Michigan Supreme Court to decide case of woman killed between store and parking lot, examining issue: Should signs and traffic controls be required at crosswalks in big-box store parking lots?
Should a big-box store like Menard’s be required to install signage and traffic lights at the pedestrian crosswalks leading from their stores to their parking lots?
We will likely know soon, because the Michigan Supreme Court has agreed to weigh in on the issue.
In an April 29, 2016, order, the justices unanimously agreed to hear oral arguments in the case of Fowler and Rawluszki v. Menard’s, Inc., where Menard’s is being sued by the estate of a woman who suffered a fatal traumatic brain injury when she was struck by a car while walking in the crosswalk from a Bay County, Michigan, Menard’s store to the Menard’s parking lot.
Although both the trial court and the Michigan Court of Appeals in Fowler and Rawluszki have acknowledged that the danger of a pedestrian being hit by a car in a big-box store’s parking lot is open and obvious, thereby relieving the store of liability for any resulting injuries, this case appears to be posing a slightly different – albeit very significant – legal question:
If a big-box store chooses to install a pedestrian crosswalk – which it has no legal duty to do – does the store create for itself a duty to also install signage and traffic lights to protect its pedestrian-shoppers from being struck by a car when using the crosswalk?
Indeed, the Court of Appeals ruled that the “trial court reached the right result” when the trial court explained its “reasoning” for refusing to dismiss the lawsuit as Menard’s requested:
“[W]hile parking lot dangers were open and obvious there was a question of fact as to whether the crosswalk as designed created a special aspect that gave rise to a duty on the part of [Menard’s] as the premises owner. … [Additionally,] while [Menard’s] might not have been required to do anything to its parking lot, once it did do something, it had to be done in a reasonable and non-negligent manner.”
The case raises fascinating issues – and new theories of legal liability – for Michigan injury attorneys who represent people who are hit by cars as pedestrians. And make no mistake, these cases are very common. Up until now with Fowler and Rawluszki, many injury lawyers have only focused on bringing a lawsuit against the owner/operator of the motor vehicle that strikes the pedestrian, assuming there is enough of a basis to get past the comparative negligence claims that we as lawyers always will see in a pedestrian-car accident case. But lawyers have steered clear of these cases against owners of premises, believing any negligence claims barred by the open and obvious doctrine in Michigan, which has hamstrung premises liability cases for years.
This is an important case.
I believe most people would agree, whether an attorney or lay person, that it only makes sense if the installation of pedestrian crosswalks puts shoppers at greater risk of getting struck by a car in a store parking lot, then the store that installed the crosswalk should also be potentially liable for injuries that result.
Fowler and Rawluszki v. Menard’s
Virginia Jane Rawluszki was walking in the pedestrian crosswalk from a Bay County Menard’s story to the Menard’s store’s parking lot when she was struck by the motor vehicle being driven by Dale Paul VanWert. As a result of the pedestrian-car collision, Ms. Rawluszki “suffered a brain injury that eventually led to her death.”
In its lawsuit against Menard’s, Ms. Rawluszki’s estate complained:
“[T]he crosswalk created a feigned zone of safety and [Menard’s] had a duty to take extra measures to install signage or traffic signals to warn oncoming vehicles of the pedestrian crossing.”
To support its claim, the attorney for Ms. Rawluszki’s estate presented the report of an accident reconstruction expert who concluded:
“I … am of the opinion that the design of the crosswalks at this Menards are substandard for safety. . . . There are no warning signs, no pedestrian crosswalk warning signs or any type of signage. The combination of these design problems creates an unreasonable risk to pedestrians.”
The trial court rejected Menard’s argument that the pedestrian fatality lawsuit should be dismissed because “the crosswalk, as part of its parking lot, was an open and obvious condition such that a pedestrian could anticipate the danger of vehicles driving through.” Instead, the trial court ruled:
- “[W]hile parking lot dangers were open and obvious there was a question of fact as to whether the crosswalk as designed created a special aspect that gave rise to a duty on the part of [Menard’s] as the premises owner.”
- “[W]hile defendant might not have been required to do anything to its parking lot, once it did do something, it had to be done in a reasonable and non-negligent manner.”
The Court of Appeals concluded “that the trial court reached the right result,” noting:
- “[T]here is a duty on the part of the landowner to install crosswalks in a reasonable and prudent manner,” which is consistent with the rule set forth by the Michigan Supreme Court in its 2004 ruling in Fultz v. Union-Commerce Associates that “‘[i]f one voluntarily undertakes to perform an act, having no prior obligation to do so, a duty may arise to perform the act in a non-negligent manner.’”
- A material question of fact remains as to “whether this crosswalk was installed in a manner that increased the risk to the pedestrian …”
- A material question of fact remains as to “whether the crosswalk installation was a proximate cause of decedent’s injury.”
Elaborating on its rationale for concluding that Menard’s owed a duty to Ms. Rawluszki, the appellate judges noted:
“The court found that this continuous, intentionally created feature of the property [i.e., the pedestrian crosswalk that connected the Menard’s store to the Menard’s parking lot] created a safety zone, was a special aspect, and warranted the imposition of a duty of care. Defendant has not submitted anything to question whether it knew or should have known that the crosswalk it created would give the pedestrian a sense of safety or distraction. [The accident reconstruction expert’s] report, offered by plaintiff, supports such a finding, however.”
In response to the application for leave to appeal filed by Menard’s, the Michigan Supreme Court agreed to hear oral arguments addressing the following issues:
- “[W]hether the crosswalk installed by [Menard’s] had a special aspect that could create liability for even an open and obvious hazard …”
- “[W]hether such a special aspect can exist if the condition is not unreasonably dangerous.”
Michigan’s premises liability laws, open and obvious law, and “special aspects” of parking lot accidents
When I became an injury attorney over 20 years ago, about one-third of my legal practice was premises liability cases. Of course, that was when the majority of these cases were still viable under Michigan’s premises liability law as it existed at that time.
Everything changed with the adoption of “open and obvious,” which essentially wiped out 60 years of human factors science and created an absolute bar to premises injury lawsuits. These cases could not even proceed under a comparative negligence standard where the negligence of the injured party would be weighed against the negligence of the landowner.
Instead, if a condition was arguably found to be open and obvious, then it created an absolute bar to the viability of a claim. Under this Michigan law, a landowner has no duty to protect an invitee from “a dangerous condition on the land” that is – or should be – “open and obvious” to the invitee.
However, there was one narrow exception that remains, and it looks like the plaintiff’s attorney in Fowler and Rawluszki seized on this. As the court explained, if the dangerous condition is “unreasonably dangerous,” i.e., “‘the risk of harm remains unreasonable, despite its obviousness or despite knowledge of it by the invitee,’” then the dangerous condition constitutes a “special aspect” and the landowner “has a duty to undertake reasonable precautions to protect invitees from the unreasonable risks created.”
As I wrote above, people are hit by cars in store parking lots all the time. Many parking lots are designed terribly, and this case is an opportunity to better protect the public.