The Plaintiff, who arrived for a dinner party at the defendants’ home, went to put her purse in the mudroom near the front door and fell as a result of an 8-inch drop-off from the hallway into the dark mud room. The Plaintiff’s complaint alleged theories of premises liability, ordinary negligence and nuisance. The Defendants argued that the drop-off was open and obvious, and, therefore, they had no duty to warn the plaintiff (as an social guest/licensee) of its existence. The Plaintiff asserted that, given the absence of lighting, the drop-off could not be seen by an average person upon casual inspection and presented testimony of other guests and photographs in support. The trial court agreed with defendants and granted their motion, the Court of Appeals reversed, and the Supreme Court heard “mini” oral argument on defendant’s Application for Leave to Appeal.
Following this argument, the Michigan Supreme Court in Blackwell v Franchi, ___ Mich ___; Docket No. 155413 (July 25, 2018), in lieu of granting leave to appeal, remanded the case for the Court of Appeals’ consideration of whether defendants owed plaintiff (who was a social guest/licensee) “a duty to warn about the [8-inch step down from a hallway into a dark “mud room” at defendant’s house] because the plaintiff did not ‘know or have reason to know of the condition and the risk involved,’ and it involved ‘an unreasonable risk of harm,’ and defendants should not have expected that a licensee like the plaintiff would ‘discover or realize the danger . . . .’”
In a split published opinion, the Court of Appeals majority had reversed summary disposition and held that the “open and obvious” defense does not require the plaintiff to alter the premises’ condition and improve the visibility of the alleged hazard by finding the light switch and turning on the lights. It found that the conflicting testimony on whether the hazard was “open and obvious” created a question of material fact that had to be resolved by the jury. The Supreme Court remand order left this basis for reversing the trial court’s grant of summary disposition intact and thus a lack of adequate lighting can be a basis to defeat the “open and obvious” defense to a premises liability claim.
The Supreme Court’s remand order further provides: “[B]eyond this duty to warn of certain conditions,  defendants had no affirmative duty to inspect the premises or to make the premises safe for licensees. If the particular condition here did not give rise to a duty to warn,” they cannot be held liable. Further, a “question of fact as to the openness and obviousness of the step is irrelevant if there is no prima facie claim. There is no need to ‘attack [ ] the duty element’ if [ ] defendants owed no duty in the first place.”
Here is a link to the text of the Supreme Court’s remand order: Read MoreShare this Article