Premises Liability - Open and Obvious Doctrine

The open and obvious doctrine of premises liability is one of those classic tort topics.  In Clogg v. JNL Ventures before the Michigan Court of Appeals the Court found that the doctrine applied to an uneven sidewalk covered by leaves.  The Plaintiff was walking into a restaurant owned by the Defendant in late November 2007.  There was some speculation that a "two-inch lip" in the sidewalk underneath the leaves caused the plaintiff to trip, but this was not definitively shown. 

The duty owed by a landowner to visitors depends on the visitor's status.  Where the visitors are on the land to conduct some sort of business which the owner has the potential to draw economic benefit from  the duty of the landowner is highest.  It consists of the duty to make the premises reasonably safe from harm, to warn of known dangers, and to reasonably inspect the premises and fix or warn of any defects that are discovered or should have been discovered upon a reasonable inspection of the premises.  This duty does not apply to conditions that are known to the invitee or which are open and obvious to such a degree that the invitee is reasonably expected to discover them.  It is a condition that is "readily apparent or easily discoverable upon casual inspection by the average user of ordinary intelligence."

The Court ruled that in autumn in Michigan leaf covered sidewalks are common and that "[c]asual observation would alert the average individual of the potential danger posed from slipping on the leaves or tripping over something hidden under the leaves."  This ruling is influenced by the fact that the Plaintiff was unable to show exactly what it was on the sidewalk that actually caused her to trip and the fact that uneven sidewalks are not an uncommon occurrence.  All the plaintiffs offered the court was speculation on that point.  Although it is normal to see a sidewalk covered with leaves during the fall in Michigan, the duty that a landowner owes to a business invitee includes a duty to inspect.  The leaves themselves and dangers readily apparent on the surface of the leaves are open and obvious, but a hazardous condition located beneath them might not be depending on the nature of the condition and the degree to which the leaves cover it.  If a dangerous condition exists under the leaves such as a sharp object that is not easily discoverable and which does not ordinarily occur on a sidewalk then the open and obvious doctrine probably would not apply.  That a two inch lip in the sidewalk is a condition that one would expect to find on a sidewalk whether it is covered by leaves or not does not help the plaintiff either.

s/ Kurt Koehler
308 1/2 S. State Street Suite 36
Ann Arbor, Michigan 48198
(Washtenaw County)