            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS



CRISTAL ANDERSON,                                                    UNPUBLISHED
                                                                     October 1, 2019
               Plaintiff-Appellant,

v                                                                    No. 344401
                                                                     Macomb Circuit Court
DONALD P. MORRISSETT,                                                LC No. 2017-000845-NO

               Defendant-Appellee.


Before: K. F. KELLY, P.J., and TUKEL and REDFORD, JJ.

TUKEL, J. (concurring).

        I concur with the majority opinion. However, I write to further expound on the
inapplicability of Lymon v Freedland, 314 Mich App 746; 887 NW2d 456 (2016).

       It is noteworthy that “[t]he ‘special aspects’ exception to the open and obvious doctrine
for hazards that are effectively unavoidable is a limited exception.” Hoffner v Lanctoe, 492 Mich
450, 468; 821 NW2d 88 (2012) (emphasis added). Further, “[u]navoidabilty is characterized by
an inability to be avoided, an inescapable result, or the inevitability of a given outcome.” Id.
Thus, “the standard for ‘effective unavoidability’ is that a person, for all practical purposes, must
be required or compelled to confront a dangerous hazard.” Id. at 469.

       Indeed, consistent with these principles, the general rule has been that the necessity of
encountering an open and obvious hazard due to employment does not create a special aspect
under premises liability law. See id. at 471-472; Perkoviq v Delcor Homes-Lake Shore Pointe
Ltd, 466 Mich 11; 643 NW2d 212 (2002); Bullard v Oakwood Annapolis Hosp, 308 Mich App
403; 864 NW2d 591 (2014). But Lymon created an exception to this rule.

        In Lymon, the plaintiff was a healthcare aide who provided in-home care for individuals.
The plaintiff’s employer had an elderly client who suffered from dementia and Parkinson’s
disease, required constant care, and could not be left alone. Lymon, 314 Mich App at 749-750.
While attempting to walk up the driveway to the client’s home, the plaintiff slipped and fell as a
result of severe snowy and icy conditions, injuring herself. This Court held that the conditions
were open and obvious, id. at 758, but also held that there was a question of fact whether special



                                                -1-
aspects existed which would obviate the general open and obvious rule, id. at 763. Specifically,
the Court stated,

       [T]here was a question of fact as to whether [the] plaintiff was compelled to
       confront the hazardous risk posed by the snowy and icy conditions at the Freeland
       home. A reasonable juror could conclude that, unlike the plaintiff in Hoffner,
       [the] plaintiff in this case did not have a choice about whether to confront the icy
       conditions. As a home healthcare aide, [the] plaintiff did not have the option of
       abandoning her patient, an elderly woman who suffered from dementia and
       Parkinson’s disease. [Id. at 763-764 (emphasis added).]

Given the Supreme Court precedent, it is questionable that Lymon was correctly decided. See,
e.g., Hoffner, 462 Mich at 471-472 (“[I]t cannot be said that compulsion to confront a hazard by
the requirement of employment is any less ‘avoidable’ than the need to confront a hazard in order
to enjoy the privileges provided by a contractual relationship . . . .”), citing Perkoviq, 466 Mich
11. Regardless, applying Lymon to the instant case does not allow plaintiff to defeat defendant’s
motion for summary disposition.

        As the majority opinion correctly highlights, Lymon is distinguishable because the hazard
in this case was avoidable. Plaintiff could have taken any number of paths around the puddle,
but she chose not to.

        The majority opinion, however, fails to address the other differentiating fact from
Lymon—plaintiff here had the option to not deliver the mail to the house. Implicit in the holding
of Lymon is that employees generally have the ability and judgment to decline to perform a
work-related function when the circumstances are too hazardous. Assuming it was correctly
decided, the rationale of Lymon is that for public policy reasons, some jobs, due to their
importance to the safety and well-being of others, will effectively remove from the employee the
discretion of not performing a work-related function, despite the attendant compulsion of
confronting hazardous risks, such as when to do so would “abandon” a completely dependent
person whose health and welfare the plaintiff had undertaken to safeguard. See Lymon, 314
Mich App at 763-764 (stating that under the circumstances, “plaintiff did not have the option of
abandoning her patient”).1

        Here, by contrast, plaintiff’s job was to deliver the mail. While this constitutes an
important service to the people, the employment at issue here does not satisfy the Lymon test on
its own terms—it does not present the same issue of urgency or necessity as the healthcare
service presented in Lymon.




1
  This is not to say that an employee necessarily can make this decision free from any
consequences from his or her employer. For instance, if an employee is paid to perform an
expected task, the employer might choose to not pay the employee if the employee ended up not
performing that task.


                                                -2-
        Arguably, for public policy reasons, as Lymon held, “effective unavoidability” arises by
virtue of the obligation to care for a dependent patient. But if Lymon is correct in that respect,
that would be the full scope of its exception to the general rule; anything more would transform
the limited nature of the rule from an objective public-policy driven exception involving health
and safety to a subjective exception based on whether the particular plaintiff had what he or she
thought to be a strong reason for risking the hazard. As our Supreme Court has instructed, this
type of subjective test is not permissible. See Hoffner, 492 Mich at 470-471 (stating that “an
invitee’s subjective need or desire” to enter a premises does not “affect[] 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.”). Consequently, Lymon is inapplicable in this case for two reasons: plaintiff
could have delivered the mail while avoiding the hazard; and plaintiff’s employment obligations
were not of an urgent or necessary character involving health and safety. Rather, given that
plaintiff’s employment did not involve public health or safety, there can be no serious argument
that her obligations did not permit her to refuse to perform her employment obligations by
declining to deliver plaintiff’s mail.

                                                            /s/ Jonathan Tukel




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