Mich.App. 705, 470 N.W.2d 93

Page 93

470 N.W.2d 93

Luella J. NOVOTNEY and Ernest Novotney Plaintiffs-Appellants, v. BURGER KING CORPORATION and R & G Quality Foods d/b/a Burger King, Defendants-Appellees. (On Rehearing)

Docket No. 116731.

188 Mich.App. 705, 470 N.W.2d 93

Court of Appeals of Michigan.

Submitted June 6, 1990, at Lansing.

Decided May 6, 1991, at 9:25 a.m.

Released for Publication June 21, 1991.

[188 MICHAPP 706] Law Offices of Samuel I. Bernstein by Edmund O. Battersby, Farmington Hills, for plaintiffs-appellants.

Siemion, Huckabay, Bodary, Padilla & Morganti, P.C. by Barbara A. Rush, Detroit, for defendants-appellees.

Before SAWYER, P.J., and MICHAEL J. KELLY and MURPHY, JJ.

MURPHY, Judge.

We granted rehearing of this appeal to reconsider the circuit court's order granting summary disposition in favor of defendants. We now reverse.

This is a negligence case arising out of a fall that occurred on defendants' premises. Plaintiffs were business invitees at defendants' restaurant and, while leaving the restaurant, plaintiff Luella Novotney, an elderly woman, slipped on a ramp directly adjacent to the sidewalk coming out of the restaurant and is alleged to have fractured and severely sprained her left ankle. The ramp was a handicap access ramp, apparently the same color and made up of the same materials as the adjacent sidewalk, and gradually declined on its sides to the level of the parking lot. Plaintiff testified at deposition that she did not realize that the ramp gradually declined and that she lost her balance when her foot came down lower than she expected. It was claimed that the ramp's gradual slope down to the parking lot caused her to fall and fracture her ankle. At the hearing on the motion for summary disposition, plaintiffs presented the affidavit of [188 MICHAPP 707] their construction safety expert, who opined that the ramp was defective in that it was improperly designed or maintained. The trial court, in granting defendants summary disposition, concluded that the nature of the ramp and any danger presented by the ramp was open and obvious.

The question presented by the trial court's conclusion in this case is whether plaintiffs' claim fails because there is no duty to warn a business invitee of an open and obvious danger.

Although it has been stated that the occupier of land is not an insurer of the safety of the invitee, there remains the basic duty to exercise reasonable care for the protection of the invitee. Kroll v. Katz, 374 Mich. 364, 373, 132 N.W.2d 27 (1965); Powers v. Huizing, 9 Mich.App. 437, 441, 157 N.W.2d 432 (1968); Prosser & Keeton, Torts (5th ed), Sec. 61, p. 425. This is so because there is an implied representation made by the occupier of the land to the invitee that it has been prepared for the invitee's reception. Prosser & Keeton, 422. Thus, the land must be reasonably safe for the visit. Torma v. Montgomery Ward & Co., 336 Mich. 468, 58 N.W.2d 149 (1953). The duty of the possessor of land to an invitee is adequately set forth in a standard jury instruction, SJI2d 19.03.

Defendants rely on Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 418 N.W.2d 381 (1988), for the proposition that an occupier of land does not owe a duty with respect to dangers which are so obvious and apparent that the invitee may be expected to discover them himself. Although such dicta does appear in Williams, we do not read the holding in Williams to stand for that proposition. Unlike this case, Williams did not deal with a claimed physical defect in the business owner's premises. Further, the issue addressed in Williams was a limited one, to-wit, "whether a merchant's [188 MICHAPP 708] duty to exercise reasonable care includes providing armed, visible security guards to protect invitees from the criminal acts of third parties." Id., p. 500, 418 N.W.2d 381. We conclude that Williams is neither factually nor legally controlling.

Recently, however, this Court did examine the application of the so-called "no duty to warn of an open and obvious danger rule" in a premises liability case. In Riddle v. McLouth Steel Products Corp., 182 Mich.App. 259, 263-266, 451 N.W.2d 590 (1990), this Court held that the no-duty rule should be abolished in Michigan, stating in part:

We believe that the no-duty rule, like assumption of the risk, should be abolished in Michigan. See Felgner v. Anderson, 375 Mich. 23, 54; 133 N.W.2d 136 (1965). Both the invitee and invitor have a duty to exercise reasonable care under hazardous circumstances. Public policy supports apportionment of damages according to fault. Therefore, the invitee's knowledge of a dangerous condition is properly considered as it relates to the invitee's negligence and mitigation of damages in accordance with comparative negligence principles. See, e.g., Forche v. Gieseler, 174 Mich.App. 588, 597; 436 N.W.2d 437 (1989). The obviousness of the danger may relate to the negligence of both the invitor and the invitee. However, it does not automatically absolve the invitor of liability. [Id., p. 266, 451 N.W.2d 590.]

See also Pressley v. V.F.W. Memorial Home, 185 Mich.App. 709, 462 N.W.2d 830 (1990). We are in agreement with Riddle and Pressley.

A rule of law which provides that a business invitor who creates or allows an open and obvious danger on his premises has no duty to its invitees to correct it because it is open and obvious is not rational. Rather, questions concerning the conduct of the invitee and the obviousness of the danger as [188 MICHAPP 709] they relate to whether either the invitor or the invitee, or both, were negligent are better resolved by the trier of fact. Riddle, supra. Cf. Quinlivan v. The Great Atlantic & Pacific Tea Co., Inc., 395 Mich. 244, 261, 235 N.W.2d 732 (1975) (the hazards of snow and ice accumulation are not obvious to all; the invitee's conduct was relevant in the context of contributory negligence).

In the present case, plaintiffs were able to establish questions of fact concerning whether the handicap access ramp was defective and whether the hazard created by the ramp was open and obvious. Therefore, summary disposition was inappropriate.

Reversed and remanded.

MICHAEL J. KELLY, J., concurs.

SAWYER, Presiding Judge (dissenting).

I respectfully dissent.

In our original opinion, we affirmed the grant of summary disposition, concluding that there was no genuine issue of material fact with respect to the issue whether the danger was open and obvious. ¹ My colleagues are now willing to grant rehearing and conclude that the open and obvious danger doctrine is no longer viable in light of the adoption of comparative negligence. ² I am not.

I recognize that the majority's decision is consistent with a number of recent decisions of this Court. See Pressley v. V.F.W. Memorial Home, Inc., [188 MICHAPP 710] 185 Mich.App. 709, 462 N.W.2d 830 (1990); Riddle v. McLouth Steel Products Corp., 182 Mich.App. 259, 451 N.W.2d 590 (1990); Forche v. Gieseler, 174 Mich.App. 588, 436 N.W.2d 437 (1989). I also recognize that these cases were incorrectly decided and are directly contradictory to the well-developed law of this state and centuries of tort law.

I was a member of the panel which decided Pressley, supra, and vigorously objected to the conclusion that the adoption of comparative negligence somehow magically increased a landowner's duty to his invitees and licensees:

First, and foremost, the Supreme Court reiterated the open and obvious dangers doctrine as recently as 1988 in Williams [v. Cunningham Drug Stores, Inc., 429 Mich. 495, 418 N.W.2d 381 (1988) ] some nine years after adopting comparative negligence in Placek v. Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979). Second, it is for the Supreme Court, not this Court, to overrule Supreme Court precedent. See People v. Mitchell, 428 Mich. 354, 369-370, 408 N.W.2d 798 (1987). Third, considerations of stare decisis aside, comparative negligence does not itself directly involve issues of duty or breach of duty. Rather, it deals with the proper and just apportionment of fault, and responsibility, where both the plaintiff and the defendant are negligent. Comparative negligence does not, however, create negligence where none existed before that doctrine was adopted. That is, the adoption of comparative negligence did not create duties where none existed before.

Rather, the more fundamental question is what duty is owed by a possessor of land to his invitees and licensees. Our Supreme Court has long held that no further duty is owed by a possessor of land to an invitee or licensee once the invitee or licensee is aware of the alleged dangerous condition. The Supreme Court's having defined the duty, it is for the Supreme Court, and not this Court, to redefine that duty, if a redefinition is even in [188 MICHAPP 711] order. [Pressley, supra, 185 Mich.App. at 712-713, 462 N.W.2d 830 (Sawyer, J., dissenting).]

The majority in the case at bar repeats the mistake of these prior cases: it confuses the concept of duty with the doctrine of comparative negligence and reaches the erroneous conclusion that comparative negligence can somehow change the nature of the duty owed. In order to establish that a defendant is liable in a negligence action, it must be shown that the defendant owed a legal duty to the plaintiff and that he breached that duty. Roulo v. Automobile Club of Michigan, 386 Mich. 324, 328, 192 N.W.2d 237 (1971). It therefore necessarily follows that if the defendant does not owe the plaintiff a duty, or did not breach a duty which was owed, the defendant is not negligent.

If the defendant is not negligent, it also necessarily follows that comparative negligence is not an issue. That is, if the defendant is not negligent, then there is obviously no negligence of the defendant to compare with the plaintiff's own negligence. Rather, the only explanations available are that the plaintiff's injuries were due to the plaintiff's own negligence, to the negligence...