Cheryl Dorsey v. Taubman Auburn Hills Associates ( 2017 )


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  •                           STATE OF MICHIGAN
    COURT OF APPEALS
    CHERYL DORSEY,                                                       UNPUBLISHED
    April 13, 2017
    Plaintiff-Appellant,
    v                                                                    No. 330690
    Oakland Circuit Court
    TAUBMAN AUBURN HILLS ASSOCIATES, a                                   LC No. 2014-142098-NO
    Limited Partnership,
    Defendant-Appellee.
    Before: O’CONNELL, P.J., and GLEICHER and BOONSTRA, JJ.
    GLEICHER, J. (concurring).
    I concur with the majority only because Riddle v McLouth Steel Prod Corp, 
    440 Mich 85
    ,
    95; 485 NW2d 676 (1992), and its progeny compel me to do so. This case exemplifies the
    juridical contradictions inherent in our state’s “open and obvious” jurisprudence, precipitating
    this separate opinion.
    Viewed in the light most favorable to Dorsey, defendant negligently created a dangerous
    condition by repairing a sidewalk joint with an inappropriate material that appeared solid, but
    gave way under the weight of a foot. On the other hand, as the majority accurately observes, “a
    reasonably prudent person would be aware that joints, cracks, or other uneven areas of a
    sidewalk can present a tripping hazard.” A jury could easily find that both parties were
    negligent. Given that we live in a comparative negligence world, why does Dorsey’s negligence
    bar her recovery while the negligence of defendant is excused?
    Our Supreme Court long ago banished the notion that under the common law, an injured
    person’s contributory fault should eliminate a fair allocation of tort liability. See Placek v
    Sterling Hts, 
    405 Mich 638
    ; 275 NW2d 511 (1979). Under a comparative fault regime, the trier
    of fact determines the relative degree of the parties’ negligence. In a case like this, the calculus
    would certainly include the obviousness of the danger and its visibility. So why does an open
    and obvious danger absolve a negligent landowner from any liability by negating the
    landowner’s duty to keep its premises in reasonable repair? And lest there be any confusion
    regarding a landowner’s duty, the Supreme Court has repeatedly elucidated that a landowner
    owes to an invitee such as Dorsey an “obligation to also make the premises safe, which requires
    the landowner to inspect the premises and depending upon the circumstances, make any
    -1-
    necessary repairs or warn of any discovered hazards.” Stitt v Holland Abundant Life Fellowship,
    
    462 Mich 591
    , 597; 614 NW2d 88 (2000).
    In Riddle, 
    440 Mich at 99
    , the Supreme Court adopted a duty-based open and obvious
    danger defense. In reaching this result, the Court appropriated the analysis of the Illinois
    Supreme Court in Ward v K Mart Corp, 136 Ill 2d 132; 
    554 NE2d 223
     (1990), rejecting that “the
    adoption of comparative negligence . . . has affected the basic duty a landowner or occupier owes
    to entrant upon his land” with respect to open and obvious conditions.1 In the 25 years that have
    elapsed since Riddle was decided, three important developments have dramatically altered the
    legal landscape. A re-examination of Riddle is long overdue.
    First, in countless cases involving whether a particular condition is open and obvious,
    Michigan courts have applied the test applicable in all negligence case—the reasonable person
    standard. In Novotney v Burger King (On Remand), 
    198 Mich App 470
    , 475; 499 NW2d 379
    (1993), we engrafted that standard on a court’s determination of whether a condition is open and
    obvious: “Would an average user with ordinary intelligence have been able to discover the
    danger and the risk presented upon casual inspection?” The Novotney formulation is ubiquitous
    in our premises liability caselaw.2 Whether called the “average person with ordinary
    intelligence” test as in Novotney, or “a reasonably prudent person” standard as the majority does
    here, the pertinent inquiry in premises liability cases echoes that in all negligence cases: did the
    plaintiff behave reasonably under the circumstances?
    The second post-Riddle development concerns comparative fault. When the Supreme
    Court decided Riddle, comparative fault was solely a creature of the common law that had been
    embraced in Placek. But that changed in 1995 when our Legislature adopted MCL 600.2958,
    explicitly enshrining the doctrine of comparative fault in all tort actions:
    Subject to [MCL 600.2959], in an action based on tort or another legal theory
    seeking damages for personal injury, property damage, or wrongful death, a
    plaintiff’s contributory fault does not bar that plaintiff’s recovery of damages.
    1
    The Riddle Court engaged in no discussion whatsoever of the body of Michigan caselaw
    holding that the obviousness of a dangerous condition, or a plaintiff’s familiarity with that
    condition, was relevant to a plaintiff’s fault rather than a defendant’s duty. See Town v
    Armstrong, 
    75 Mich 580
    ; 
    42 NW 983
     (1889); Rice v Goodspeed Real Estate Co, 
    254 Mich 49
    ,
    55; 
    235 NW 814
     (1931) (emphasis added) (“One who knows or in the exercise of ordinary care
    should have known the existence of danger from which injury might reasonably be anticipated
    and who by his voluntary acts or omissions exposes himself to such danger is guilty of
    negligence, if under the circumstances an ordinarily prudent person would not have incurred the
    risk of injury which such conduct involved.”); and Cadagan v Great Atlantic & Pacific Tea Co,
    
    298 Mich 207
    , 212; 
    298 NW 504
     (1941) (where the plaintiff knew of the dangerous condition on
    the sidewalk but used it anyway, rendering her “guilty of contributory negligence”).
    2
    The Supreme Court denied leave to appeal in Novotney v Burger King Corp, 
    445 Mich 862
    ;
    519 NW2d 158 (1994), and has never raised any challenge to the application of the reasonable
    person standard in cases involving allegedly open and obvious dangers.
    -2-
    The Legislature carved out no exception for premises liability claims despite its awareness of
    Riddle.
    The clear and express language of MCL 600.2958 prohibits a court from barring a
    plaintiff’s recovery based on her comparative fault. But as the majority’s opinion in this case
    vividly demonstrates, applying the open and obvious danger doctrine violates this prohibition.
    Because her conduct fell below that of a “reasonably prudent person,” Dorsey may not recover—
    despite that defendant was concurrently negligent, and arguably more negligent than Dorsey.
    Even if a plaintiff cautiously approaches a negligently created or permitted danger and attempts
    to avoid it, she may not recover. This result simply cannot be reconciled with MCL 600.2958.
    “It is anomalous to find that a defendant has a duty to provide reasonably safe premises and at
    the same time deny a plaintiff recovery from a breach of that same duty.” Tharp v Bunge Corp,
    641 So 2d 20, 25 (Miss, 1994). I would hold that the open and obvious danger defense is
    incompatible with our Legislature’s pronouncement that comparative negligence controls.
    Finally, the “no duty” rule inherent with Michigan’s open and obvious jurisprudence is a
    relic from foregone era. See James, Tort Liability of Occupiers of Land: Duties Owed to
    Licensees and Invitees, 63 Yale L J 605, 628 (1954); Keeton, Personal Injuries Resulting From
    Open and Obvious Conditions, 100 U Pa L Rev 629, 642 (1952). A number of courts have
    recognized that comparative negligence principles apply in premises liability disputes as well as
    all other tort cases. See Carter v Bullitt Host, LLC, 
    471 SW3d 288
     (Ky, 2015); Steigman v
    Outrigger Enterprises, Inc, 126 Haw 133; 267 P3d 1238 (2011); Foster v Costco Wholesale
    Corp, 128 Nev 773, 781-782; 291 P3d 150 (2012); Tharp v Bunge Corp, 641 So 2d 20 (Miss,
    1994). But until our Supreme Court says otherwise, negligent landowners are graced with
    judicially created immunity and plaintiffs such as Dorsey must be denied recovery, regardless of
    the Legislature’s clearly expressed contrary view.
    /s/ Elizabeth L. Gleicher
    -3-