            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



ERICA DEAS,                                                        UNPUBLISHED
                                                                   April 25, 2019
               Plaintiff-Appellee,

v                                                                  No. 340068
                                                                   Oakland Circuit Court
HARTMAN AND TYNER, INC.,                                           LC No. 2016-155557-NO
doing business as POINTE O’WOODS
APARTMENTS,

               Defendant-Appellant.


Before: JANSEN, P.J., and METER and GLEICHER, JJ.

GLEICHER, J. (concurring in part and dissenting in part).

        I concur with the majority’s decision to affirm the trial court’s grant of summary
disposition in this premises liability case because I am compelled to do so by our Supreme
Court’s opinion in Hoffner v Lanctoe, 492 Mich 450; 821 NW2d 88 (2012). I write separately to
briefly describe the deficiencies in the doctrinal approach to premises liability law manifest in
Hoffner and predecessor cases, and exemplified by this case.

        Plaintiff Erica Deas slipped and fell on snow-covered ice that had accumulated under her
carport. Deas knew the snow and ice were there; they were obvious. Deas claims that the
defendant should have eliminated the snow and ice because the condition was dangerous, present
for several days, and imperiled her ability to safely enter and exit her vehicle.

        Because this theory does not hinge on defendant’s failure to warn, the majority’s
discourse on the open-and-obvious doctrine is misplaced. Here, Deas contends that the
landowner failed to exercise reasonable care to protect her from the danger, notwithstanding her
awareness of it. Rather than analyzing the danger using open-and-obvious principles, the proper
legal question is: should the landowner have reasonably anticipated that Deas would suffer an
injury despite the condition’s obviousness?

       The majority’s perception that the open-and-obvious-danger doctrine bears relevance is
understandable, as Michigan’s common law conflates a landowner’s duty with the landowner’s
defenses. A finding that a danger is “open and obvious” eliminates the landowner’s duty to warn


                                                -1-
or otherwise protect against the danger, thereby serving to immunize the landowner for any
negligence in maintaining the premises. See Lugo v Ameritech Corp, Inc, 464 Mich 512, 516-
517; 629 NW2d 384 (2001). In Michigan, the open-and-obvious-danger doctrine corresponds to
contributory negligence. It focuses only on the plaintiff’s failure to conform to an objective
standard of care and bars recovery even when the defendant could and should have eliminated a
hazard. Our common law transforms even unreasonable dangers created or tolerated by a
landowner into risks that must be born only by the plaintiff. In other words, the plaintiff’s failure
to exercise reasonable care entirely negates the defendant’s duty of care.

         In all other negligence cases, a system of comparative fault dictates that a plaintiff’s
negligence must be weighed against a defendant’s, and fault apportioned accordingly. The
Supreme Court justified replacing contributory negligence with comparative fault in Kirby v
Larson, 400 Mich 585, 620-622; 256 NW2d 400 (1977) (cleaned up), explaining that
contributory negligence had outlived its usefulness (“The policy . . . was designed to protect
infant industries from oversympathetic juries who regarded these corporation defendants as
intruders, as well as immensely rich”), that contributory negligence worked an inequity because
“it fails to distribute responsibility in proportion to fault,” and that the doctrine “visits the entire
loss caused by the fault of two parties on one of them alone, and that one the injured plaintiff,
least able to bear it, and quite possibly much less at fault than the defendant who goes scot free.
No one ever has succeeded in justifying that as a policy, and no one ever will.” The Legislature
subsequently codified comparative negligence by enacting MCL 600.2957(1), which provides
that in tort cases, “the liability of each person shall be allocated . . . by the trier of fact and,
subject to [MCL 600.6304], in direct proportion to the person’s percentage of fault.”

        Michigan’s approach to premises liability law reinvigorates contributory negligence and
ignores both the common law and the statutory comparative negligence frameworks. An open-
and-obvious danger not only eliminates the duty to warn, but sweeps away any duty to protect an
invitee from dangerous conditions on the premises. Except in the rarest of circumstances, only
the injured plaintiff bears any responsibility to avoid the consequences of an obvious hazard.

         With the landowner’s duty to protect an invitee against known or obvious dangers written
out of our common law, this Court has approached every premises liability case as presenting
one issue: whether the danger was open and obvious. If a danger is “open and obvious,” our
common law instructs, the landowner has no duty, even when the theory of liability (as here)
centers on the landowner’s failure to diminish a hazard rather than to warn of its presence. This
is not what the Restatements of Torts teach. Indeed, the Restatement Torts, 3d clarifies that a
landowner has a duty of reasonable care whenever “artificial” or “natural conditions on the
land . . . pose risks” to those who enter the land. 2 Restatement Torts, 3d, § 51(b)-(c), p 242.
The duty does not evaporate when a danger is open and obvious:

        The duty imposed in this Section, as amplified in this Comment, is consistent with
        § 343A, although it is extended beyond the invitees covered in § 343A to all
        entrants on the land. . . . Known or obvious dangers pose less of a risk than
        comparable latent dangers because those exposed can take precautions to protect
        themselves. Nevertheless, despite the opportunity of entrants to avoid an open
        and obvious risk, in some circumstances a residual risk will remain. Land


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          possessors have a duty of reasonable care with regard to those residual risks. [2
          Restatement Torts, 3d, § 51, comment k, p 251.]

        Under the Second and Third Restatements, a landowner is not excused from remedying a
known or obvious danger. Rather, the obviousness of a danger “bears on the assessment of
whether reasonable care was employed, but it does not pretermit the land possessor’s liability.”
Id. In other words, an obvious danger does not mean that the landowner must prevail. Rather,
the legal questions become (1) whether the landowner should have remediated the danger despite
its obviousness, and (2) whether the invitee failed to use reasonable care in the face of the
obvious danger. Under this approach, the defendant’s duty is separate and distinct from the
plaintiff’s. 1

        Michigan’s blurring of two distinct duty analyses began with Lugo. Before Lugo, the
Supreme Court expressly adopted the principles embodied in 2 Restatement, Torts, 2d, § § 343
and 343A. See Riddle v McLouth Steel Prods Corp, 440 Mich 85, 94-95; 485 NW2d 676 (1992);
Bertrand v Alan Ford, 449 Mich 606, 610-612; 537 NW2d 185 (1995). In Lugo, 464 Mich at
524, the Supreme Court purported to apply the legal principles articulated in 2 Restatement
Torts, 2d, §§ 343 and 343A. Unfortunately, the Court merely professed to follow the
Restatement. Instead, Lugo forged a new path by eliminating a landowner’s duty “to protect an
invitee from open and obvious dangers” unless “special aspects of a condition make even an
open and obvious risk unreasonably dangerous[.]” Lugo, 464 Mich at 517. This rule is
inconsistent with the pertinent sections of 2 Restatement Torts, 2d, §§ 343, 343A, pp 215-216,
218, which provide:

          § 343. Dangerous Conditions Known to or Discoverable by Possessor

          A possessor of land is subject to liability for physical harm caused to his invitees
          by a condition on the land if, but only if, he

                  (a) knows or by the exercise of reasonable care would discover the
          condition, and should realize that it involves an unreasonable risk of harm to such
          invitees, and

                   (b) should expect that they will not discover or realize the danger, or will
          fail to protect themselves against it, and

                 (c) fails to exercise reasonable care to protect them against the danger.


1
    An earlier draft of 2 Restatement Torts, 3d, § 51, comment k (2010), put it this way:
          The rule that a land possessor was not subject to liability for any open and
          obvious danger is much easier to justify in an era when contributory negligence
          constituted a complete bar to recovery. An entrant who fails to take self-
          protective measures may be contributorily negligent and, if so, that would avoid
          any liability by the possessor. However, such a rule cannot be justified after
          contributory negligence becomes a comparative defense.

                                                   3
       § 343A. Known or Obvious Dangers

       (1) A possessor of land is not liable to his invitees for physical harm caused to
       them by any activity or condition on the land whose danger is known or obvious
       to them, unless the possessor should anticipate the harm despite such knowledge
       or obviousness.

       (2) In determining whether the possessor should anticipate harm from a known or
       obvious danger, the fact that the invitee is entitled to make use of public land, or
       of the facilities of a public utility, is a factor of importance indicating that the
       harm should be anticipated.

        Notably, the term for the defense to liability used by Restatement Torts, 2d was “known
or obvious dangers,” not “open and obvious dangers.” In addition to changing the name of the
doctrine, the Michigan Supreme Court fundamentally altered its character. Restatement Torts,
2d proposed that a landowner should not bear liability for injuries caused by dangerous
conditions on the land that were known to an invitee “unless the possessor should anticipate the
harm despite such knowledge or obviousness.” 2 Restatement Torts, 2d, § 343A(1), p 218. The
Supreme Court limited this duty to situations presenting “special aspects,” a term of the Court’s
own creation, which it defined narrowly to include only “effectively unavoidable” risks and
severe dangers such as “an unguarded thirty foot deep pit in the middle of a parking lot.” Lugo,
464 Mich at 518. The Court further extinguished a landowner’s liability with this admonition:
“In sum, 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.” Id. at 518-519 (emphasis added). As the subsequent caselaw has
proven, such circumstances are virtually nonexistent.

         Hoffner further distances our premises liability law from the Restatement. In Hoffner,
492 Mich at 473, the Court held that to establish a “special aspect” and an “effectively
unavoidable” danger, the plaintiff must have been “compelled by extenuating circumstances with
no choice but to traverse a previously unknown risk.” Hoffner’s “special aspects” and
“effectively unavoidable” formulations do not derive from the Restatement. To the contrary,
they cancel the duty set forth in 2 Restatement Torts, 2d, § 343A(1), and its relevant
commentary. As Justice Michael Cavanaugh pointed out in his dissent, by vitalizing a new
version of contributory negligence, Hoffner’s rule continues the progression of our premises
liability law away from comparative fault and the Restatement and toward blanket immunity.
Hoffner, 492 Mich at 487-488 (CAVANAGH, J., dissenting).

       Were it not for Hoffner I would hold that Deas has created a jury question regarding
whether defendant breached its obligation to maintain the premises in a reasonably safe
condition. Defendant knew or should have known that the area under the carport was icy and
snowy. Defendant knew or should have known that Deas was entitled to park there. Whether



                                                4
Deas should have parked elsewhere depends on how the factfinder weighs each party’s
culpability for the accident. Under a comparative-negligence regime, as modified by Michigan’s

statutory law, whether Deas should have behaved differently is merely one element of a larger
factual picture. Under the Restatement and MCL 600.2957(1), it should be for a jury to decide
how to apportion fault for Deas’s fall.



                                                         /s/ Elizabeth L. Gleicher




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