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Blackwell v. Franchi

Supreme Court of Michigan

July 25, 2018

SUSAN BLACKWELL, Plaintiff-Appellee,
v.
DEAN FRANCHI and DEBRA FRANCHI, Defendants-Appellants.

          Oakland CC: 2014-141562-NI

          Stephen J. Markman, Chief Justice Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement, Justices

          ORDER

         On March 6, 2018, the Court heard oral argument on the application for leave to appeal the January 31, 2017 judgment of the Court of Appeals. On order of the Court, the application is again considered. MCR 7.305(H)(1). In lieu of granting leave to appeal, we REMAND this case to the Court of Appeals to determine whether the defendants had a duty to warn the plaintiff of the condition. The panel did not consider the defendants' other arguments, which could have provided alternative grounds to affirm the trial court's grant of summary disposition, notwithstanding its conclusion-which we do not disturb-that questions of fact remain as to whether the particular condition was open and obvious.

         As an initial matter, we agree with both lower courts that the plaintiff was a licensee. In Preston v Sleziak, we adopted the Restatement (Second) of Torts' articulation of the duty owed by a premises possessor to licensees:

"A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
(a)the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b)he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved." [Preston v Sleziak, 383 Mich. 442, 453 (1970), quoting Restatement Torts, 2d, § 342, p 210, overruled in part on other grounds by Stitt v Holland Abundant Life Fellowship, 462 Mich. 591 (2000).]

         "The landowner owes no duty of inspection or affirmative care to make the premises safe for the licensee's visit." Stitt, 462 Mich. at 596. In short, the defendants could satisfy their duty of care to a licensee like the plaintiff by warning of any conditions that a licensee would not have reason to know of and that posed an unreasonable risk of harm; beyond this duty to warn of certain conditions, the defendants had no affirmative duty to inspect the premises or to make the premises safe for licensees. If the particular condition here did not give rise to a duty to warn, the defendants cannot be held liable.

         On the other hand, "the 'no duty to warn of open and obvious danger' rule is a defensive doctrine that attacks the duty element that a plaintiff must establish in a prima facie negligence case." Riddle v McLouth Steel Products Corp, 440 Mich. 85, 95-96 (1992). If the defendants had no duty to warn of the condition because it did not" 'involve[] an unreasonable risk of harm to [the plaintiff]'" or was not one that the defendants" 'should expect that [the plaintiff would] not discover, '" the plaintiff's prima facie negligence claim fails, regardless of the openness and obviousness of the condition. Preston, 383 Mich. at 453, quoting Restatement, § 342. A question of fact as to the openness and obviousness of the step is irrelevant if there is no prima facie claim. There is no need to "attack[] the duty element" if the defendants owed no duty in the first place. See Riddle, 440 Mich. at 96.

         Although the defendants did argue that if the condition was one for which they owed a duty to warn licensees, it was nevertheless open and obvious, and the trial court granted their motion for summary disposition on that basis, that was not the only basis for their summary disposition motion. The defendants have also consistently presented another argument: that the particular condition complained of here-a single step in a dark room-was not a condition that a licensee would not know of or have reason to know of that posed an unreasonable risk of harm such that the defendants had a duty to warn.

         If the defendants prevail on this claim, the trial court's ruling should be affirmed on this alternative basis. In other words, the panel should determine whether the defendants owed a duty to the plaintiff with respect to this particular condition regardless of whether the condition was open and obvious. See Preston, 383 Mich. at 453.

         Accordingly, we REMAND this case to the Court of Appeals for consideration of this issue it has not yet addressed: whether defendants owed plaintiff a duty to warn about the step because the plaintiff did not" 'know or have reason to know of the condition and the risk involved, '" and it involved" 'an unreasonable risk of harm, '" and the defendants should not have expected that a licensee like the plaintiff would" 'discover or realize the danger . . . .'" Id., quoting Restatement, § 342.

         We do not retain jurisdiction.

          McCormack, J. (concurring).

         I concur in the Court's order remanding this case to the Court of Appeals to address the defendants' remaining summary disposition claims, which could provide an alternative basis for affirming the trial court ruling. I agree that questions of fact remain as to whether the particular condition-an 8-inch step in a dark room-was open and obvious, and that that question may not be material if the defendants had no duty to warn the plaintiff for the other reasons they have given.

         I write briefly to respond to the dissent. A lot of the dissent's concerns may be addressed by the Court of Appeals in deciding the defendants' other claims within our traditional doctrinal framework. Indeed, settled doctrine provides an avenue to reach the same result as the dissent would have us reach today where the record so supports. But I want to clarify what I believe that inquiry should look like, and why I believe the dissent's alternative approach departs from well-established doctrine.

         First, the dissent relies mistakenly on principles of comparative negligence to define the scope of the defendants' duty to warn. I am sympathetic to the dissent's view that a social host should expect guests to behave prudently and should not be held liable for their negligence. And there is room for the dissent's underlying concerns to do work in a proper analysis of duty. The Restatement (Second) of Torts, which we adopted in Preston, provides that a possessor has a duty to warn of a condition if the condition "involves an unreasonable risk of harm to . . . licensees" and the possessor "should expect that they [a licensee] will not discover or realize the danger . . . ." 2 Restatement Torts, 2d, § 342, p 210 (emphasis added). This principle would support the dissent's contention that "[d]efendants had every right to expect that plaintiff was such a prudent person who would turn on the light and see the step, or at a minimum decline to walk into a darkened room without even the most cursory effort to determine whether it was safe to do so."

         And yet, this element of the duty to licensees does not mean that a host has no duty whatsoever to warn a social guest about any condition in a dark room (no matter how dangerous) because the host is entitled as a matter of law to expect guests to take the affirmative step of turning on a light switch to discover hazards. To be sure, a reasonably prudent person, walking through a strange house, might turn on the light before entering a dark room. And when a guest fails to do so, that failure may very well be relevant to apportioning damages under comparative negligence principles. But it will not be a reason for a court to find as a matter of law that there is no duty to the guest at all, no matter what dangerous condition awaited her.

         The Restatement contemplates that a licensee will discover "conditions which are perceptible by his senses, or the existence of which can be inferred from facts within the licensee's knowledge." Restatement, § 342, comment f, p 212. Some conditions in a dark room will be more predictable than others-for example, it might be a fact within the licensee's knowledge that "mudrooms . . . are [often] adjacent to garages" and that "garages are often themselves not level with the home" (these "facts" seem to be within the dissent's knowledge, curiously). The Restatement's standard thus assigns the homeowner a duty commensurate with the hazard: a slipper on the floor in a dark mudroom is different than an open shark tank in that same dark room. I trust the Court of Appeals can evaluate based on the record where the 8-inch step falls on that continuum.

         The dissent, in contrast, would create some kind of strange per se rule: defendants as a matter of law do not owe a duty to warn licensees of any danger that lurks in a dark room if there is a light switch nearby. Perhaps unsurprisingly, this rule does not map onto any argument that the defendants made in this case, and it would constitute a new approach to premises doctrine.[1] Under it, courts could decide for themselves as a legal matter that if a plaintiff appeared at all negligent (to a judge, unmoored from a factual record), she cannot recover and her suit is dismissed.

         Such a rule also would resurrect a judicial version of our long-dead contributory negligence regime under the camouflage of a duty analysis. But of course such an approach does not comport with the established understanding of negligence doctrine. The dissent owns its doctrinal contortion: "Although Brusseau was decided on the basis of contributory negligence, I believe that it would today likely be resolved on the basis of duty."

         But we judges are not authorized to apply contributory negligence principles by recasting them as duty. The Legislature has foreclosed that approach. Michigan, like most other jurisdictions, went from a contributory negligence jurisdiction to a comparative fault jurisdiction decades ago-comparative fault was judicially adopted in 1979 in Placek v City of Sterling Heights, 405 Mich. 638 (1979), and the Legislature specifically adopted comparative fault with 1982 PA 147. It was codified in its present form in 1995 in MCL 600.2959. The Legislature, by requiring that a plaintiff's recovery be reduced by the percentage of her own negligence, mandated that a plaintiff's negligence could not be used as a basis to dismiss a suit altogether.[2] And we have clearly held that the Legislature's adoption of comparative fault did not abrogate the common-law, status-based duties of care of premises possessors:

Once a defendant's legal duty is established, the reasonableness of the defendant's conduct under that standard is generally a question for the jury. The jury must decide whether the defendant breached the legal duty owed to the plaintiff, that the defendant's breach was the proximate cause of the plaintiff's injuries, and thus, that the defendant is negligent.
* * * Conversely, comparative negligence is an affirmative defense. Michigan adopted this standard to promulgate a "fair system of apportionment of damages." Under this doctrine, a defendant may present evidence of a plaintiff's negligence in order to reduce liability. [Riddle, ...

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