Order                                                                      Michigan Supreme Court
                                                                                 Lansing, Michigan

  December 8, 2017                                                                 Stephen J. Markman,
                                                                                              Chief Justice

                                                                                         Brian K. Zahra
                                                                                 Bridget M. McCormack
  153701                                                                               David F. Viviano
                                                                                   Richard H. Bernstein
                                                                                        Kurtis T. Wilder
                                                                                  Elizabeth T. Clement,
  JOYANNA LYMON,                                                                                   Justices
           Plaintiff-Appellee,
  v                                                      SC: 153701
                                                         COA: 323926
                                                         Washtenaw CC: 13-000446-NZ
  KAREN FREEDLAND, JIM FREEDLAND,
  and KAREN FREEDLAND TRUST,
            Defendants-Appellants.

  _________________________________________/

         By order of November 30, 2016, the application for leave to appeal the March 29,
  2016 judgment of the Court of Appeals was held in abeyance pending the decision in
  Fowler v Menard, Inc (Docket No. 152519). On order of the Court, leave to appeal
  having been denied in Fowler on June 30, 2017, 500 Mich 862 (2017), the application is
  again considered, and it is DENIED, there being no majority in favor of granting leave to
  appeal or taking other action.

        MARKMAN, C.J., (dissenting).

         I respectfully dissent from this Court’s order denying leave to appeal. I would
  grant leave to consider whether the hazard here was “effectively unavoidable” and to
  provide greater clarity concerning the circumstances in which an “open and obvious”
  condition contains a “special aspect.”

         Plaintiff Joyanna Lymon worked as a nursing aide for an elderly woman who
  required around-the-clock home care. On January 4, 2013, plaintiff walked up the steep
  and icy driveway to reach the home. Unfortunately, she fell and suffered a fractured leg.
  Four other people who had approached the home at around the same time successfully
  traversed the snow-covered grass to the left of the driveway leading to the front door,
  although they acknowledged that there was a large bush on the grass that partially
  obstructed that path and that one would eventually need to walk on the uppermost part of
  the driveway to reach the door. Plaintiff sued the homeowners, alleging that they
  negligently maintained the driveway, and defendants moved for summary disposition on
  the grounds that the danger was “open and obvious” and therefore that they had no duty
  to protect against that danger. The trial court denied defendants’ motion and the Court of
  Appeals affirmed. Lymon v Freedland, 314 Mich App 746, 749 (2016).
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        A premises owner generally owes a duty to an invitee to exercise reasonable care
to protect the invitee from an unreasonable risk of harm caused by a dangerous condition
on the land. Bertrand v Alan Ford, Inc, 449 Mich 606, 609 (1995). This duty does not
extend to hazards that are “open and obvious.” Id. at 610-612. If, however, despite its
openness and obviousness, the risk involves some “special aspect” of dangerousness, the
premises owner is required to undertake reasonable precautions. Id. at 614. This Court
has specifically recognized that a special aspect of an open and obvious condition that
renders it effectively unavoidable may give rise to liability. Lugo v Ameritech Corp, 464
Mich 512, 518 (2001). “[T]he standard for ‘effective unavoidability’ is that a person, for
all practical purposes, must be required or compelled to confront a dangerous hazard. As
a parallel conclusion, situations in which a person has a choice whether to confront a
hazard cannot truly be unavoidable, or even effectively so.” Hoffner v Lanctoe, 492
Mich 450, 469 (2012) (emphasis omitted).

       First, I am not yet persuaded that the “hazard” here-- defendants’ steep and icy
driveway-- was effectively unavoidable. Even assuming that plaintiff could not have
avoided approaching the home because she needed to care for her patient, 1 plaintiff could
have approached the home by walking up the snow-covered grass to the left of the
driveway. Although there was a bush that obstructed part of this route, a mere
inconvenience is not the equivalent of something being “effectively unavoidable.” Id.
Additionally, while there was snow on the grass, I question whether snow-covered grass
can reasonably be considered a “hazard” that is the equivalent of walking on ice. 2
Finally, even though one would have to walk on the uppermost part of the driveway to
reach the door, it appears undisputed that this part of the driveway was flat and not nearly
as icy as the lower part of the driveway. Accordingly, I would grant leave to consider
whether defendants’ steep and icy driveway was truly an “effectively unavoidable”
condition or whether the term is effectively being redefined.




1
  But see Hoffner, 492 Mich at 470-471 (“Michigan caselaw does not support providing
special protection to those invitees who have paid memberships or another existing
relationship to the businesses or institutions that they frequent above and beyond that
owed to any other type of invitee. Neither possessing a right to use services, nor an
invitee’s subjective need or desire to use services, heightens a landowner’s duties to
remove or warn of hazards or affects an invitee’s choice whether to confront an obvious
hazard. To conclude otherwise would impermissibly shift the focus from an objective
examination of the premises to an examination of the subjective beliefs of the invitee.”).
    2
      That four other people safely approached the home by walking up the snow-covered
    grass arguably suggests that this route was less hazardous than walking up the driveway
    and that it constituted a reasonable alternative path to the front door.
                                                                                          3

       Second, I would grant leave to clarify the proper analysis for determining under
what circumstances an open and obvious condition contains a “special aspect.” In
Hoffner, this Court described situations “in which the special aspects of an open and
obvious hazard could give rise to liability: when the danger is unreasonably dangerous or
when the danger is effectively unavoidable.” Id. at 463. The Court of Appeals-- not
altogether unreasonably-- interpreted this language to mean that there is a special aspect
if a condition is either unreasonably dangerous or effectively unavoidable. Lymon, 314
Mich App at 758-759. However, I believe that a fuller reading of Hoffner and this
Court’s previous decisions discussing “special aspects” may reveal a more nuanced view.

        “The touchstone of the ‘special aspects’ analysis is that the condition must be
characterized by its unreasonable risk of harm.” Hoffner, 492 Mich at 455; see also
Lugo, 464 Mich at 517 (“[T]he critical question is whether there is evidence that creates a
genuine issue of material fact regarding whether there are truly ‘special aspects’ of the
open and obvious condition that differentiate the risk from typical open and obvious risks
so as to create an unreasonable risk of harm[.]”); Bertrand, 449 Mich at 611 (“[I]f 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.”) “An ‘unreasonably dangerous’ hazard must be just that—not
just a dangerous hazard, but one that is unreasonably so.” Hoffner, 492 Mich at 455-456.
This Court has further recognized that “an open and obvious condition might be
unreasonably dangerous because of special aspects that impose an unreasonably high risk
of severe harm,” i.e., the condition creates “a substantial risk of death or severe
injury . . . .” Lugo, 464 Mich at 518. In this latter regard, we used as an example “an
unguarded thirty foot deep pit in the middle of a parking lot.” Id. A hazard that creates a
substantial risk of death or severe injury appears to be, ipso facto, a condition that is
unreasonably dangerous, even if the hazard is not effectively unavoidable. This
conclusion makes sense, as such a condition is unreasonably dangerous in that the
potential severity of the injury that the condition could cause is fairly understood as
unreasonable.

        By contrast, if a condition is “effectively unavoidable,” it may yet be unreasonably
dangerous because of the likelihood that an injury will occur. However, it is certainly
indisputable that not every effectively unavoidable condition also creates an unreasonable
risk of harm. For example, this Court has embraced the general rule that “steps and
differing floor levels [are] not ordinarily actionable unless unique circumstances
surrounding the area in issue made the situation unreasonably dangerous.” Bertrand, 449
Mich at 614 (emphasis omitted). It seems unlikely that an otherwise reasonably
constructed step that is effectively unavoidable contains a “special aspect” because--
unlike the standing water covering the only exit to a retail store that this Court in Lugo
said “might” constitute a special aspect-- “steps are the type of everyday occurrence that
people encounter, [and] under most circumstances, a reasonably prudent person will look
where he is going, will observe the steps, and will take appropriate care for his own
                                                                                                                4

safety.” Id. at 616. In other words, in contrast to a condition that creates a substantial
risk of death or severe bodily harm, a condition that is effectively unavoidable may
constitute an unreasonably dangerous condition, but this would not seem to be so in every
case.

       That is, when read together, our decisions appear to indicate that the central
inquiry is whether an open and obvious condition gives rise to an unreasonable risk of
harm despite its open and obvious nature and that a hazard may pose an unreasonable risk
of harm if: (1) the condition creates a substantial risk of death or severe injury, or (2) the
condition is effectively unavoidable. While the first category would seem almost
necessarily to give rise to an unreasonable risk of harm-- as any potential injury caused
by the condition would likely be severe-- a condition fitting within the second category
would not seem necessarily to have the same impact. I would grant leave to consider this
issue further and more generally to provide greater guidance to the bench and bar in
assessing premises-liability claims of the present sort.

       CLEMENT, J., did not participate.




                          I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          December 8, 2017
       a1205
                                                                              Clerk
