One Court of Justice

In Duffy v. Irons Area Tourist Association, the Court of Appeals examined the scope of the recreational land use act, holding that it protects only owners, tenants, and lessees.  There, the defendant-tourist association contracted with the State of Michigan to maintain the Little Manistee Trail.  While riding an all-terrain vehicle on that trail, the plaintiff crashed her vehicle and sustained serious injuries.  She sued the tourist association for negligently failing to maintain the trail.  The trial court held that the recreational land use act protected the tourist association from negligence claims.  The Court of Appeals reversed.  The recreational land use act limited its scope to “owner[s], tenant[s], and lessee[s].”  MCL 324.73301.  Because the tourist association was none of these, the act did not protect it from liability.

In Hoffner v Lanctoe, the Michigan Supreme Court held that an “invitee”–plaintiff, who knowingly crossed ice to enter her exercise facility, was not entitled to tort recoveries as the danger was “open and obvious” but not of a “special aspect” to make the “risk unreasonably dangerous.”  After mini-oral argument on the application for leave, the court reversed-in-part and affirmed-in-part the Court of Appeals, which, in agreeing with the Circuit Court, found a question of fact existed on whether the ice was “effectively unavoidable.”  For that reason, these courts denied the property owner’s summary judgment motion.  See previous One Court of Justice coverage.  Over three dissenters, the Supreme Court reversed and remanded the case to the Circuit Court for entry of summary disposition for the defendants.

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In Buhalis v. Trinity Continuing Care Services, the plaintiff slipped and fell on ice after parking her bike on the defendant’s outdoor patio, which was not shoveled. Adjacent to the patio was a walkway that was clear of snow and ice and lead to the main entrance of the nursing home. The Court held that a premise possessor does not have the duty to warn an invitee, such as the plaintiff, if the danger is known to the invitee or so obvious it would be reasonable for the invitee to discover it. The Court then determined that the plaintiff should have been aware that there would be ice because she knew that it had rained and snowed the previous night and she had extensive knowledge of Michigan winters having lived through eighty-five of them. Additionally, the Court found that there was no question as to whether the defendant had taken reasonable care because the defendant had removed the snow on the main walkway and on all sidewalks around the building, the only reason the plaintiff encountered slippery conditions was because she chose to park her bike on the seasonal patio. Accordingly, the Court held that where “a premise possessor provides a clear means of ingress and egress and the invitee strays off the normal pathway onto an area that is obviously not reserved for that purpose, the landowner has not breached a duty of ‘reasonable care.”

Judge Kelley authored a dissent, and would hold that there was a genuine issue of fact with respect to whether the plaintiff was invited onto the patio, and whether the ice was open and obvious.

The Court of Appeals found that because several people, including plaintiff, successfully traversed a raised stage (without any guard at the back of the stage) the open and obvious risk of falling was not “effectively unavoidable.”  Thus, in a published opinion of Chesser v. Raddisson Plaza Hotel,  authored by Judge  Krause, the Court reversed the trial court’s denial of Radisson’s summary disposition motion seeking to defeat plaintiff’s personal injury claim based on falling off the back of a stage after giving a speech at the hotel.  In awarding summary disposition to the defendant the Court of Appeals concluded that, under Michigan law, the hotel only owed a duty to protect invitees from the open and obvious danger of falling off a raised stage, if that danger was “effectively unavoidable.”  The Court rejected the argument that the hotel owed no duty because Plaintiff could have refused to ascend the stage, and rejected the contention that because it was possible to cross the stage without falling, the risk effectively avoidable.  However, the successful crossings of several people, including plaintiff, demonstrated to the Court that the ”statistical fluke was [plaintiff's] fall, not the other speaker’s safety.”  Thus, the risk of falling was not effectively unavoidable.

In Bailey v. Schaff, No. 295801, the Court of Appeals held that a landlord has a duty to take reasonable measures in response to an ongoing crime that takes place on the premises, which means “expediting the involvement of, or reasonably attempting to notify, the police.” Read more »

In Bullington v. Corbell, No. 297665, the Court of Appeals vacated the default judgment against various defendants and remanded for further proceedings because service of process was insufficient to inform defendants that they had been sued.  Citing a series of procedural defects in plaintiff’s service methods at the wrong address, lack of knowledge by defendants that they had been sued, a failure by plaintiff to show he could not ascertain the correct address, and the existence of meritorious defenses, the Court ruled that the trial court abused its discretion in refusing to set aside the default judgment under MCR 2.612.

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In Sharp v. City of Benton Harbor, No. 292389, the Court of Appeals held that municipal governments are not immune from tort claims for failure to properly maintain curbs in reasonable repair.  Plaintiff Jeanette Sharp sued the City of Benton Harbor for injuries sustained when she stepped onto a curb, it crumbled, and she fell to the ground.  Though a grass verge separated the curb from the sidewalk, the court held that this structure fell within the category of structures that Congress intended to include within the highway exception to the governmental immunity act.   Read more »

In Estate of Domonique Daquan Wheeler v Central Michigan Inns, Inc, No 296511, the Court of Appeals held that claim for ordinary negligence, rather than premises liability, does not place upon a defendant a duty to supervise a child if the child’s parent was present and the defendant does not voluntarily assume responsibility for supervising the child. Read more »

On December 14, 2010, the Court of Appeals published its per curiam opinion in Watts v Michigan Multi-King, No. 293185.  In Watts, the plaintiff sued for negligence after she fell on a wet, newly-mopped floor in the defendant’s restaurant.  The restaurant’s incident report stated that “wet floor” signs were visible, but the plaintiff testified that there were no “wet floor” signs, that the floor did not look wet, and that she had no way of knowing that the floor was wet until after she fell.  The Court of Appeals held that a genuine issue of material fact existed as to whether the floor was an “open and obvious” hazard, so it reversed the trial court’s order granting summary judgment to the restaurant.  Read more »

Plaintiff slipped and fell on an icy sidewalk in front of the only customer entrance to an exercise facility.  The trial court denied defendants’ motion for summary disposition because it found that there were genuine issues of material fact.  In Hoffner v Lanctoe, No. 292275, a per curiam opinion published on November 2, 2010, the Court of Appeals affirmed in part, reversed in part, and remanded.  The Court of Appeals determined that the leaseholders of an area inside the Lanctoes’ building could not be liable because they did not have possession and control of the sidewalk outside of the facility where plaintiff fell.  The Court of Appeals made this determination based on the lease between the Lanctoes and the exercise facility, along with their actions and intent.  The Court of Appeals also determined that whether or not a contract between plaintiff and the exercise facility, containing a release of liability for the exercise facility, etc. “and all others”, could apply to the Lanctoes, required factual development and that summary disposition was inappropriate.  Finally, the Court of Appeals found that the trial court appropriately denied summary disposition regarding defendants’ argument that plaintiff’s claim was barred by the open and obvious doctrine where there was only one customer entrance, and where although plaintiff, an invitee, noticed that the sidewalk was covered by “glare ice,” she testified that she thought she could safely cross it.