Summary
explaining that she would have granted leave to ask whether Mann, 470 Mich. 320, a decision applying Lugo, was correctly decided
Summary of this case from Kandil-Elsayed v. F&E Oil, Inc.Opinion
No. 128139.
October 27, 2006.
Appeal from the Court of Appeals No. 250384.
Leave to Appeal Denied October 27, 2006.
I dissent from the decision to deny leave to appeal. I would grant leave to appeal and ask the parties to brief whether Mann v Shusteric Enterprises, Inc, 470 Mich 320 (2004), was correctly decided.
I dissent and would grant defendant's application for leave to appeal. This case and Robertson v Blue Water Oil Co (Docket No. 130100) squarely raise the issue whether the "avoidability" or "unavoidability" of a hazard, specifically in this case open and obvious snow and ice, is relevant in determining the existence of a "special aspect" that can serve to impose liability upon a premises owner when an invitee slips and falls. In Lugo v Ameritech Corp, Inc, 464 Mich 512, 519 (2001), this Court held that "only those special aspects that give rise to a uniquely high likelihood of harm or severity of harm if the risk is not avoided will serve to remove that condition from the open and obvious danger doctrine." The Court illustrated what constituted a "special aspect" as follows:
An illustration of such a situation might involve, for example, a commercial building with only one exit for the general public where the floor is covered with standing water. While the condition is open and obvious, a customer wishing to exit the store must leave the store through the water. In other words, the open and obvious condition is effectively unavoidable. [Id. at 518.]
In the instant case, the trial count found that the evidence demonstrated the existence of an alternative parking lot lacking the same alleged hazard from which plaintiff could have accessed the sidewalk leading to the entrance to defendant's building. I would grant leave to appeal to determine what effect, if any, the existence of the alternative parking lot had on the "avoidability" or "unavoidability" of the open and obvious snow and ice in defendant's other parking lot.
The crux of the "open and obvious hazard" doctrine is that an invitee has the personal responsibility to protect himself or herself from open and obvious dangers. I would grant leave to appeal to clarify whether the "avoidability" or "unavoidability" of a hazard posing an alleged "special aspect" is relevant to the exercise of such personal responsibility.