Bill 5744 would change ‘open and obvious’ defense to better protect Michigan residents
How bad is Michigan’s “open and obvious” premises liability law? So bad that in one fell swoop in 2002, it wiped out over 65 years of human factors science. Our “open and obvious” law essentially wipes out slip and fall cases. The Michigan Supreme Court declared that no typical person could ever blame the premises owner for falling in a pothole or on a sidewalk, if he or she were able to see the hazard.
When I moderated and spoke at a premises liability seminar for Michigan personal injury lawyers on “open and obvious,” I pointed out that the entire assumption behind our current law has been proven false. Yet this outdated law still stands, wiping out hundreds of legitimate cases of severely injured state residents every year.
Worse yet, the public policy behind the “open and obvious” law could not be worse in Michigan. We actually reward property owners to create more dangerous conditions for people by letting these dangerous conditions, if they become “open and obvious” enough, become a complete bar to liability.
Finally, we may be able to change this ridiculous law. The Michigan House Judiciary Committee heard testimony recently on a bill that would alter the premises liability “open and obvious” defense into a question of comparative negligence. The committee will vote in a future session.
The bill, HB 5744 would add a section to the comparative negligence statute found under MCL 600.2959 of the Revised Judicature Act, to state “whether a condition is open and obvious may be considered by the trier of fact only in assessing the degree of comparative fault, if any, and shall not be considered with respect to any other issue of law or fact, including duty.”
The open and obvious doctrine first appeared 18 years ago in the Supreme Court case of Riddle v. McLouth Steel, a 1992 case that held that a property owner owes no duty to a person who already knew of a hazard.
Okay, that makes some sense, but the definition was then widely expanded in 2002 to become the basis for our current premises liability mess in Michigan. In Lugo v. Ameritech, the Michigan Supreme Court held that not only did the owner not have a duty to warn of an “open and obvious hazard,” but an owner also has no duty to repair a hazard either. Read here for a list of 38 judicial travesties of the Michigan Supreme Court.
The bill’s supporters, including Representative Kandrevas, say that the intent of HB 5744 is to return Michigan’s personal injury premises liability law back to the Riddle standard.
Why HB 5744 Should Become Law
As I said, the current public policy behind our premises liability law in Michigan could not be worse. The Lugo decision created a disincentive for property owners to keep their premises safe. And it actually creates a perverse incentive for property owners to make their property more unsafe – more dangerous – because the more dangerous and hazardous a condition can be shown to be, the more likely that property owner cannot be sued.
Alice in Wonderland anyone? It’s actually in a property owner’s best interest to leave a property as dangerous as possible rather than repair it. Unfortunately, that is not what is best for Michigan residents.
I applaud Democratic attorney general candidate Richard H. Bernstein, who testified to the Committee and said that the current doctrine is, in reality, also a disability rights issue. This is because Lugo created an objective standard that doesn’t take into account the condition of the plaintiff, thus making it a question of law for a judge to decide.
Bernstein, who is legally blind, pointed to Sidorowicz v. Chicken Shack, where the Michigan Court of Appeals held that a blind man who slipped and fell in a handicapped bathroom because of standing water was barred from recovery because a “normal” plaintiff would have seen the hazard.
This is an insane law we have in Michigan. A blind person was barred from bringing a lawsuit for his injuries because it was argued that a person with sight would have seen and avoided the danger – but what about the fact that the danger existed for all of us, in a place the public is encouraged and invited to use?
The real problem with our law goes beyond people with disabilities. The fact that our law punishes, actually punishes people with disabilities means that it also fails to protect other members of our society such as seniors citizens and young children. And as the study of human factors science has now proven, people cannot always pay 100 percent attention in real life.
Looking for cars in a parking lot means sometimes you don’t see the pothole by the store entrance. Looking at displayed merchandise on store shelves, something by the way that store owners spend thousands of dollars hiring experts in human factors science to do, means sometimes you don’t see the grape on the floor. Divided attention is a part of our world, and property owners should be making premises as safe as reasonably possible to protect people when this happens, as they sure as sure can be, know it will.
By the Way…
As I said, I applaud Richard Bernstein. I also think he would make a fantastic Attorney General for Michigan and strongly support him.
And while we are on the topic, shame on the Michigan Chamber of Commerce for opposing this bill without stating why. The Chamber is potentially an invaluable tool for improving Michigan today. But somewhere along the way, it became politically knee-jerk in opposing all efforts to improve civil justice, no matter how reasonable, because someone apparently decided protecting Michigan residents must be bad for businesses. I would argue quite the opposite, but that is another thought for another day.
– Steven M. Gursten is recognized as one of the nation’s top experts in serious car and truck accident injury cases and automobile insurance no-fault litigation. Michigan Auto Law has received the largest reported jury verdict for an automobile accident case in Michigan in seven of the past 10 years, including 2009, according to published year-end verdicts and settlements reports.
– Photo courtesy of Creative Commons, by puliarf
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