Two recent unpublished opinions from the Michigan Court of Appeals provide further clarification for premises liability cases as to what risks might be considered “open and obvious” and when those risks might contain a special aspect.
In Shammout v. Kalamazoo Jaycee, et al., the court held that a question of fact existed as to whether the open and obvious defense should be available to a premises possessor when a reasonable person may not have appreciated the risk posed by a fryer operated at an outdoor festival.
In that case, the plaintiffs were injured at an outdoor event when inclement weather caused severe winds to knock over a table and the hot oil fryer sitting atop it. The oil burned both plaintiffs, who were seated inside of a food tent seven to eight feet away from the fryer. They subsequently brought ordinary negligence and premises liability claims against the sponsor and organizer of the festival, the party responsible for renting and setting up the food tents, and the food vendor. The trial court found that the defendants did not breach any duty owed to the plaintiffs, and granted the defendants’ motion for summary disposition to dismiss the case.
On appeal, the Court of Appeals agreed that the festival sponsor and suppliers owed no obligation to the plaintiffs, but held that the food vendor was a premises possessor with a duty to warn the plaintiffs of the risk posed by the fryer. The court found that the food vendor breached this duty of care and that the risk posed by the hot oil fryer would not necessarily be considered open and obvious.
The court determined that there was a question of fact as to whether a reasonable person would have realized and appreciated the danger of oil spilling and injuring a person seated seven to eight feet away from the fryer. In considering whether the risk was open and obvious, the court relied upon certain factors including the average person’s inability to appreciate how much oil was in the fryer at the time, whether the fryer was secured, and the stability of the table the fryer was placed on. The concurrence and the dissent indicated that they would have gone even further than the majority, and found the festival organizer and tent supplier both owed a duty of care to the plaintiffs as well.
In the second case – Lymon v. Freeland et al. – the Michigan Court of Appeals held that an icy driveway, although considered open and obvious, contained a special aspect because it presented a risk of high severity of harm that constituted an unreasonably dangerous condition.
The plaintiff in that matter was a health care aide who provided in-home care to a residence located on a hill. On the day of the alleged injury, snow and ice had accumulated on the driveway and yard, and the plaintiff was forced to park on the street and walk up the driveway rather than navigate the incline of the yard. She walked nearly half way up the drive when she slipped and fell, suffering a severely fractured tibia and fibula that required surgery and months of rehabilitation.
The plaintiff argued that her premises liability claim was not barred by the open and obvious doctrine because there were special aspects related to the danger. Specifically, she asserted that the driveway presented an unreasonable risk of severe injury or death because the driveway was very steep and covered in ice. In particular, she argued that her employment compelled her to go into the home, yet there was no safe path. She maintained that both paths to the house were perilous, and therefore the danger was unavoidable. The trial court agreed with her and denied the defendants’ motion for summary disposition based on the conclusion that the icy driveway presented an open and obvious hazard that contained special aspects.
On appeal, the Court of Appeals affirmed, relying on the fact that all routes to the home were covered in ice and snow. The plaintiff was faced with two open and obvious hazards that posed a risk to her safety. While other individuals were able to successfully navigate the slippery yard to access the home, reasonable minds could differ as to whether traversing the yard provided a viable means by which she could have effectively avoided the slippery conditions. The court found that there was a genuine issue of material fact as to whether the open and obvious danger involved special aspects, and that the defendants retained a duty to “exercise reasonable care to diminish the hazards of ice and snow accumulation” on the driveway and exercise “reasonable measures… within a reasonable time after an accumulation of ice and snow to diminish the hazard of injury to the invitee.”
These unpublished opinions represent the Michigan Court of Appeals’ continued effort to delineate the bounds of the open and obvious defense. We will continue to monitor any developments in these and related cases. If you have any questions, please feel free to contact any one of the attorneys in our Insurance Defense group.