                                                                       Michigan Supreme Court
                                                                             Lansing, Michigan
                                                 Chief Justice:          Justices:



Opinion                                          Robert P. Young, Jr. Michael F. Cavanagh
                                                                      Marilyn Kelly
                                                                      Stephen J. Markman
                                                                      Diane M. Hathaway
                                                                      Mary Beth Kelly
                                                                      Brian K. Zahra

                                                                  FILED JULY 31, 2012

                             STATE OF MICHIGAN

                                     SUPREME COURT


 CHARLOTTE HOFFNER,

               Plaintiff-Appellee,
               Cross-Appellant,
 and

 BLUE CROSS AND BLUE SHIELD OF
 MICHIGAN,

               Plaintiff-Appellee,

 v                                                        No. 142267

 RICHARD LANCTOE and LORI
 LANCTOE,

               Defendants-Appellants,
               Cross-Appellees,
 and

 PAMELA MACK, TIFFANI K. AHO, and
 MOUSIE, INC., d/b/a FITNESS XPRESS,

               Defendants.


 BEFORE THE ENTIRE BENCH

 YOUNG, C.J.
       Michigan, being above the 42nd parallel of north latitude, is prone to winter. And

with winter comes snow and ice accumulations on sidewalks, parking lots, roads, and

other outdoor surfaces. Unfortunately, the accumulation of snow, ice, and other slippery

hazards on surfaces regularly traversed by the citizens of this state results in innumerable

mishaps and injuries each year. This case tests the extent of a premises owner’s liability

for one of those winter-related accidents. In this case, plaintiff recognized the danger

posed by ice on a sidewalk, yet chose to confront the hazard in an ultimately unsuccessful

effort to enter the premises. Plaintiff claims that the premises’ owners should be liable

for her injuries, while the premises’ owners argue that they are not liable because

plaintiff’s accident occurred as the result of an ordinary, open and obvious condition.

       In many regards, this case is unremarkable both in its simplicity and its frequent

occurrence in Michigan. Yet there has been some confusion surrounding the application

of the open and obvious doctrine to wintry conditions. In Michigan, a premises possessor

owes a duty to use reasonable care to protect invitees from an unreasonable risk of harm

caused by dangerous conditions on the premises, including snow and ice conditions.

However, liability does not arise for open and obvious dangers unless special aspects of a

condition make even an open and obvious risk unreasonably dangerous. This may

include situations in which it is “effectively unavoidable” for an invitee to avoid the

hazard posed by such an inherently dangerous condition.

       We reject plaintiff’s argument that the hazard in this case was effectively

unavoidable because plaintiff had a business interest in entering the premises. Neither

the caselaw of this state nor the principles underlying the well-established “open and


                                             2
obvious” doctrine support plaintiff’s theory of an expanded “business invitee” exception

to the open and obvious doctrine, whereby invitees frequenting a business open to the

public have an unassailable right to sue in tort for injuries caused by open and obvious

conditions. Instead, longstanding principles governing the law of premises liability apply

with their traditional force to this case, and exceptions to the open and obvious doctrine

are, and are intended to be, limited. The touchstone of the “special aspects” analysis is

that the condition must be characterized by its unreasonable risk of harm. Thus, an

“unreasonably dangerous” hazard must be just that—not just a dangerous hazard, but one

that is unreasonably so.    And it must be more than theoretically or retrospectively

dangerous.   Similarly, an “effectively unavoidable” condition must be an inherently

dangerous hazard that a person is inescapably required to confront under the

circumstances. In this case, the fact that plaintiff, a business invitee, had a contractual

right to enter the premises does not mean that she was unavoidably compelled to confront

the icy condition.

       We reverse in part the judgment of the Court of Appeals and remand this case to

the circuit court for entry of summary disposition in favor of defendants Richard and Lori

Lanctoe. The ice on the sidewalk was open and obvious, and plaintiff has not provided

evidence of special aspects of the condition that justify imposing liability on the Lanctoes

despite the open and obvious nature of the danger.




                                             3
                       I. FACTS AND PROCEDURAL HISTORY

       Plaintiff Charlotte Hoffner had a paid membership to a fitness center, Fitness

Xpress, one of several tenants located in a commercial building in Ironwood, Michigan.1

There is only one entrance to Fitness Xpress, which is serviced by a sidewalk that runs

along the length of the building and connects the building to its parking lot.         The

building, sidewalk, and parking lot are all owned and maintained by defendants Richard

and Lori Lanctoe. Under the lease agreements between the building’s business tenants

and the Lanctoes, the Lanctoes are responsible for snow removal from the parking lot and

sidewalk, although some tenants occasionally salt the sidewalk in front of the building.

       At around 11:00 a.m. on January 28, 2006, plaintiff drove to the building with the

intent to exercise. Although the Lanctoes had already cleared and salted the parking lot

and sidewalk earlier that day, by the time plaintiff arrived she observed that the sidewalk

was icy at the entrance to Fitness Xpress. Plaintiff stated that she could “see the ice and

the roof was dripping.”     Notwithstanding her awareness of the conditions, plaintiff

formed the opinion that the ice “didn’t look like it would be that bad” and decided to

enter the building. As plaintiff explained, “it was only just a few steps,” and “I thought

that I could make it.” Unfortunately, she fell on the ice, injuring her back.

       Plaintiff subsequently brought the instant premises liability suit against the

Lanctoes, as well as Fitness Xpress and its owners and operator. All defendants moved

1
  References in this opinion to “plaintiff” are to Charlotte Hoffner and not to her medical
insurer, Blue Cross Blue Shield of Michigan, which intervened as a party plaintiff.



                                             4
for summary disposition. Relevant here, defendants argued that plaintiff was barred from

pursuing her claim of premises liability because of the open and obvious doctrine, given

that the ice was plainly visible, which she recognized before confronting it. The Gogebic

Circuit Court denied all of the defendants’ motions for summary disposition, reasoning

that there was a question of fact regarding whether the icy hazard was “effectively

unavoidable” in part because a jury could find that plaintiff had a right to access the

building to get value for her membership. The circuit court explained, “So with one

entrance, and the fact that [plaintiff] not only had a good reason to go in there, had

business to go in there, contractually [plaintiff] had an interest in the activities and

equipment that were inside there.”

        Defendants sought leave to appeal, and the Court of Appeals unanimously

affirmed in part and reversed in part.2 The Court reversed the trial court’s ruling with

regard to Fitness Xpress and its owners, holding that they were entitled to summary

disposition because they did not have possession and control of the sidewalk where the

slip and fall occurred. However, the Court affirmed with regard to the trial court’s ruling

that the open and obvious doctrine does not bar plaintiff’s claims against the premises’

owners, the Lanctoes, because the dangerous condition was effectively unavoidable.

Similar to the reasoning employed by the circuit court, the Court of Appeals reasoned

that



2
    Hoffner v Lanctoe, 290 Mich App 449; 802 NW2d 648 (2010).



                                            5
         Hoffner had contracted to use Fitness Xpress and may have needed to use it
         for health reasons. Because there was only one customer entrance to the
         facility that was fronted by the icy sidewalk, ‘the objective nature of the
         condition of the premises at issue’ reveals that the icy sidewalk was
         effectively unavoidable as it related to the use of the premises.[3]

In short, the panel believed that because there did not exist an alternative route by which

Hoffner, as an invitee with a contractual right to use the facility, could enter the building,

the open and obvious doctrine did not serve as a bar to plaintiff’s claim.

         The Lanctoes filed an application for leave to appeal in this Court, and we directed

the clerk to schedule arguments on whether to grant the application for leave to appeal or

take other action.4

                                 II. STANDARD OF REVIEW

         The circuit court denied the Lanctoes’ motion for summary disposition pursuant to

MCR 2.116(C)(10), which the Court of Appeals affirmed. A motion made under MCR

2.116(C)(10) tests the factual sufficiency of a claim, and when the proffered evidence

fails to establish a genuine issue of material fact, the moving party is entitled to judgment

as a matter of law.        This Court reviews de novo the grant or denial of summary

disposition.5




3
    Id. at 464 (citations omitted).
4
    Hoffner v Lanctoe, 489 Mich 877 (2011).
5
    Maiden v Rozwood, 461 Mich 109, 118, 120; 597 NW2d 817 (1999).



                                              6
                                      III. ANALYSIS

                                 A. PRINCIPLES OF LAW

         The law of premises liability in Michigan has its foundation in two general

precepts. First, landowners must act in a reasonable manner to guard against harms that

threaten the safety and security of those who enter their land.6         Second, and as a

corollary, landowners are not insurers; that is, they are not charged with guaranteeing the

safety of every person who comes onto their land.7 These principles have been used to

establish well-recognized rules governing the rights and responsibilities of both

landowners and those who enter their land. Underlying all these principles and rules is

the requirement that both the possessors of land and those who come onto it exercise

common sense and prudent judgment when confronting hazards on the land. These rules

balance a possessor’s ability to exercise control over the premises with the invitees’

obligation to assume personal responsibility to protect themselves from apparent dangers.

         The starting point for any discussion of the rules governing premises liability law

is establishing what duty a premises possessor owes to those who come onto his land.




6
    See Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185 (1995).
7
  See Lugo v Ameritech Corp, Inc, 464 Mich 512, 517; 629 NW2d 384 (2001); Bradley v
Burdick Hotel Co, 306 Mich 600, 604; 11 NW2d 257 (1943); accord Dascola v YMCA of
Lansing, 490 Mich 899 (2011) (YOUNG, C.J., concurring) (“It is axiomatic in Michigan
law that a premises owner is not an absolute insurer against every conceivable harm that
may occur on his premises.”).



                                              7
With regard to invitees,8 a landowner owes a duty to use reasonable care to protect

invitees from unreasonable risks of harm posed by dangerous conditions on the owner’s

land.9 Michigan law provides liability for a breach of this duty of ordinary care when the

premises possessor knows or should know of a dangerous condition on the premises of

which the invitee is unaware and fails to fix the defect, guard against the defect, or warn

the invitee of the defect.10

         Perfection is neither practicable nor required by the law, and “[u]nder ordinary

circumstances, the overriding public policy of encouraging people to take reasonable care

for their own safety precludes imposing a duty on the possessor of land to make ordinary

[conditions] ‘foolproof.’”11 Thus, an integral component of the duty owed to an invitee

considers whether a defect is “open and obvious.”12 The possessor of land “owes no duty

to protect or warn” of dangers that are open and obvious because such dangers, by their


8
  The duty of care owed by a premises possessor will, of course, depend on whether a
plaintiff is an invitee, a licensee, or a trespasser. See generally Stitt v Holland Abundant
Life Fellowship, 462 Mich 591, 596-598; 614 NW2d 88 (2000). In this case, it is
undisputed that plaintiff was an invitee—the class to whom the premises owner owes the
greatest duty of care.
9
   Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 499; 418 NW2d 381 (1988),
citing 2 Restatement Torts, 2d, § 343, pp 215-216.
10
  Bertrand, 449 Mich at 609; Samuelson v Cleveland Iron Mining Co, 49 Mich 164, 170;
13 NW 499 (1882).
11
     Bertrand, 449 Mich at 616-617.
12
  Lugo, 464 Mich at 516. When no material issues of fact exist, the existence of a legal
duty is a question of law for the court to decide. See, e.g., Trager v Thor, 445 Mich 95;
516 NW2d 69 (1994).




                                             8
nature, apprise an invitee of the potential hazard, which the invitee may then take

reasonable measures to avoid.13 Whether a danger is open and obvious depends on

whether it is reasonable to expect that an average person with ordinary intelligence would

have discovered it upon casual inspection.14 This is an objective standard, calling for an

examination of “the objective nature of the condition of the premises at issue.”15

         Yet, as a limited exception to the circumscribed duty owed for open and obvious

hazards, liability may arise when special aspects of a condition make even an open and

obvious risk unreasonable. When such special aspects exist, a premises possessor must

take reasonable steps to protect an invitee from that unreasonable risk of harm.16 We

explained in Lugo v Ameritech Corp, Inc, how to approach whether special aspects exist

in a particular case:

                In considering whether a condition presents such a uniquely
         dangerous potential for severe harm as to constitute a “special aspect” and
         to avoid barring liability in the ordinary manner of an open and obvious
         danger, it is important to maintain the proper perspective, which is to
         consider the risk posed by the condition a priori, that is, before the incident
         involved in a particular case. It would, for example, be inappropriate to
         conclude in a retrospective fashion that merely because a particular

13
  Riddle v McLouth Steel Prod Corp, 440 Mich 85, 96; 485 NW2d 676 (1992); accord
Lugo, 464 Mich at 516; Bertrand, 449 Mich at 610-611.
14
  Joyce v Rubin, 249 Mich App 231, 238; 642 NW2d 360 (2002); Novotney v Burger
King Corp (On Remand), 198 Mich App 470, 474-475; 499 NW2d 379 (1993).
15
   Lugo, 464 Mich at 523-524. The objective standard recognizes that a premises owner
is not required to anticipate every harm that may arise as a result of the idiosyncratic
characteristics of each person who may venture onto his land. This standard thus
provides predictability in the law.
16
     Lugo, 464 Mich at 517; Bertrand, 449 Mich at 614.



                                               9
          plaintiff, in fact, suffered harm or even severe harm, that the condition at
          issue in a case posed a uniquely high risk of severe harm. This is because a
          plaintiff may suffer a more or less severe injury because of idiosyncratic
          reasons, such as having a particular susceptibility to injury or engaging in
          unforeseeable conduct, that are immaterial to whether an open and obvious
          danger is nevertheless unreasonably dangerous. . . . [The law] does not
          allow the imposition of liability merely because a particular open and
          obvious condition has some potential for severe harm. Obviously, the mere
          ability to imagine that a condition could result in severe harm under highly
          unlikely circumstances does not mean that such harm is reasonably
          foreseeable. However, we believe that it would be unreasonable for us to
          fail to recognize that unusual open and obvious conditions could exist that
          are unreasonably dangerous because they present an extremely high risk of
          severe harm to an invitee who fails to avoid the risk in circumstances where
          there is no sensible reason for such an inordinate risk of severe harm to be
          presented.[17]

It is worth noting Lugo’s emphasis on the narrow nature of the “special aspects”

exception to the open and obvious doctrine. Under this limited exception, liability may

be imposed only for an “unusual” open and obvious condition that is “unreasonably

dangerous” because it “present[s] an extremely high risk of severe harm to an invitee” in

circumstances where there is “no sensible reason for such an inordinate risk of severe

harm to be presented.”18 The touchstone of the duty imposed on a premises owner being

reasonableness, this narrow “special aspects” exception recognizes there could exist a

condition that presents a risk of harm that is so unreasonably high that its presence is

inexcusable, even in light of its open and obvious nature.




17
     Lugo, 464 Mich at 518 n 2.
18
     Id. at 519 n 2.



                                              10
          This Court has discussed two instances 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. In either circumstance, such dangers are

those that “give rise to a uniquely high likelihood of harm or severity of harm if the risk

is not avoided”19 and thus must be differentiated from those risks posed by ordinary

conditions or typical open and obvious hazards. Further, we have recognized that neither

a common condition nor an avoidable condition is uniquely dangerous.20 Thus, when a

plaintiff demonstrates that a special aspect exists or that there is a genuine issue of

material fact regarding whether a special aspect exists, tort recovery may be permitted if

the defendant breaches his duty of reasonable care. Again, as we explained in Lugo:

                 “[I]f the particular activity or condition creates a risk of harm only
          because the invitee does not discover the condition or realize its danger,
          then the open and obvious doctrine will cut off liability if the invitee should
          have discovered the condition and realized its danger. On the other hand, if
          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.”[21]

          With specific regard to ice and snow cases, this Court has “reject[ed] the

prominently cited notion that ice and snow hazards are obvious to all and therefore may



19
     Id. at 519.
20
  Id. at 520 (“[T]ypical open and obvious dangers (such as ordinary potholes in a parking
lot) do not give rise to these special aspects.”); Corey v Davenport College of Business
(On Remand), 251 Mich App 1, 8-9; 649 NW2d 392 (2002).
21
  Lugo, 464 Mich at 516-517, quoting Bertrand, 449 Mich at 611, citing and discussing
2 Restatement Torts, 2d, §§ 343 and 343A, pp 215-222.



                                                11
not give rise to liability” under any circumstances.22 Rather, a premises owner has a duty

to exercise reasonable care to diminish the hazards of ice and snow accumulation,

requiring that “reasonable measures be taken within a reasonable time after an

accumulation of ice and snow to diminish the hazard of injury to the invitee.”23

However, it is also well established that wintry conditions, like any other condition on the

premises, may be deemed open and obvious.24 Michigan courts thus ask whether the

individual circumstances, including the surrounding conditions, render a snow or ice

condition open and obvious such that a reasonably prudent person would foresee the

danger.25 When a condition is deemed open and obvious, a premises owner’s duties are

considerably narrowed. Thus, as with premises liability law generally, if the condition is



22
  Quinlivan v Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244, 261; 235 NW2d 732
(1975).
23
     Id.
24
   See Mann v Shusteric Enterprises, Inc, 470 Mich 320, 332-333; 683 NW2d 573
(2004); Perkoviq v Delcor Homes-Lake Shore Pointe, Ltd, 466 Mich 11; 643 NW2d 212
(2002). Quinlivan only established a duty of care for premises owners regarding snow
and ice conditions. Yet, a landowner’s duty regarding these conditions as set forth and
discussed in Quinlivan must be understood in light of this Court’s subsequent decisions
in Bertrand and Lugo. See, e.g., Mann, 470 Mich at 333 n 13; Corey, 251 Mich App at
8-9. We thus take this opportunity to clarify how well-recognized exceptions to the
traditional duty of care imposed on premises owners—namely, the open and obvious
doctrine—apply in these circumstances.
25
  See, e.g., Janson v Sajewski Funeral Home, Inc, 486 Mich 934; 782 NW2d 201 (2010);
Kenny v Kaatz Funeral Home, Inc, 472 Mich 929 (2005), rev’g 264 Mich App 99; 689
NW2d 737 (2004), for the reasons stated in Judge GRIFFIN’s dissenting opinion, 264
Mich App at 115-122; Ververis v Hartfield Lanes (On Remand), 271 Mich App 61; 718
NW2d 382 (2006);



                                            12
open and obvious, a plaintiff who is injured by the condition may avoid summary

disposition only if there are special aspects to the condition.26

         In this case, there is no dispute that the ice on which plaintiff fell was objectively

open and obvious.       Instead, the parties’ real dispute concerns whether that readily

apparent ice patch was effectively unavoidable and thus constituted a special aspect. This

Court has not specifically defined the scope of what constitutes an effectively

unavoidable condition. In Lugo, we provided the following brief illustrative discussion

of a hazard that could be considered effectively unavoidable:

                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.[27]

As with any special aspect, it is worth noting from the outset that our discussion in Lugo

of an effectively unavoidable condition was set in the context of a condition that is

inherently dangerous and thus poses a severe risk of harm.

         The Court of Appeals has applied this unavoidability exception in several notable

decisions. In Joyce v Rubin, the plaintiff fell on a snowy sidewalk when attempting to

retrieve personal belongings from a private home. The plaintiff argued that the slippery

condition was unavoidable because the homeowner had refused to provide a rug for


26
     See, e.g., Corey, 251 Mich App at 8-9.
27
     Lugo, 464 Mich at 518.



                                               13
traction and would not allow the plaintiff to enter the house through an alternative means.

The Court of Appeals disagreed, holding that the exception for effectively unavoidable

hazards did not apply because the plaintiff had a choice other than to confront the

condition:

                Though Joyce says that she had no choice but to traverse the slippery
         walkway to the front door, she presents no evidence that the condition and
         surrounding circumstances would “give rise to a uniquely high likelihood
         of harm” or that it was an unavoidable risk. First, Joyce could have simply
         removed her personal items another day or advised [the defendant] Debra
         Rubin that, if Rubin did not allow her to use the garage door, she would
         have to move another day. Further, unlike the example in Lugo, Joyce was
         not effectively trapped inside a building so that she must encounter the open
         and obvious condition in order to get out. Joyce specifically testified that,
         after she slipped twice on the sidewalk, she walked around the regular
         pathway to avoid the slippery condition. Therefore, though this is a close
         case, Joyce’s own testimony established that she could have used an
         available, alternative route to avoid the snowy sidewalk. While Debra
         Rubin’s alleged refusal to place a rug on the sidewalk or allow access
         through the garage, if true, may have been inhospitable, no reasonable juror
         could conclude that the aspects of the condition were so unavoidable that
         Joyce was effectively forced to encounter the condition.[28]

         In Corey v Davenport College of Business (On Remand), the plaintiff fell on icy

steps outside a college dormitory.       The Court of Appeals affirmed the trial court’s

dismissal of the action, ruling that the steps were not unavoidable because the plaintiff

had a choice whether to confront the condition:

                In applying Lugo and Joyce to the present case, we conclude that the
         slippery steps at issue here were not only an open and obvious condition
         but also there are no “special aspects” of the steps that create a “uniquely
         high likelihood of harm or severity of harm” if the risk is not avoided or
         serve to remove that condition from the open and obvious danger doctrine.

28
     Joyce, 249 Mich App at 242-243.



                                              14
         Plaintiff here testified that although he saw the steps and their condition and
         knew that there was an alternate route into the building that was close by,
         he nonetheless attempted to use them.[29]

         Finally, the Court in Robertson v Blue Water Oil Co30 held that a condition was

effectively unavoidable—a decision upon which plaintiff and the Court of Appeals below

rely heavily. In Robertson, the plaintiff, a truck driver, visited the defendant’s gas station

to buy fuel and windshield washer fluid in order to operate his truck during an extreme

winter storm that was occurring at the time and had covered the area with a layer of ice.

The plaintiff fell on his way into the station, and the Court of Appeals, in a split decision,

held that there was a question of fact with regard to whether the open and obvious hazard

was effectively unavoidable, distinguishing Joyce and Corey:

                The record contains no evidence that there existed any available
         alternatives. Even if there were, the scope of the inquiry is limited to “the
         objective nature of the condition of the premises at issue.” Therefore, the
         only inquiry is whether the condition was effectively unavoidable on the
         premises. Here, there was clearly no alternative, ice-free path from the
         gasoline pumps to the service station, a fact of which defendant had been
         made aware several hours previously. The ice was effectively unavoidable.

                Defendant argues that the ice was avoidable because plaintiff was
         not “effectively trapped.” Joyce v Rubin, 249 Mich App 231, 242; 642
         NW2d 360 (2002). However, reliance on Joyce is misplaced for a number
         of reasons. Although we discussed the possibility that the plaintiff in Joyce
         could have gone to the premises on a different day, our holding was based
         on the plaintiff’s own testimony that she was aware and, indeed, had made
         use, of an available alternative route. In any event, a reasonable trier of fact
         could rationally find that plaintiff was “effectively trapped” because it


29
     Corey, 251 Mich App at 6-7.
30
     Robertson v Blue Water Oil Co, 268 Mich App 588; 708 NW2d 749 (2005).



                                               15
         would have been sufficiently unsafe, given the weather conditions, to drive
         away from the premises without windshield washer fluid.[31]


                          B. DISCUSSION AND APPLICATION

         The “special aspects” exception to the open and obvious doctrine for hazards that

are effectively unavoidable is a limited exception designed to avoid application of the

open and obvious doctrine only when a person is subjected to an unreasonable risk of

harm. Unavoidability is characterized by an inability to be avoided, an inescapable

result, or the inevitability of a given outcome.32 Our discussion of unavoidability in Lugo

was tempered by the use of the word “effectively,” thus providing that a hazard must be

unavoidable or inescapable in effect or for all practical purposes. Accordingly, the

31
  Id. at 593-594 (citations omitted). The Robertson majority further commented on the
fact that the plaintiff was a business invitee:

                Finally, and more significantly, plaintiff was a paying customer who
         was on defendant’s premises for defendant’s commercial purposes, and
         thus he was an invitee of defendant. As our Supreme Court noted, “invitee
         status necessarily turns on the existence of an ‘invitation.’” Defendant’s
         contention that plaintiff should have gone elsewhere is simply inconsistent
         with defendant’s purpose in operating its gas station. The logical
         consequence of defendant’s argument would be the irrational conclusion
         that a business owner who invites customers onto its premises would never
         have any liability to those customers for hazardous conditions as long as the
         customers even technically had the option of declining the invitation. [Id.
         at 594 (citations omitted).]

The decision in Robertson was subject to a strong dissent, which would have held that the
open and obvious doctrine applied because the conditions were not “effectively
unavoidable.” See Robertson, 268 Mich App at 598-599 (KELLY, J., dissenting). For
reasons stated herein, we reject the Robertson majority’s analysis of the “effectively
unavoidable” doctrine.
32
     See, e.g., Random House Webster’s College Dictionary (1997).



                                              16
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.

           Plaintiff argues here that the ice that caused her harm was effectively unavoidable

and, thus, constituted a special aspect, because she had a contractual right to enter Fitness

Xpress as a paid member.            The lower courts similarly held that the contractual

relationship constituted a business interest, thereby qualifying plaintiff as an invitee, and

thus “it would be disingenuous to relieve defendants of their duty of care.”33

Accordingly, because no alternative route existed, reasoned the Court of Appeals, “the

icy sidewalk was effectively unavoidable as it related to the use of the premises.”34

           We reject these conclusions permitting recovery for a typical hazard confronted

under ordinary circumstances as inconsistent with the law of this state regarding the duty

owed to invitees and premises owners’ resultant liability for injuries sustained by

invitees. The law of premises liability in Michigan provides that the duty owed to an

invitee applies to any business invitee, regardless of whether a preexisting contractual or

other relationship exists, and thus the open and obvious rules similarly apply with equal

force to those invitees. This Court has stated that the crucial question when determining




33
     Hoffner, 290 Mich App at 464.
34
     Id.



                                               17
invitee status is the commercial nature of the relationship between the premises owner

and the other party:

               [T]he imposition of additional expense and effort by the landowner,
       requiring the landowner to inspect the premises and make them safe for
       visitors, must be directly tied to the owner’s commercial business interests.
       It is the owner’s desire to foster a commercial advantage by inviting
       persons to visit the premises that justifies imposition of a higher duty. In
       short, we conclude that the prospect of pecuniary gain is a sort of quid pro
       quo for the higher duty of care owed to invitees. Thus, we hold that the
       owner’s reason for inviting persons onto the premises is the primary
       consideration when determining the visitor’s status: In order to establish
       invitee status, a plaintiff must show that the premises were held open for a
       commercial purpose.[35]

       Perhaps what is most troubling regarding the theory of liability advanced by

plaintiff is that it would result, if upheld, in an expansion of liability by imposing a new,

greater duty than that already owed to invitees. By providing that a simple business

interest is sufficient to constitute an unquestionable necessity to enter a business, thereby

making any intermediate hazard “unavoidable,” plaintiff’s proposed rule represents an

unwarranted expansion of liability. It would, in effect, create a new subclass of invitees

consisting of those who have a business or contractual relationship. Such a rule would

transform the very limited exception for dangerous, effectively unavoidable conditions

into a broad exception covering nearly all conditions existing on premises where business

is conducted. Such a rule would completely redefine the duty owed to invitees, allowing

the exception to swallow the rule.      This proposed rule appears to be an erroneous


35
  Stitt, 462 Mich at 604; see also Sink v Grand Trunk W R Co, 227 Mich 21; 198 NW
238 (1924).



                                             18
extrapolation of the basic principle that invitees are owed a greater duty of care than

licensees or trespassers.    Simply put, 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.36 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.

         The unreasonableness of a hazard remains the touchstone for permitting recovery

under the “special aspects” exception to the open and obvious doctrine. For example, in

Perkoviq v Delcor Homes-Lake Shore Pointe Ltd,37 the plaintiff’s employment in the

construction business necessitated that he work around a slippery condition while

preparing to paint a partially constructed home. Unfortunately, the plaintiff slipped on

ice or frost; he pursued a premises liability claim against the general contractor. This


36
   At oral argument, plaintiff engaged in an effort to limit this invitee subclass one step
further to individuals engaged in activities designed to improve health. Plaintiff has cited
no caselaw in support, and for good reason: there is even less support for such an
idiosyncratic exception to the open and obvious doctrine than there is a lack of support
for a general “business invitee” exception or “contractual right of use” exception to the
open and obvious doctrine. We can discern no principled reason to begin subdividing
premises liability law on the basis of how worthy a purpose we may subjectively believe
an invitee had to frequent a business.
37
     Perkoviq, 466 Mich at 11.



                                            19
Court unanimously concluded that the open and obvious doctrine barred recovery and

that no special aspects existed with regard to a typical slippery condition occasioned by

the presence of snow and ice. Relevant here, it 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, such as membership in a fitness club. Perkoviq illustrates that an overbroad

understanding of effective unavoidability cannot undermine the historical parameters of

the limited duty owed when the condition is open and obvious.

         Thus, to the extent that Michigan courts in Robertson or otherwise alluded to a

new breed of business invitee protection, we disavow that reasoning as inconsistent with

traditional principles of premises liability law. Instead, when confronted with an issue

concerning an open and obvious hazard, Michigan courts should hew closely to the

principles previously discussed.    It bears repeating that exceptions to the open and

obvious doctrine are narrow and designed to permit liability for such dangers only in

limited, extreme situations.38 Thus, an “unreasonably dangerous” hazard must be just

that—not just a dangerous hazard, but one that is unreasonably so. And it must be more

than theoretically or retrospectively dangerous, because even the most unassuming

situation can often be dangerous under the wrong set of circumstances.39 An “effectively

38
  See Lugo, 464 Mich at 519 (“[O]nly 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.”).
39
     See id. at 518 n 2.



                                            20
unavoidable” hazard must truly be, for all practical purposes, one that a person is required

to confront under the circumstances. A general interest in using, or even a contractual

right to use, a business’s services simply does not equate with a compulsion to confront a

hazard and does not rise to the level of a “special aspect” characterized by its

unreasonable risk of harm.

       Applying those principles here, we conclude that this case calls for little more than

a simple application of the open and obvious doctrine to bar plaintiff’s claim because

plaintiff was injured as a result of an avoidable open and obvious danger and has

provided no evidence of a special aspect to the condition that would justify the imposition

of liability. Plaintiff observed the ice at the entrance to the fitness center,40 which she

desired to enter. Plaintiff freely admits that she knew that the ice posed a danger, but that

she saw the danger as surmountable and the risk apparently worth assuming in order to

take part in a recreational activity. Plaintiff was not forced to confront the risk, as even

she admits; she was not “trapped” in the building or compelled by extenuating

circumstances with no choice but to traverse a previously unknown risk. In other words,

the danger was not unavoidable, or even effectively so.41 Moreover, plaintiff presented

no evidence that the risk of harm associated with the ice patch was so unreasonably high

40
   While generally the standard applied to determine whether a condition is open and
obvious is that of a reasonably prudent person, an objective standard, it is noteworthy in
this case that plaintiff here actually (subjectively) recognized the hazard.
41
  It should not be difficult to see, particularly on the facts of a case such as this, how a
conclusion to the contrary would all but swallow the rule regarding open and obvious
hazards.



                                             21
that its presence was inexcusable, even in light of its open and obvious nature. Again,

landowners are not charged with a duty of ensuring absolutely the safety of each person

who comes onto their land, even when that person is an invitee. Because there is no

dispute that the ice constituted an open and obvious danger, and because plaintiff has not

proved that the ice patch had any special aspects, plaintiff is precluded from recovering in

tort as a matter of law.

                           IV. RESPONSE TO THE DISSENTS

         The dissents take two separate approaches, but ultimately arrive at the same

erroneous conclusion.      Justice HATHAWAY’s dissent ignores this Court’s modern

premises liability law entirely, concluding that mere anticipation of a harm is sufficient to

impose liability on a premises owner.       Justice CAVANAGH’s dissent recognizes this

Court’s applicable jurisprudence regarding open and obvious dangers, but ultimately

expresses his disagreement with that jurisprudence. We will address these approaches in

turn.

         We agree with Justice HATHAWAY’s general observation that anticipation of a

perceived harm is material to the imposition of a duty of care given that, of course, the

law does not impose liability for unanticipated or unforeseeable harms.42 But contrary to

Justice HATHAWAY’s position, it is not the only consideration relevant to the question




42
     See generally Brown v Brown, 478 Mich 545; 739 NW2d 313 (2007).



                                             22
whether a duty of care exists.43 To support her view that mere anticipation of an injury

creates, per se, a duty of care and a jury-submissible question of fact regarding liability

for an open and obvious danger would be to render the open and obvious doctrine a legal

nullity because harm can be anticipated from any number of common conditions. Indeed,

when could it ever be said that harm could not be reasonably anticipated from an open

and obvious condition?       Ordinary open and obvious conditions are categorically

conditions from which harm may be anticipated—that is the characteristic that gives them

their special designation in the law that has historically curtailed liability for injuries

resulting from them.44 The small patch of ice at issue here is of the same character as

those open and obvious hazards—like an ordinary pothole or flight of stairs—that this

Court has repeatedly stated do not give rise to liability for a premises owner.

       Justice HATHAWAY’s dissent further argues, on the basis of its erroneous belief

that this Court’s decision in Quinlivan v Great Atlantic and Pacific Tea Co, Inc controls




43
  See Lugo, 464 Mich at 525 (“Simply put, there must be something out of the ordinary,
in other words, special, about a particular open and obvious danger in order for a
premises possessor to be expected to anticipate harm from that condition. Indeed, it
seems obvious to us that if an open and obvious condition lacks some type of special
aspect regarding the likelihood or severity of harm that it presents, it is not unreasonably
dangerous. We cannot imagine an open and obvious condition that is unreasonably
dangerous, but lacks special aspects making it so.”).
44
  See Williams, 429 Mich at 500 (“The duty a possessor of land owes his invitees is not
absolute, however. It does not extend to conditions from which an unreasonable risk
cannot be anticipated or to dangers so obvious and apparent that an invitee may be
expected to discover them himself.”).



                                            23
the outcome of this case, that this opinion ignores precedent.45           To the contrary,

Quinlivan merely rejected a per se rule barring liability for snow and ice conditions, and

the decision in this case does not affect that holding. The per se rule rejected by

Quinlivan is markedly different from that of the open and obvious doctrine, which, while

it restricts the duty owed for such hazards, nevertheless permits liability in certain limited

circumstances.     These limited circumstances have been discussed and delineated in

decisions of this Court subsequent to Quinlivan. While Justice HATHAWAY apparently

believes that the analysis in cases involving the open and obvious doctrine begins and

ends with Quinlivan, this opinion has taken pains to set forth the cases and principles that

have marked this Court’s interpretation of the open and obvious doctrine and premises

liability law before and in the nearly 40 years since Quinlivan.             Quinlivan only

established a duty of care for premises owners regarding winter conditions; our opinion

in this case clarifies how well-recognized exceptions to the traditional duty of care

imposed on premises owners apply in these circumstances.               Yet in favor of its

“anticipation” theory of liability, Justice HATHAWAY’s dissent ignores all this law,

including this Court’s “special aspects” test, which is the test that governs whether

liability may arise from an open and obvious danger and has uncontroversially been so

for quite some time.




45
     Quinlivan, 395 Mich 244.



                                             24
         Justice HATHAWAY’s approach also fails to appreciate that whether a duty exists in

a tort action is generally a question of law to be decided by the court,46 and when a court

determines that a duty was not owed, no jury-submissible question exists. Because the

issue of the openness and obviousness of a hazard is an “integral part” of the question of

duty,47 establishing whether a duty exists in light of the open and obvious nature of a

hazard is an issue within the province of the court. As discussed previously, it is only

when an open and obvious hazard is in some manner unreasonable that there is a

question of fact for the jury.48 And as this opinion explains, unreasonableness is the

touchstone of the “special aspects” test, which guides the analysis in this opinion. Again,

though, because Justice HATHAWAY’s dissent ignores recent caselaw concerning the open

and obvious doctrine and the “special aspects” analysis entirely, it erroneously concludes

that there is a question of fact for the jury to decide in this case, even though the open and

obvious doctrine cuts off liability as a matter of law. To the extent that her dissent

abandons the controlling premises liability framework and wishes that a different analysis

46
   Maiden, 461 Mich at 131; Murdock v Higgins, 454 Mich 46, 53; 559 NW2d 639
(1997)
47
     Lugo, 464 Mich at 516.
48
   See, e.g., id. at 517-518 (“[W]ith regard to open and obvious dangers, the 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, i.e., whether the ‘special aspect’ of the condition should prevail in imposing
liability upon the defendant or the openness and obviousness of the condition should
prevail in barring liability.”).




                                             25
controlled, we believe that it is Justice HATHAWAY’s dissent, and not this opinion, that

fails to consider Michigan law as set forth in our precedents.

         Justice CAVANAGH’s dissent takes issue with this opinion’s application of the open

and obvious doctrine in Michigan or, more specifically, it takes issue with how this

doctrine has developed over time, culminating in this decision.              While Justice

CAVANAGH is entitled to disagree with the development of this area of the law, we

believe that it offers necessary clarity and allows for the efficient resolution of this type

of case by setting forth an objective and workable framework.

         Contrary to Justice CAVANAGH’s charge, we respectfully disagree that this opinion

renders Michigan law illogical or unworkable. Justice CAVANAGH’s dissent characterizes

this decision as effectuating a sea-change because, he alleges, now an invitor’s duty only

arises at the moment an individual is compelled to confront an unavoidable hazard, and

thus the law “no longer requires the invitor to prospectively anticipate whether harm will

occur, despite the hazard’s open-and-obvious nature.”49 With all due respect, we believe

that Justice CAVANAGH’s dissent misapprehends our holding.                The “effectively

unavoidable” component of the special aspects exception does not define a premises

owner’s duty as a whole. Instead, it is but one component of that doctrine that serves as

one exception to the general rule precluding liability for open and obvious dangers.50

49
     Post at 7-8 (CAVANAGH, J., dissenting).
50
  Our opinion in this case focuses in large part on effective unavoidability only because
plaintiff argues that it was the unavoidable nature of the hazard in this case that created a
special aspect to the open and obvious condition.



                                               26
With this opinion, we do not broadly erase invitors’ duties or limit those duties to

effectively unavoidable conditions, as Justice CAVANAGH’s dissent alleges. Instead,

consistent with our caselaw, we simply apply the standing rule that liability may only be

imposed on invitors for an open and obvious condition when there are special aspects to

the condition.51

       Both dissents also argue that this opinion is inconsistent with the Second

Restatement of Torts. We begin with the general observation that this Court has never

adopted wholesale the Restatement approach.          While this Court has looked to the

Restatement for guidance, it is our caselaw, as developed through the years, that provides

the rule of law for this State.52 Nevertheless, it is for the precise reason that our caselaw,




51
   We decline to respond to the myriad hypothetical situations that Justice CAVANAGH
posits in which the rules articulated in this opinion may have some application in the
future. Instead, we believe that we have clearly articulated the governing principles and
applicable rules to guide future courts that will have to apply these principles and rules in
what are, in some cases, admittedly difficult factual scenarios. As with any other
principle or rule of the common law articulated in the previous 175 years of our State’s
history, to the extent that the governing principles and applicable rules set forth in this
case must be further refined or applied in future cases, we will confront those cases as
they arise. In particular, however, because it is relevant to some of Justice CAVANAGH’s
hypothetical situations, we reiterate that issues arising in application of the open and
obvious doctrine are to be decided using an objective standard—as our rejection of
plaintiff’s position and application of the standard in this case illustrates. See also Lugo,
464 Mich at 518, 523-524.
52
   No approach is perfect, and Justice CAVANAGH himself has noted that the Restatement
itself “does not explicitly lay out the standard of care,” Lugo, 464 Mich at 531
(CAVANAGH, J., concurring), and that the Restatement’s approach “can be somewhat
difficult to apply.” Id. at 533.



                                             27
including Lugo and Bertrand v Alan Ford, Inc,53 has relied on the principles of the

Second Restatement of Torts, which this opinion then incorporates and applies, that

ultimately belies the dissents’ argument that our opinion is inconsistent with the Second

Restatement. Discussing the Second Restatement, this Court has summarized the guiding

principles as follows:

                 When §§ 343 and 343A are read together, the rule generated is that
         if the particular activity or condition creates a risk of harm only because the
         invitee does not discover the condition or realize its danger, then the open
         and obvious doctrine will cut off liability if the invitee should have
         discovered the condition and realized its danger. On the other hand, if 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. The issue then
         becomes the standard of care and is for the jury to decide.54

This standard—in particular, the focus on the imposition of liability only for

unreasonable dangers—is perfectly consistent with our discussion and application of the

special aspects test.55 We have a difficult time reading the Second Restatement as

standing for the extraordinarily broad imposition of liability and legal propositions

posited by the dissents.

         In final response to the dissents, we believe it is again worth noting the key,

undisputed facts of this case on which the dissents would impose potential liability on the
53
     Bertrand, 449 Mich 606.
54
  Id. at 611, citing and discussing 2 Restatement Torts, 2d, §§ 343 and 343A, pp 215-
222.
55
  The Court’s opinion in Lugo, responding to Justice CAVANAGH’s concurrence in that
case raising the same basic challenge, reasoned similarly. See Lugo, 464 Mich at 525-
526.



                                               28
premises owners. The facts of this case occurred in Michigan’s Upper Peninsula, in the

dead of winter. On the morning of the accident, the premises owners had cleared and

salted the sidewalk before the opening of business. However, by the time plaintiff

arrived at the building later that morning, a small ice patch had re-formed over a portion

of the sidewalk. We know from the testimony of plaintiff herself that this ice patch was

not unreasonable or unusual in some manner because she believed that she could

overcome it and affirmatively attempted to do so. There are no allegations in this case of

anything other than what every Michigan citizen is compelled to confront countless times

every winter.

       While the dissents would like to characterize this opinion as closing the

courthouse door on injured persons, we are only preserving the balance our law has

struck with regard to liability for known, common, ordinary dangers. Contrary to the

dissents’ arguments, the rationale for imposing liability here exists neither in the world of

the Second Restatement nor in Michigan law.          Instead, the dissents posit a regime

whereby premises owners would become virtual insurers to those who enter their

property.   Were it to be adopted, the dissents’ position that they would leave the

determination regarding the scope of the duty owed for an open and obvious danger as a

question for the jury would significantly reduce predictability in the law. The process by

which the dissents would resolve by jury trial every claim involving an open and obvious

danger would essentially render it impossible for any landowner to anticipate what harms




                                             29
must be remedied in advance in order to avoid liability.56 The goal of the law is not to

create uncertainty whereby only a jury determines, after the fact, the scope of a

defendant’s duty. Rather, the goal of the law is to establish clear standards that allow

citizens to ascertain the extent of their duties, liabilities, and responsibilities before an

accident occurs. The open and obvious doctrine was created precisely to preclude suits in

which the harm was obvious and should have been avoided.

                                    V. CONCLUSION

       Our decision here reaffirms this Court’s interpretation of fundamental principles of

the law of premises liability. These rules balance the competing interests of landowners

and those who enter their land, ensuring that while no person should be forced to endure

unreasonable risks, the simple fact exists that the law compels individuals to accept

personal responsibility for their well-being by avoiding apparent hazards, including those

precipitated by Michigan winters. The law does not provide recovery for every harm.

The “special aspects” exception permits recovery only in circumstances that present a

uniquely high likelihood of harm notwithstanding a hazard’s obvious nature.

       The ice patch on the sidewalk that plaintiff chose to confront was open and

obvious, and plaintiff has not provided evidence of special aspects of the condition to

justify imposing liability on defendants despite the open and obvious nature of the

56
   The dissents would thus require a landowner either to keep his property in perfect
condition at all times and for all people to ensure against any injury, or subject himself to
protracted and expensive litigation as a result of injury arising from any common
condition. We hardly believe that the dissents’ proposed Morton’s Fork represents a
practical and workable framework, much less a framework compelled by our law.



                                             30
danger. The judgment of the Court of Appeals is reversed in part, and this case is

remanded to the Gogebic Circuit Court for entry of summary disposition in favor of the

Lanctoes.



                                                    Robert P. Young, Jr.
                                                    Stephen J. Markman
                                                    Mary Beth Kelly
                                                    Brian K. Zahra




                                         31
                             STATE OF MICHIGAN

                                   SUPREME COURT


CHARLOTTE HOFFNER,

             Plaintiff-Appellee,
             Cross-Appellant,
and

BLUE CROSS BLUE SHIELD OF
MICHIGAN,

             Plaintiff-Appellee,

v                                                         No. 142267

RICHARD LANCTOE and LORI
LANCTOE,

             Defendants-Appellants,
             Cross-Appellees,
and

PAMELA MACK, TIFFANI K. AHO, and
MOUSIE, INC., d/b/a FITNESS XPRESS,

             Defendants.


CAVANAGH, J. (dissenting).
      While I agree with the general principles expressed in Justice HATHAWAY’s

dissent, I write separately to elaborate on my disagreement with the majority. Today’s

majority opinion builds on the so-called “special aspects” doctrine by holding that

“effectively unavoidable” means that the injured person must have been “compelled by

extenuating circumstances with no choice but to traverse a previously unknown risk.”

Ante at 21. Because the open-and-obvious doctrine has been interpreted as establishing a
no-duty rule,1 and because the majority erroneously decided in Lugo v Ameritech Corp,

Inc, 464 Mich 512; 629 NW2d 384 (2001), that the special-aspects doctrine defines the

sole exception to the open-and-obvious doctrine, today’s majority opinion means that

only when those unexplained extenuating circumstances arise and force a person to

confront an open-and-obvious hazard does the premises possessor suddenly acquire a

duty to address the dangerous condition.         Thus, the majority further narrows the

exceptions to the open-and-obvious doctrine to the very rarest of situations, without

elaborating on when those extenuating circumstances may arise.            This ill-wrought

departure from our precedent immunizes premises possessors from nearly all liability

arising out of their breaches of a long-recognized duty. Because the majority’s relentless

redefining and narrowing of the exceptions to the open-and-obvious doctrine will

inevitably work to the harm of those who choose to reside in or visit Michigan, I

respectfully dissent.

I. THE MAJORITY OPINION IS INCONSISTENT WITH OUR PRECEDENTS AND
                   THE RESTATEMENT OF TORTS

       I agree with Justice HATHAWAY that the majority opinion represents yet another

unwarranted departure from our longstanding and well-reasoned precedents, which have

historically relied on the Restatement of the Law of Torts. See, e.g., Riddle v McLouth

Steel Prod Corp, 440 Mich 85, 92-94; 485 NW2d 676 (1992); Ackerberg v Muskegon

Osteopathic Hosp, 366 Mich 596, 599-600; 115 NW2d 290 (1962). Based on our


1
 As explained in footnote 2 of this opinion, I question whether all questions related to the
open-and-obvious doctrine should be characterized as relating to the duty of the premises
possessor rather than to the standard of care.



                                             2
traditional adherence to the Restatement, it is well established in our jurisprudence that an

invitor owes a legal duty “‘to exercise reasonable care to protect invitees from an

unreasonable risk of harm caused by a dangerous condition of the land’ that the

landowner knows or should know the invitees will not discover, realize, or protect

themselves against.” Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185

(1995), quoting Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 499; 418

NW2d 381 (1988), citing 2 Restatement Torts, 2d, § 343, pp 215-216. The invitor’s duty

includes the “duty to exercise reasonable care to diminish the hazards of ice and snow

accumulation” by taking “reasonable measures . . . within a reasonable time after an

accumulation of ice and snow to diminish the hazard of injury to the invitee.” Quinlivan

v Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244, 261; 235 NW2d 732 (1975). The

sound rationale underlying this rule is that liability for injuries caused by failures to

maintain property in a safe condition should rest on the person in control of the property

because he or she is in the best position to prevent the injury. Nezworski v Mazanec, 301

Mich 43, 56; 2 NW2d 912 (1942).

       The open-and-obvious doctrine, however, balances the invitor’s duty to diminish

the hazard of injury with the need for invitees to exercise a reasonable degree of personal

responsibility for their own safety. Thus, it has been said that an invitor generally “‘owes

no duty to protect or warn the invitee’” of dangers that are “‘known to the invitee or are

so obvious that the invitee might reasonably be expected to discover them . . . .’” Mann v




                                             3
Shusteric Enterprises, Inc, 470 Mich 320, 339; 683 NW2d 573 (2004) (CAVANAGH, J.,

concurring in part and dissenting in part), quoting Riddle, 440 Mich at 96.2

        In turn, however, the Restatement approach recognizes exceptions to the open-

and-obvious doctrine. Particularly relevant to this case is 2 Restatement Torts, 2d, §

343A(1), p 218, which provides that a possessor of land is not relieved of the duty to

protect or warn of known or obvious dangers if “the possessor should anticipate the harm

despite such knowledge or obviousness.” The comments on § 343A(1) state, in pertinent

part:

               There are, however, cases in which the possessor of land can and
        should anticipate that the dangerous condition will cause physical harm to
        the invitee notwithstanding its known or obvious danger. In such cases the
        possessor is not relieved of the duty of reasonable care which he owes to
        the invitee for his protection. This duty may require him to warn the
        invitee, or to take other reasonable steps to protect him, against the known
2
  I will accept, but only for purposes of this dissent, that questions related to the open-
and-obvious doctrine relate to the premises possessor’s duty. As my previous positions
indicate, however, questions about the openness and obviousness of a hazard might be
better designated as related to the standard of care. See Lugo, 464 Mich at 531-541
(CAVANAGH, J., concurring); Riddle, 440 Mich at 118-122 (LEVIN, J., dissenting).

       I will not attempt to resolve this issue here because what matters is that Michigan
courts currently consider the open-and-obvious doctrine to be solely a question of duty.
See Lugo, 464 Mich at 516 (TAYLOR, J.). This case, however, shows the danger of
classifying all questions related to the open-and-obvious doctrine as questions of duty
because doing so removes questions of fact from the jury’s consideration and encourages
courts to grant summary disposition to defendants when there may be genuine issues of
material fact concerning whether a danger is open and obvious and, if so, whether the
premises possessor still had a duty to address the hazard because the premises possessor
should have anticipated the harm. Indeed, the majority’s entire special-aspects test was
created to provide a framework for courts deciding defendants’ motions for summary
disposition. See id. at 524-525 (“[W]e believe that this ‘special aspects’ inquiry serves to
concretely focus trial courts on the showing that must be made in evaluating motions for
summary disposition in this context.”).



                                             4
       or obvious condition or activity, if the possessor has reason to expect that
       the invitee will nevertheless suffer physical harm. [Id. at § 343A(1)
       comment f, p 220 (emphasis added).]

       In Lugo, however, the majority created its special-aspects test—relying solely on

the special aspects of a condition that may make it unreasonably dangerous—and began

the systematic rewriting of Michigan premises-liability law in a way that narrows the

exceptions to the open-and-obvious doctrine. Lugo, 464 Mich at 518-520.3 As I noted in

Lugo, the exceptions to the open-and-obvious doctrine cannot “be simply summarized in

terms of whether ‘special aspects’ of a condition make the risk of harm unreasonably

dangerous.” Id. at 527 (CAVANAGH, J., concurring). Rather, while the “special aspects

of a particular condition may be relevant to a determination whether liability should be

imposed . . . , consideration of special aspects should be made in the context of the

Restatement test.”    Id. at 542; see, also, Mann, 470 Mich at 336 (CAVANAGH, J.,

concurring in part and dissenting in part) (“I remain committed to the view that the

majority’s singular [special aspects] approach is wrong and inconsistent with Michigan’s

premises liability jurisprudence.”).


3
 The Lugo majority erroneously seized on Bertrand’s use of the term “special aspects” to
describe some aspect of a stairway that made it unreasonably dangerous, despite the
hazard being open and obvious. It was never my intention that this simple term would be
used in a later case to form the basis for an increasingly narrow test designed to apply to
all exceptions to the open-and-obvious doctrine. As I stated in Lugo:

               [W]hile “special aspects” may be considered in determining whether
       liability should be suspended, the existence or absence of special aspects in
       a particular case will not necessarily be outcome determinative. Instead,
       pursuant to the Restatement, courts must focus on whether an unreasonable
       danger is presented, whether harm should be anticipated, and whether the
       duty of care has been breached. [Lugo, 464 Mich at 543 (CAVANAGH, J.,
       concurring).]



                                            5
       In discussing whether a special aspect makes a condition unreasonably dangerous,

the Lugo majority gave the example of a puddle of water covering the floor in front of the

only available exit to a building. Lugo, 464 Mich at 518.4 Because a customer wishing

to leave the store must cross the water, the majority noted that the condition was

“effectively unavoidable.” Id.5

       In the years since Lugo, there has been considerable debate about what would

make a condition effectively unavoidable, and some jurists have interpreted “effectively

unavoidable” as being synonymous with “effectively trapped.” See Joyce v Rubin, 249

Mich App 231, 242; 642 NW2d 360 (2002); Robertson v Blue Water Oil Co, 268 Mich

App 588, 594; 708 NW2d 749 (2005); Preston v Loving Care Flowers, Inc, unpublished

opinion per curiam of the Court of Appeals, issued December 13, 2011 (Docket No.

301241), p 2. Indeed, in this case the Lanctoes argued that plaintiff was not effectively

trapped because she was trying to enter—not exit—the fitness club.



4
  The majority opinion repeats that “neither a common condition nor an avoidable
condition is uniquely dangerous.” Ante at 11. This seems inconsistent with Lugo’s
example of a puddle of water blocking the only exit to a building as being effectively
unavoidable. Puddles of water in front of exits are common in Michigan as patrons track
snow in when entering a building. It seems that if a mere puddle of water can be
uniquely dangerous, then an icy patch of sidewalk is doubly so. Yet both are common
conditions.
5
 The majority also provided the example of “an unguarded thirty foot deep pit in the
middle of a parking lot” as an open-and-obvious hazard that was unreasonably dangerous
because it bore the “special aspect” of imposing “an unreasonably high risk of severe
harm.” Lugo, 464 Mich at 518. The instant case relates only to Lugo’s “effectively
unavoidable” illustration because, in order to enter the health club, plaintiff had to cross a
patch of visible snow and ice on the sidewalk adjacent to the only entrance to the facility.



                                              6
       Today, the majority continues to dismantle the Restatement approach by holding

that “effectively unavoidable” means that the injured person must have been “compelled

by extenuating circumstances with no choice but to traverse a previously unknown risk.”

Ante at 21. In other words, “effectively unavoidable” means absolutely unavoidable: the

individual must have no alternative but to hazard the danger. Thus, there is essentially

nothing left of the premises possessor’s historical duty to clear ice and snow or the

exceptions to the open-and-obvious doctrine because it will be incredibly rare that an

injured person will be able to show that they were “absolutely compelled” to encounter

an open-and-obvious danger. I find today’s holding to be repugnant to the traditional

jurisprudence of this Court and a grave disservice to Michigan’s citizens and visitors.

    II. THE MAJORITY OPINION CREATES AN ILLOGICAL AND UNWORKABLE
                               STANDARD

       While the majority seems to be attempting to settle the confusion about the

meaning of “effectively unavoidable,” the new definition merely continues the narrowing

of the traditional exceptions to the open-and-obvious doctrine by creating an illogical and

unworkable standard. This is so because, from this point forward, a premises possessor’s

duty to warn of or protect against an open-and-obvious hazard will arise only at the

moment an individual is “compelled by extenuating circumstances with no choice but to

traverse a previously unknown risk.” Ante at 21.6 In other words, an invitor’s duty no


6
  As discussed in this opinion, the open-and-obvious doctrine has been interpreted as a
no-duty rule. Thus, in the context of visible hazards blocking the only available ingress
or egress, the new rule could be stated as follows: The invitor owes no duty to warn of or
protect against an open-and-obvious hazard unless the invitee is compelled by
extenuating circumstances with no choice but to traverse a previously unknown risk.



                                             7
longer requires the invitor to prospectively anticipate whether harm will occur, despite

the hazard’s open-and-obvious nature. See Restatement, § 343A(1), p 218. Indeed, the

duty will not even arise until some extenuating circumstance—like a fire inside a

building necessitating evacuation—forces individuals to choose between the harms of

traversing versus not traversing the risk.7 Such a rule is nonsensical because it imposes

the duty on premises possessors when it will generally be too late to do anything to

address the hazard. Essentially, at the moment the building catches on fire the premises

possessor would acquire the duty to run outside and salt the visibly slippery sidewalk he

or she chose to ignore earlier that morning.

       In contrast to the majority’s position, the Restatement approach is far more

workable and logical. It requires the premises possessor to take steps to address the

hazard when the premises possessor should anticipate that individuals will be exposed to

harm from the risk, despite its open-and-obvious nature.        A patch of icy sidewalk

blocking the only entrance to a fitness club is a perfect example.         If the premises

possessor expects patrons to enter the business he or she holds open to the public, the

premises possessor should expect that they will confront the hazard despite its open-and-

obvious nature.



7
  The majority’s new rule thus shifts the focus from the nature of the condition to the
choice made by the injured person who was absolutely compelled to confront the hazard.
This seems inconsistent with Lugo’s statement that courts are to remain focused on the
nature of the hazard. Lugo, 464 Mich at 523-524 (“Accordingly, it is important for courts
in deciding summary disposition motions by premises possessors in ‘open and obvious’
cases to focus on the objective nature of the condition of the premises at issue, not on the
subjective degree of care used by the plaintiff.”).



                                               8
        Indeed, the Restatement provides an example in which a person is injured after

falling on a visibly “slippery waxed stairway” that provides the sole access point to the

person’s office and “[h]er only alternative to taking the risk was to forgo her

employment.” Restatement, § 343A(1), illustration 5, p 221. In that illustration, the

premises possessor did not escape liability merely because the hazard was open and

obvious. Thus, the Restatement approach requires the premises possessor to take steps to

address the hazard at a time when he or she can prevent the harm—not after some

unforeseen and unforeseeable extenuating circumstances arise. Unlike the majority’s

new definition of “effectively unavoidable,” the Restatement approach is prospective—

requiring the premises possessor to reasonably anticipate probable harms—not

retrospective and arising after the fact.

        Unlike the special-aspects test, the Restatement approach serves well the citizens

of Michigan who live in a climate that is, as the majority tutors, “prone to winter.” Ante

at 2.   It is precisely because Michigan experiences wintry conditions that premises

possessors have a duty to take reasonable measures within a reasonable time to address

the hazards of ice and snow. Indeed, such a rule would make no sense in a climate that

does not experience winter. The premises possessor—not the person who must go about

his or her daily business during the winter—is in the best position to remedy hazardous

conditions on the premises. Nezworski, 301 Mich at 56.8

8
  See, also, Restatement, § 343A(2), comment g, p 221 (noting that “the fact that
premises have been held open to the visitor, and that he has been invited to use them, is
always a factor to be considered, as offering some assurance to the invitee that the place
has been prepared for his reception, and that reasonable care has been used to make it
safe”).



                                            9
    III. THE MAJORITY FAILS TO ADEQUATELY EXPLAIN ITS NEW STANDARD

        Through a smattering of iterations, the majority instructs that the invitee must be

“compelled by extenuating circumstances with no choice but to traverse a previously

unknown risk,” ante at 21, “inescapably required to confront under the circumstances,”

“unavoidably compelled,” ante at 3, “required or compelled to confront a dangerous

hazard,” ante at 17, and “forced to confront the risk,” ante at 21, but fails to provide

guidance about what types of circumstances would suffice. Specifically, the majority

fails to state whether these extenuating circumstances must arise externally to and

independent of the invitee or whether the extenuating circumstances of the particular

individual suffice. Further, the majority opinion offers no guidance about whether it

matters if an invitee is entering or exiting a property.

        Presumably, a fire or a rampant gunman in a building would constitute extenuating

circumstances sufficient to force the fleeing occupants to hazard a known or obvious risk.

In that case, because they are exiting the building, they would be trapped by a patch of

ice blocking the only exit.9 As I noted, however, it makes no sense to say that the

premises possessor’s duty arises when the shots ring out or the building bursts into

flames, and I do not see how a premises possessor could ever anticipate such extenuating

circumstances. While the majority opinion reiterates that “issues arising in application of


9
  Although at least one iteration of the majority’s new rule would also seem to require
that the risk be “previously unknown.” Ante at 21. Whether the risk was actually known
or should have been known because it was open and obvious, the majority opinion makes
it clear that effective unavoidability means that the injured person had no choice but to
hazard the risk. If one has no choice but to cross the hazard, I cannot see why it matters
whether he or she previously knew of the risk or not.



                                              10
the open and obvious doctrine are to be decided using an objective standard . . . ,” ante at

27 n 51, this statement fails to provide guidance on the extenuating circumstances that

may be subjectively particular to an individual, yet would objectively compel a

reasonable person under the same circumstances to confront an open-and-obvious hazard.

For example, consider the situation of a person suffering a severe medical emergency

who is confronted with an icy patch blocking the sole entrance to the hospital emergency

room or an individual who must suddenly enter or exit a building to come to the aid of a

family member suffering a medical emergency. What about a probationer who must

hazard the icy patch blocking the sole entrance to a drug-testing center in order to avoid

violating his or her probation? In that case the probationer must weigh the risk of

crossing against the risk of violating probation and going to jail. In each of these

examples, the extenuating circumstance is specific to the individual—and therefore

subjective—yet a reasonable person in that same situation would feel compelled to

traverse the known or obvious hazard.

       While I could provide endless examples of objective and subjective extenuating

circumstances that would force a person to choose between braving or avoiding a hazard,

my point is that the majority’s new definition of “effectively unavoidable” only confuses

the matter more and pushes our law further from the Restatement and our own precedent.

It also shifts the focus from the objective nature of the hazardous condition to the

subjective choice an invitee must make when deciding to cross or not cross the hazard.

Courts and practitioners will struggle with these thorny questions in the wake of today’s

opinion, none of which would arise if we were to return to the Restatement approach.




                                            11
       Contrary to the majority’s assertion, I do not “posit a regime whereby premises

owners would become virtual insurers to those who enter their property.” Ante at 29.

This statement would only be true if one assumes that in every premises-liability case that

reaches a jury, the jury automatically decides in favor of the injured invitee. Rather, I

have confidence in our jury system and a jury’s ability to rationally decide a case under

the law.10 Were this case to survive summary disposition, the jury might very well find

that the Lanctoes did not breach the standard of care because they took reasonable

measures within a reasonable time to address the icy condition on the sidewalk, or that

although there was a breach of the duty, that breach was not the proximate cause of the

harm to plaintiff.11 I merely posit an approach that is consistent with the pre-Lugo

10
  Despite its professions of adherence to the law, the only “predictability” the majority
seeks to add to the law is the certainty of summary disposition for defendants in open-
and-obvious cases. As I have pointed out, a premises possessor has little chance of
predicting the possible extenuating circumstances that might arise and force an individual
to choose between the risks of crossing a hazard versus the risks of not crossing.
However, a premises possessor can predict with relative ease that invitees will proceed to
encounter even an open-and-obvious hazard when it is blocking the only available
entrance to the invitor’s business.

       Further, I have not espoused a position that would require a landowner to keep his
or her property in perfect condition at all times for all people. See ante at 30 n 56.
Reasonableness—not perfection—is the standard by which a premises possessor’s duty is
measured. And while I appreciate the majority’s introduction of Archbishop of
Canterbury John Morton’s infamous medieval fork, a Morton’s Fork is a choice between
two equally unpleasant alternatives. I do not think that asking a premises possessor to
cast about a little Morton’s Salt to make the only approach to a business reasonably safe
qualifies as an equally unpleasant alternative to potential liability for injuries. Rather
than being a negative alternative, the premises possessor’s duty is a beneficial, protective
measure imposed to lessen the possibility of injuring invitees and, hence, to avoid the
imposition of liability.
11
  Deposition testimony indicates plaintiff suffered a fractured T12 vertebra that required
surgery, persistent nerve damage, and long-term pain.



                                            12
jurisprudence of this Court and would allow a premises possessor’s ultimate liability in a

case such as this to be decided by a jury of Michigan’s citizens.

                                    IV. APPLICATION

       Under the Restatement approach and this Court’s historical jurisprudence, I would

hold that the Court of Appeals did not err when it affirmed the trial court’s ruling that

summary disposition was not appropriate in regard to defendants Richard and Lori

Lanctoe. Fitness Xpress was a health club held open to the general public, and plaintiff

was invited to make use of the facility. The Lanctoes had a duty to clear the ice and snow

hazard in front of the only entrance to the facility, and plaintiff had the reciprocal right to

expect that reasonable care would be taken to make safe the only approach available to

invitees wishing to make use of the facility. Despite the open-and-obvious nature of the

hazard and the fact that plaintiff knew of the risk, the Lanctoes should have anticipated

that all customers entering the facility through the sole approach to the front door would

be at risk of injury.

                                     V. CONCLUSION

       Today’s majority opinion creates an illogical and unworkable rule that will serve

only to bar the courthouse doors to Michigan’s injured invitees. Rather than clarifying

the law, the majority opinion creates a host of unanswered questions that will create

confusion as courts and practitioners attempt to find the answers. Further, by reducing

the invitor’s duty to the very rarest of situations involving extenuating circumstances, the

majority opinion also reduces the beneficial incentives for Michigan’s business owners to

take reasonable measures to protect against ice and snow hazards on their property. I




                                              13
would return this Court’s jurisprudence to that of the Restatement.   Accordingly, I

respectfully dissent.


                                                   Michael F. Cavanagh
                                                   Marilyn Kelly




                                        14
                            STATE OF MICHIGAN

                                   SUPREME COURT


CHARLOTTE HOFFNER,

             Plaintiff-Appellee,
             Cross-Appellant,

and

BLUE CROSS BLUE SHIELD OF
MICHIGAN,
          Plaintiff-Appellee,

                                                            No. 142267
v

RICHARD LANCTOE and LORI
LANCTOE,

             Defendants-Appellants,
             Cross-Appellees,

and

PAMELA MACK, TIFFANI K. AHO, and
MOUSIE, INC., d/b/a FITNESS XPRESS,

             Defendants.

HATHAWAY, J. (dissenting).
      I join Justice CAVANAGH in his well-articulated criticisms of the majority’s

conclusion that Richard and Lori Lanctoe owed no duty to plaintiff in this case involving

a fall on a natural accumulation of ice and snow.1 While the majority bemoans the fact

1
  References in this opinion to “plaintiff” are to Charlotte Hoffner and not to her medical
insurer, Blue Cross Blue Shield of Michigan, which intervened as a party plaintiff.
that I do not thoroughly discuss the past versions of its “special aspects” doctrine, I agree

with and will not repeat Justice CAVANAGH’S cogent and insightful criticisms with regard

to this ever-evolving and elusive doctrine. I write separately to express my consternation

at how far this latest version of the doctrine strays from binding precedent in this state.

         In this latest version, the majority holds that the “special aspects” exception to the

open and obvious doctrine only permits recovery in circumstances that present a uniquely

high likelihood of harm. The majority further holds that because plaintiff was not

“trapped” in a building or “compelled by extenuating circumstances with no choice but to

traverse a previously unknown risk,” the danger was not unavoidable or even

“effectively” so. I disagree because the majority decision not only fails to follow binding

precedent, it also disregards the open and obvious doctrine as set forth in 2 Restatement

Torts, 2d, §§ 343 and 343A, pp 215-222. Moreover, the decision diminishes the role of

juries in favor of judicial fact-finding, in direct contravention of the specific mandate of

the Michigan Constitution.

         First and foremost, as the majority acknowledges, Quinlivan v Great Atlantic &

Pacific Tea Co, Inc2 remains binding precedent in this state.3 Quinlivan rejected the

notion that Michigan’s northern geographic location somehow relieves a premises owner

of duties owed to an invitee. In doing so, this Court looked to the common law of the

state of Alaska for guidance. Quinlivan quoted Alaska’s approach with approval:


2
  Quinlivan v Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244; 235 NW2d 732
(1975).
3
    See ante at 11-12.



                                               2
             “Alaska’s climatic conditions do not metamorphize all risks arising
      from ice and snow conditions into reasonable risks for the business invitee.
      Nor are we persuaded by appellee Carr’s policy argument that in Alaska it
      would result in unreasonable costs to the private-commercial possessor of
      land to require the possessor to clear ice and snow, or otherwise remedy
      conditions which amount to unreasonable risks of harm to its business
      invitees. The mere fact that snow and ice conditions prevail for many
      months throughout various locations in Alaska is not in and of itself
      sufficient rationale for the insulation of the possessor of land from liability
      to his business invitee. Nor do such climatic conditions negate the
      possibility that the possessor should have anticipated harm to the business
      invitee despite the latter’s personal knowledge of the dangerous snow and
      ice conditions or the general obviousness of such conditions.

             “What acts will constitute reasonable care on the part of the
      possessor of land will depend on the particular variables of each case. Our
      decision today does not represent the adoption of a flat requirement that the
      possessor’s duty requires that he attempt to keep his land free of ice and
      snow. Dependent on the circumstances, reasonable care on the possessor’s
      part could be demonstrated by other reasonable acts such as the sanding of
      the area, or application of salt.”[4]

      Moreover, Quinlivan acknowledged the rigorous duties owed an invitee.

Quinlivan held that a premises owner owes a duty to an invitee to protect him or her from

the hazards of natural accumulations of ice and snow. The Court held:

             In our view the Alaska Court has appropriately conceived the legal
      duty owed by the invitor to the invitee. As that Court found the basis for its
      decision rooted in pre-existing Alaska law, we find that the basis for our
      decision is grounded in cases such as Torma [v Montgomery Ward & Co,
      336 Mich 468; 58 NW2d 149 (1953)], which have recognized the rigorous
      duty owed an invitee. To the extent pre-existing case law authority
      indicated that the natural accumulation rule applied in an invitor-invitee
      context, that authority is overruled. For reasons adequately stated by the
      Alaska Court, we reject the prominently cited notion that ice and snow
      hazards are obvious to all and therefore may not give rise to liability. While
      the invitor is not an absolute insurer of the safety of the invitee, the invitor

4
 Quinlivan, 395 Mich at 259-260, quoting Kremer v Carr’s Food Center, Inc, 462 P2d
747, 752 (Alas, 1969).



                                             3
         has a duty to exercise reasonable care to diminish the hazards of ice and
         snow accumulation. The general description of the duty owed appearing in
         the Restatement is a helpful exposition of the duty described in Torma. As
         such duty pertains to ice and snow accumulations, it will require that
         reasonable measures be taken within a reasonable time after an
         accumulation of ice and snow to diminish the hazard of injury to the
         invitee.[5]
         Thus, Quinlivan soundly rejected the previously held notion that ice and snow

hazards are obvious to all and therefore may not give rise to liability. While the Court

acknowledged that a premises owner is not an absolute insurer of the safety of an invitee,

the Court recognized that a premises owner has a duty to exercise reasonable care to

diminish the hazards of ice and snow accumulation. In order to fulfill that duty, a

premises owner must take reasonable measures, within a reasonable time after an

accumulation of ice and snow, to diminish the hazard of injury to invitees. As Quinlivan

clearly opined, the question is one of reasonableness. The premises owner has a duty to

take reasonable steps to diminish the hazard of ice and snow, and invitees have a duty to

take reasonable actions for their own safety. Today’s decision fails to apply this analysis.

While the majority cites Quinlivan as controlling precedent, it applies an analysis that

ignores these principles. If the majority intends to overrule Quinlivan, it should do so

in a forthright manner rather than claim that it is merely “clarifying” the law.

         Moreover, to the extent that the open and obvious doctrine plays any role in the

discussion of the Lanctoes’ duty in this case, §§ 343 and 343A of the Second Restatement

of Torts form the basis for Michigan’s open and obvious danger caselaw, and I see no

reason to abandon the principles set forth in those sections. The Restatement contains

5
    Quinlivan, 395 Mich at 260-261 (emphasis added).



                                              4
exceptions to the so-called “no-duty” rule that the open and obvious doctrine creates.

Rather than address these exceptions, the majority focuses on “special aspects.”

However, as Justice CAVANAGH has astutely observed, the Restatement contains

exceptions to the no-duty rule, and “these exceptions cannot be conveniently summarized

by a ‘special aspects’ analysis.”6 Instead, the exceptions as set forth in the Restatement

need to be maintained as part of Michigan’s caselaw.

      The relevant sections of the Restatement 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.

                                         * * *

             § 343 A. 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.



6
 Mann v Shusteric Enterprises, Inc, 470 Mich 320, 337; 683 NW2d 573 (2004)
(CAVANAGH, J., concurring in part and dissenting in part).



                                            5
               (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.[7]

         While there is no absolute duty to warn invitees of known or obvious dangers,

important exceptions emerge from the Restatement that limit the application of this

general rule. The primary exception is that a premises owner is not liable unless he or

she “knows or by the exercise of reasonable care” would discover or realize that invitees

“will fail to protect themselves against” the danger or “unless the possessor should

anticipate the harm despite such knowledge or obviousness.”8               Thus, under the

Restatement, the premises owner retains a duty to protect invitees and may still be held

liable when the harm could be reasonably anticipated despite the fact that the danger is

open and obvious.        This exception was acknowledged in Riddle v McLouth Steel

Products Corp:

                Moreover, 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. A negligence action may only
         be maintained if a legal duty exists which requires the defendant to conform
         to a particular standard of conduct in order to protect others against
         unreasonable risks of harm. If the plaintiff is a business invitee, the
         premises owner has a duty to exercise due care to protect the invitee from
         dangerous conditions. However, where the dangers are known to the
         invitee or are so obvious that the invitee might reasonably be expected to
         discover them, an invitor owes no duty to protect or warn the invitee unless
         he should anticipate the harm despite knowledge of it on behalf of the
         invitee.



7
    2 Restatement Torts, 2d, §§ 343 and 343A, pp 215-216, 218 (emphasis omitted).
8
    Id. at pp 215, 218 (emphasis altered).



                                              6
                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.

                If, for example, the dangerous conditions on the premises are hidden
         or latent, the premises owner is obliged to warn the invitee of the dangers.
         Defendant’s failure to warn under these circumstances may indicate a
         breach of the legal duty owed plaintiff. If the conditions are known or
         obvious to the invitee, the premises owner may nonetheless be required to
         exercise reasonable care to protect the invitee from the danger. What
         constitutes reasonable care under the circumstances must be determined
         from the facts of the case. While the jury may conclude that the duty to
         exercise due care requires the premises owner to warn of a dangerous
         condition, there is no absolute duty to warn invitees of known or obvious
         dangers.[9]

         Additionally, in applying this exception, an important principle emerges from the

language of the Restatement. The Restatement clearly provides that a premises owner

owes a heightened duty to anticipate possible harm to invitees. Section 343A provides

that “[i]n 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 . . . is a

factor of importance indicating that the harm should be anticipated.”10 Thus, when a

person is an invitee entitled to use the premises, his or her invitee status is a factor of

importance indicating that the premises owner should have anticipated the harm. This

principle clearly recognizes the increased duty that the premises owner owes to an invitee

and that the mere status as an invitee serves as an important factor indicating that the


9
  Riddle v McLouth Steel Prod Corp, 440 Mich 85, 95-97; 485 NW2d 676 (1992)
(emphasis added) (citations omitted).
10
     2 Restatement Torts, 2d, § 343A, p 218 (emphasis altered).



                                              7
premises owner should have anticipated the harm.         This principle requires that the

premises owner anticipate harm that might occur to an invitee. It is reasonable to assume

that customers will use entrances open to the public during business hours, and a

premises owner is thus duty-bound to anticipate harm that might come to the business

invitee who uses those entrances. The majority fails to recognize this important concept

and, instead, it fashions an ill-conceived and erroneous set of rules for the application of

the open and obvious doctrine.

       Turning to the application of the law to this case, there is no question that the

majority recognizes the dangers presented by ice and snow.11 There is also no question

that plaintiff was a business invitee who was entitled to use the premises by virtue of the

membership that she bought from Fitness Xpress. The fitness facility was open for

plaintiff to use and enjoy during winter months. Plaintiff fell on ice and snow in front of

the only entrance to Fitness Xpress. Under the lease Fitness Xpress had signed with the

Lanctoes, who owned the property, the Lanctoes were responsible for snow removal.

Given these circumstances, it would not be unreasonable for a jury to find that the

Lanctoes should have anticipated that plaintiff would have failed to protect herself from

the hazard presented by the ice and snow because there was no other method of public

ingress to and egress from the business. Nor would it be unreasonable for a jury to find

that plaintiff did not perceive or recognize the hazard. Conversely, a jury could also


11
   This recognition is clearly noted in the majority’s statement that “[u]nfortunately, the
accumulation of snow, ice, and other slippery hazards on surfaces regularly traversed by
the citizens of this state results in innumerable mishaps and injuries each year.” Ante at
2.



                                             8
reasonably conclude that the Lanctoes took appropriate steps to diminish the hazard or

that plaintiff did not take appropriate actions to protect her own safety.

         Most importantly, however, these are questions of fact for the trier of fact to

decide and are not properly decided by the court on a motion for summary disposition or

on appellate review.12 The right to trial by jury is a right protected by our Michigan

Constitution.13 When questions of fact exist, those questions are properly decided by the

jury.14 Thus, this Court not only errs by holding that the case is to be decided as a matter

of law, the decision diminishes the role of juries, in favor of judicial fact-finding, in direct

contravention of the specific mandates of the Michigan Constitution.

         Finally, I share Justice CAVANAGH’S concern that today’s holding is “repugnant to

the traditional jurisprudence of this Court and a grave disservice to Michigan’s citizens

and visitors.”15 Accordingly, I dissent.


                                                           Diane M. Hathaway
                                                           Marilyn Kelly




12
  See Nowland v Rice’s Estate, 138 Mich 146, 148; 101 NW 214 (1904); In re Stebbins
Estate, 94 Mich 304, 307-308; 54 NW 159 (1892).
13
     Const 1963, art 1, § 14.
14
     Nowland, 138 Mich at 148; Stebbins, 94 Mich at 308.
15
     Ante at 7.



                                               9
