I have never considered myself a deep thinker on philosophical matters, legal or otherwise. In fact, I withdrew from a Philosophy of Law class in my undergrad days, telling the professor that I frankly did not see the course as particularly relevant to what I perceived (in my ignorance) to be the modern practice of law. The instructor responded that, in such circumstances, I might want to rethink my plans to go to law school. Over a longish career, and until recently, I have always thought I had the last laugh on him.
In addition, I have never considered myself as a fire-breathing zealot on behalf of a particular point of view in my practice. I have worked in the area of personal injury for a good part of my career, doing plaintiff work. Over the past 10 years, I have been a member of the Michigan Trial Lawyers Association, off an on, mostly on, though my membership has lapsed on occasion. But, I could just as easily have become a career insurance defense lawyer, if a few interviews years ago had gone differently.
I’ve never believed that all plaintiffs must always win or that all defendants must always lose, except when I represent the plaintiff, of course. In the last few years, however I do find that I have come to root for all personal injury plaintiffs in all cases all the time, in the same way that I root for the 16 seed to beat the 1 seed every year in the NCAA tournament. Most people like to root for the underdog to beat the favorite, the little college with no scholarships to beat the big time program with the big TV and big shoe contract.
Even with my limited natural gifts and skills, I feel lucky, nowadays, as a personal injury lawyer, to argue for the plaintiff than for the defendant. At least I can argue that my clients usually act the way real human beings act in the real world. The defense bar has, in recent years, been provided with a bag-full of decisions from the appeals courts of this state, which set a standard of conduct for Michigan citizens which, quite frankly, have little relationship to common behavior, common experience or common sense. No disrespect intended.
Over the years, I have had occasion to tell clients that a most principles of our tort law are not set out in the statute books. This, I tell them, is because in our common law system, the standard of reasonable conduct in any particular situation, is something that a reasonable person should reasonably be able to do, under reasonably foreseeable circumstances in the real world. And, I suppose, what is reasonable under most circumstances, should be something the average person should be able to figure out for themselves based on common sense, without reference to a statute book. This analysis is, no doubt, a product of my life-long difficulty in grasping the finer points of legal philosophy, but it makes some sense to me. Common law, based on common experience, making common sense.
A naďve attitude to bring to the analysis of recent premises liability decisions, perhaps, but there it is. It is why I look at cases like Sharp with dismay, if no longer with surprise.
The Sharp decision is quite short and is unpublished. The judges did not believe they were breaking new ground here. Among the one hundred-plus daily posts to the MTLA Listserv, since the day the decision was released, it has not merited a single reference. All the information I have about this case is from the decision itself. It was not a case handled by my firm.
Anyway, it appears that shortly after noon on January 7, 2003, Mr. Sharp along with his fiancée (who was carrying her 3 year old son) entered an Art Van store somewhere in Bay County. He had been to that store on approximately one hundred other occasions. (The Sharp family must have been very hard on the family furniture.) It was a wintry day, the decision states, and the ground outside was covered in slush. To quote: “As he approached and entered the store, Sharp was not looking for water that would have been tracked into the store that morning by others. Because he was not looking down, he did not see any water until after he slipped and fell just inside the second of two sets of automatic double doors….Sharp’s fiancée, now his wife, walked beside him carrying her three-year old son, and had no trouble with traction as she entered the store.”
In the course of legal events, Art Van moved for summary disposition, arguing: “…that the wet condition of the floor was open and obvious, that it did not pose an unreasonable danger, and that Art Van did not have notice of the condition.”.
As I have already given away the ending, I’d like to comment here on Art Van’s approach to the defense of this case. It filed a motion alleging that there was no genuine issue of any material fact in this case and that those facts (looked at in the light most favorable to the plaintiff) pointed to two inescapable conclusions: The defect was obvious to Mr. Sharp, but Art Van had no reason to know of its existence. How can both conclusions be right? This is a common defense technique at present. I don’t blame them, particularly, as the courts have entertained such arguments without batting an eye. As recently as last motion day, I have argued a motion taking precisely the same approach. Again no blame to the attorney involved. The reasoning just seems to fly in the face of common sense.
I do have a problem with the logic employed by the courts in even considering this approach. Summary disposition motions are considered based on the assertion that there is no genuine issue as to any material fact, right? Those facts are to be looked at in the light most favorable to the non-moving party, right? Well, I am now going to start employing the following approach to such motions. For purposes of the open and obvious portion of the motion, I am going to ask the court to accept the defendant’s assertion that they had no notice of the condition. For purposes of the notice motion, I am going to ask the court to accept the defendant’s assertion that the condition was obvious to the plaintiff. Shouldn’t that be sufficient to create an issue of fact on both issues? We’ll see.
In a larger sense, how does it make sense that a customer, after taking two steps into a store, is held to have more knowledge of the condition of the place than those who run the business and have been there since it opened up?
The Sharp decision does state that invitors, such as Art Van, owe a duty to customers to exercise reasonable care to protect them from an unreasonable risk of harm caused by a dangerous condition on the land, including inspecting the premises and making necessary repairs or warning of discovered hazards. But, the court says, this does not extend to dangers so obvious that the invitee can be expected to discover them himself. What is obvious, according to recent decisions, are conditions that an average user with ordinary intelligence would have discovered on casual inspection.
It does seem that the respective duties of the parties are quite different when looked at on paper. The owner has a duty to inspect and maintain its premises for the protection of its customers. Not an unreasonable standard, as the store is asking people to come in and spend its money with the store. Customers do not have such duty, they merely should be reasonably careful under the circumstances. Reasonably straightforward. Recent cases have changed the relationship and duties of the parties. Invitees have been changed into all-knowing, all-powerful beings.
In holding that the wet condition was “open and obvious” to Mr. Sharp, the court held: “Water in a store entryway on a slushy January day in Michigan is a hazard analogous to that presented by ice and snow.” The court said that generally the hazards presented by ice and snow are open and obvious, and “do not impose a duty on the property owner to warn of or remove the hazard. Reasonable minds could not disagree that a slippery surface in a store entryway should be expected under these conditions.” A sentence or two later the court stated: “…an average person of ordinary intelligence would be on notice of the possibility of water accumulation, or possibly the presence of water on his own shoes that could pose a risk of slipping”.
Now wait a minute here. Isn’t an open obvious condition a physical condition obvious to all? Or does this decision hold that a Michigan resident should expect ice, snow and water everywhere? The court didn’t hold that this particular wet condition was of such a nature that Mr. Sharp should have known about this specific condition and, presumably avoided it. Mr. Sharp, as a Michigan resident, is on notice, generally, that during the winter, that it is possible that there is snow, ice and water everywhere. And the mere possibility is enough to impute knowledge of all such conditions to the customer. It also, apparently, absolves the owner of any duty to inspect or protect. On the other hand, it doesn’t seem to prevent the owner from arguing that they had no reason to know of the condition. Gee, doesn’t Art Van run businesses in Michigan during the wintertime? I have yet to see a decision where a reviewing court holds this to be relevant.
Decisions have held that an open and obvious condition must be viewed from an objective viewpoint. The average user is not necessarily the plaintiff in question. This helped a court in Michigan dismiss the case of a blind person who slipped on water on the floor of a restroom. The “average”, average user was not blind, so the court had no problem in holding that the water on the floor was open and obvious, negating any duty from the restaurant in question to that plaintiff.
While holding that the standard is objective, the courts have also held that, as Michigan residents, we are assumed to have knowledge of the ever-present hazards of ice and snow in the winter. Does this mean that a visitor from Barbados will not be assumed to know of the possibility of snow, ice and water everywhere? Or does it mean that an average user of ordinary intelligence in Michigan is defined as a Michigan resident, with 20/20 vision? If so, knowledge of the hazards of ice and snow in a Michigan winter will be imputed to our tropical visitors.
Given the current trend of cases, I assume that soon, all cases alleging defective lighting will be dismissed under the open and obvious doctrine. As most of us are life-long residents of the planet Earth, we should know that, on average, it is dark fully half the time in an average year. Therefore the danger of dark conditions and the conditions darkness will hide are imputed to all earth residents and business owners need take no steps to warn of or remove the hazard.
Because the reviewing courts of this state have held that the interior and exterior landscape of the state is fraught with hazard, what is a reasonably prudent person to do? If every footfall brings with it the possibility of danger, how does one counsel one’s client to reasonably behave during Michigan winters, on the paved areas of Michigan’s terrain, during Michigan darkness or in and about Michigan stores and restaurants? Look down, and nowhere but down, I suppose. But how do I see my destination, see possible hazards not at ground level, look for traffic, find items in a grocery store, talk with my companions, and most importantly, talk on my cell phone? Well, I answer, you can easily talk on your cell phone while looking down. As to the other aspects of normal, human activity mentioned, I say, I can’t provide you with the first clue. I daresay, that if you were to watch an Appeals or Supreme Court Judge off the bench, you would probably not find him or her looking directly down toward the location of his or her next anticipated footfall. Yet such is the standard of behavior expected of the rest of the citizens of this state as well as visitors from other parts of the planet. Walking on a sidewalk without stepping on a crack was once a childhood game. It is now the standard of conduct for all citizens. It is good that the courts encourage us to keep in touch with our inner child.
There used to be cases, and a jury instruction, regarding the duty of an owner of a self-serve store. Customers had a right to expect reasonably safe aisles as they looked to choose among the items the owner had displayed for purchase. No longer. You, as a customer, are expected to look down at all times, in anticipation of the possibility of spills, which, after all are to be expected in a store. On the other hand, the store will deny knowing of such a condition during the course of litigation. Well, until they find a way to display and stock double-stuff Oreos so that I can both locate them and retrieve them while looking down, I will have to risk the danger involved.
Perhaps my clients should be advised to stay indoors during the months from November until early April each year. Perhaps we should suggest that all businesses close during these months as well, as there can be no expectation that anyone of reasonable intelligence will venture out during these months.
To return to the Sharp case, in holding that there were no special aspects to the condition that would prevent dismissal under the open and obvious doctrine, the court went on to say: “The types of injuries sustained in a slip and fall are not generally classified as unreasonably dangerous.” I used to think that there were dangerous conditions and dangerous situations, but not dangerous injuries, unreasonable or otherwise. If what is meant is that there are generally no serious injuries from slip and falls, I think common experience and data indicate otherwise. While not, admittedly, triple-checking sources, there are studies which show that there are more than 300,000 disabling slip and fall injuries in North America each year, and 20,000 fatalities. That seems relatively serious to me. By the way, what does “unreasonably dangerous” mean, anyway? When is a condition “reasonably” dangerous? Is a reasonably careful person expected not to encounter unreasonably dangerous conditions, but expected to encounter reasonable dangers? I have difficulty explaining that one to my clients, especially the reasonably intelligent ones.
This brings me to one of my personal favorites aspects of the open and obvious discussion. Business owners now claim that the invitee did not have to come to their business or could have come back another day. Business owners argue that the reasonably prudent person would not patronize their business. “You should not have come to my store (though open for business)”, they say. Makes good economic sense to me. My client was not obligated to leave her apartment in order to buy milk and bread after waiting three days for the building’s lot to be plowed, it has been argued. Her fault for not laying in six months of hardtack and distilled water in early October, I guess.
This argument has even served as a basis to dismiss the case of a worker who slipped and fell on ice while making a regularly scheduled pick-up and delivery to a business on her route. In fact, that dismissal was just upheld by the Court of Appeals on August 17, 2006. Please see Stanton v Fitness Management, Court of Appeals No. 267623. The Court said the plaintiff could have chosen not to confront the danger by not entering the building, not doing her job and not serving her employer’s customer. To quote: “Would she have been obligated to enter a burning building in order to make the pickup?” And if Johnny Jones jumped off the Empire State Building, would you have to jump off the Empire State Building? While we all must know the realities of winters in Michigan, we must apparently remain blind to the realities of life in a capitalist economic system. And, I guess, act accordingly. Whatever happened to the Protestant work ethic? Or the doctrine of comparative negligence, come to that.
If a person does venture out in the winter, one is absolute guarantor of one’s own safety. Because, apparently, the reviewing courts of this state have not only imputed citizens with perfect knowledge, but also assume that all citizens have the talents of an Olympic skater or mountain goat, when it comes to dealing with ice and snow. Wait, I withdraw the Olympic skater reference. I have seen them fall. Citizens are to meet these conditions at all times, without injury to themselves.
I firmly believe that our courts are out of touch with normal human experience in this area of the law. I really don’t think that our courts really expect that citizens will hunker down and not live their lives when it gets dark, rains, or snows. I am sure that courts do not routinely grant adjournments to litigants who call and say they can’t come to court because their apartment parking lot hasn’t been cleared. Or do the Supreme Court’s docket control guidelines constitute a “special aspect”?
One can be grateful, at least, that this analysis has not (yet) made its way to auto negligence cases. The hazards of driving are open and obvious. You didn’t have to drive to your mother’s house that day, or at that time, or by that route. You could have walked there. You should have anticipated the possibility of that driver could have cut you off. You saw him before the accident, didn’t you? As a citizen of the State of Michigan, the auto capital of the world, you are aware of the possibility of serious injury in a car based on the negligence of someone else, even if you are careful?
How have we come to this? How has a standard of conduct, so at odds with normally expected human behavior, become the law of this state. Theories abound. Quite possibly, in an effort to overturn an aberrational result (usually exclusively used to describe a plaintiff verdict), the result achieved was considered more important than the reasoning used to get there. Unfortunately, as often happens, faulty reasoning becomes the basis of future decisions, and in the rush to get to one result, the baby gets thrown out with the bathwater, and reason and common sense get thrown out as well. Sound analysis gives way to pigeon-holing cases with a label, “open and obvious”, in this particular instance. In the end, the citizens of this state, and visitors from other parts of the planet are not well served, when the courts hold that invitors have a duty to their invitees, but there are virtually no instances when that duty, even if admittedly breached, has any consequences.
Many attorneys are declining premises liability cases at present, telling clients that the courts of this state leave them up a certain body of water, without a certain implement. However, I believe these claims should continue to be filed, and that one day common sense and recognition of how real humans act in real situations, will again be relevant in this area of the law. This may not happen within lives in being plus twenty-one years, to use an old Rule Against Perpetuities joke, but it will happen, and there will need to be a case or line of cases to make it happen. Until that time, discussion of the state of Michigan premises liability law might be better suited for “open-mike night” at a local comedy club.
I am going to stop writing now, as the passage of time only serves to provide more material, and publications to have editorial guidelines governing the length of submissions.
Do I expect to provoke a response with this article? Absolutely.
Phone rings.
“Mike Butler speaking.”
“Mr. Butler, I am calling on behalf of the MTLA. Someone here saw your article. We have checked our records, and we note that your dues are…”