There are exceptions to the open and obvious rule in Michigan. Let us look at them in this article.
In the case of Hoffner v. Lanctoe, 492 Mich. 450, 455-56 (Mich. 2012), the Supreme Court ruled that there are two instances in which an otherwise open and obvious hazard could have special aspects that can still make the property owner responsible. To wit, when the danger is unreasonably dangerous or when the danger is effectively unavoidable.
In the ruling, the Supreme Court ruled the following:
“..reject plaintiff’s argument that the hazard, in this case, was effectively unavoidable because plaintiff had a business interest in entering the premises. Neither the caselaw of this state nor the principles underlying the well-established “open and obvious” doctrine support plaintiff’s theory of an expanded “business invitee” exception to the open and obvious doctrine, whereby invitees frequenting a business open to the public have an unassailable right to sue in tort for injuries caused by open and obvious conditions. Instead, long standing principles governing the law of premises liability apply with their traditional force to this case, and exceptions to the open and obvious doctrine are, and are intended to be, limited. The touchstone of the “special aspects” analysis is that the condition must be characterized by its unreasonable risk of harm. Thus, an “unreasonably dangerous” hazard must be just that—not just a dangerous hazard, but one that is unreasonably so. And it must be more than theoretically or retrospectively dangerous. Similarly, an “effectively unavoidable” condition must be an inherently dangerous hazard that a person is inescapably required to confront under the circumstances. In this case, the fact that plaintiff, a business invitee, had a contractual right to enter the premises does not mean that she was unavoidably compelled to confront the icy condition.”
In this situation, the Supreme Court said the following:
“[I]f the particular activity or condition creates a risk of harm only because the invitee does not discover the condition or realize its danger, then the open and obvious doctrine will cut off liability if the invitee should have discovered the condition and realized its danger. On the other hand, if the risk of harm remains unreasonable, despite its obviousness or despite knowledge of it by the invitee, then the circumstances may be such that the invitor is required to undertake reasonable precautions.”
Hoffner v. Lanctoe, 492 Mich. 450, 466 (Mich. 2012) explained it through these words:
“Though Joyce says that she had no choice but to traverse the slippery walkway to the front door, she presents no evidence that the condition and surrounding circumstances would “give rise to a uniquely high likelihood of harm” or that it was an unavoidable risk. First, Joyce could have simply removed her personal items another day or advised [the defendant] Debra Rubin that, if Rubin did not allow her to use the garage door, she would have to move another day. Further, unlike the example in Lugo, Joyce was not effectively trapped inside a building so that she must encounter the open and obvious condition in order to get out. Joyce specifically testified that, after she slipped twice on the sidewalk, she walked around the regular pathway to avoid the slippery condition. Therefore, though this is a close case, Joyce’s own testimony established that she could have used an available, alternative route to avoid the snowy sidewalk. While Debra Rubin’s alleged refusal to place a rug on the sidewalk or allow access through the garage, if true, may have been inhospitable, no reasonable jury could conclude that the aspects of the condition were so unavoidable that Joyce was effectively forced to encounter the condition”
In such a situation, there is no liability on the part of the property owner since there are no “special aspects” of the steps that create a “uniquely high likelihood of harm or severity of harm” if the risk is not avoided or serves to remove that condition from the open and obvious danger doctrine
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