                          STATE OF MICHIGAN

                             COURT OF APPEALS



CHERYL DORSEY,                                                       UNPUBLISHED
                                                                     April 13, 2017
               Plaintiff-Appellant,

v                                                                    No. 330690
                                                                     Oakland Circuit Court
TAUBMAN AUBURN HILLS ASSOCIATES, a                                   LC No. 2014-142098-NO
Limited Partnership,

               Defendant-Appellee.


Before: O’CONNELL, P.J., and GLEICHER and BOONSTRA, JJ.

GLEICHER, J. (concurring).

        I concur with the majority only because Riddle v McLouth Steel Prod Corp, 440 Mich 85,
95; 485 NW2d 676 (1992), and its progeny compel me to do so. This case exemplifies the
juridical contradictions inherent in our state’s “open and obvious” jurisprudence, precipitating
this separate opinion.

        Viewed in the light most favorable to Dorsey, defendant negligently created a dangerous
condition by repairing a sidewalk joint with an inappropriate material that appeared solid, but
gave way under the weight of a foot. On the other hand, as the majority accurately observes, “a
reasonably prudent person would be aware that joints, cracks, or other uneven areas of a
sidewalk can present a tripping hazard.” A jury could easily find that both parties were
negligent. Given that we live in a comparative negligence world, why does Dorsey’s negligence
bar her recovery while the negligence of defendant is excused?

        Our Supreme Court long ago banished the notion that under the common law, an injured
person’s contributory fault should eliminate a fair allocation of tort liability. See Placek v
Sterling Hts, 405 Mich 638; 275 NW2d 511 (1979). Under a comparative fault regime, the trier
of fact determines the relative degree of the parties’ negligence. In a case like this, the calculus
would certainly include the obviousness of the danger and its visibility. So why does an open
and obvious danger absolve a negligent landowner from any liability by negating the
landowner’s duty to keep its premises in reasonable repair? And lest there be any confusion
regarding a landowner’s duty, the Supreme Court has repeatedly elucidated that a landowner
owes to an invitee such as Dorsey an “obligation to also make the premises safe, which requires
the landowner to inspect the premises and depending upon the circumstances, make any



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necessary repairs or warn of any discovered hazards.” Stitt v Holland Abundant Life Fellowship,
462 Mich 591, 597; 614 NW2d 88 (2000).

        In Riddle, 440 Mich at 99, the Supreme Court adopted a duty-based open and obvious
danger defense. In reaching this result, the Court appropriated the analysis of the Illinois
Supreme Court in Ward v K Mart Corp, 136 Ill 2d 132; 554 NE2d 223 (1990), rejecting that “the
adoption of comparative negligence . . . has affected the basic duty a landowner or occupier owes
to entrant upon his land” with respect to open and obvious conditions.1 In the 25 years that have
elapsed since Riddle was decided, three important developments have dramatically altered the
legal landscape. A re-examination of Riddle is long overdue.

        First, in countless cases involving whether a particular condition is open and obvious,
Michigan courts have applied the test applicable in all negligence case—the reasonable person
standard. In Novotney v Burger King (On Remand), 198 Mich App 470, 475; 499 NW2d 379
(1993), we engrafted that standard on a court’s determination of whether a condition is open and
obvious: “Would an average user with ordinary intelligence have been able to discover the
danger and the risk presented upon casual inspection?” The Novotney formulation is ubiquitous
in our premises liability caselaw.2 Whether called the “average person with ordinary
intelligence” test as in Novotney, or “a reasonably prudent person” standard as the majority does
here, the pertinent inquiry in premises liability cases echoes that in all negligence cases: did the
plaintiff behave reasonably under the circumstances?

        The second post-Riddle development concerns comparative fault. When the Supreme
Court decided Riddle, comparative fault was solely a creature of the common law that had been
embraced in Placek. But that changed in 1995 when our Legislature adopted MCL 600.2958,
explicitly enshrining the doctrine of comparative fault in all tort actions:

       Subject to [MCL 600.2959], in an action based on tort or another legal theory
       seeking damages for personal injury, property damage, or wrongful death, a
       plaintiff’s contributory fault does not bar that plaintiff’s recovery of damages.


1
  The Riddle Court engaged in no discussion whatsoever of the body of Michigan caselaw
holding that the obviousness of a dangerous condition, or a plaintiff’s familiarity with that
condition, was relevant to a plaintiff’s fault rather than a defendant’s duty. See Town v
Armstrong, 75 Mich 580; 42 NW 983 (1889); Rice v Goodspeed Real Estate Co, 254 Mich 49,
55; 235 NW 814 (1931) (emphasis added) (“One who knows or in the exercise of ordinary care
should have known the existence of danger from which injury might reasonably be anticipated
and who by his voluntary acts or omissions exposes himself to such danger is guilty of
negligence, if under the circumstances an ordinarily prudent person would not have incurred the
risk of injury which such conduct involved.”); and Cadagan v Great Atlantic & Pacific Tea Co,
298 Mich 207, 212; 298 NW 504 (1941) (where the plaintiff knew of the dangerous condition on
the sidewalk but used it anyway, rendering her “guilty of contributory negligence”).
2
 The Supreme Court denied leave to appeal in Novotney v Burger King Corp, 445 Mich 862;
519 NW2d 158 (1994), and has never raised any challenge to the application of the reasonable
person standard in cases involving allegedly open and obvious dangers.

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The Legislature carved out no exception for premises liability claims despite its awareness of
Riddle.

        The clear and express language of MCL 600.2958 prohibits a court from barring a
plaintiff’s recovery based on her comparative fault. But as the majority’s opinion in this case
vividly demonstrates, applying the open and obvious danger doctrine violates this prohibition.
Because her conduct fell below that of a “reasonably prudent person,” Dorsey may not recover—
despite that defendant was concurrently negligent, and arguably more negligent than Dorsey.
Even if a plaintiff cautiously approaches a negligently created or permitted danger and attempts
to avoid it, she may not recover. This result simply cannot be reconciled with MCL 600.2958.
“It is anomalous to find that a defendant has a duty to provide reasonably safe premises and at
the same time deny a plaintiff recovery from a breach of that same duty.” Tharp v Bunge Corp,
641 So 2d 20, 25 (Miss, 1994). I would hold that the open and obvious danger defense is
incompatible with our Legislature’s pronouncement that comparative negligence controls.

        Finally, the “no duty” rule inherent with Michigan’s open and obvious jurisprudence is a
relic from foregone era. See James, Tort Liability of Occupiers of Land: Duties Owed to
Licensees and Invitees, 63 Yale L J 605, 628 (1954); Keeton, Personal Injuries Resulting From
Open and Obvious Conditions, 100 U Pa L Rev 629, 642 (1952). A number of courts have
recognized that comparative negligence principles apply in premises liability disputes as well as
all other tort cases. See Carter v Bullitt Host, LLC, 471 SW3d 288 (Ky, 2015); Steigman v
Outrigger Enterprises, Inc, 126 Haw 133; 267 P3d 1238 (2011); Foster v Costco Wholesale
Corp, 128 Nev 773, 781-782; 291 P3d 150 (2012); Tharp v Bunge Corp, 641 So 2d 20 (Miss,
1994). But until our Supreme Court says otherwise, negligent landowners are graced with
judicially created immunity and plaintiffs such as Dorsey must be denied recovery, regardless of
the Legislature’s clearly expressed contrary view.



                                                           /s/ Elizabeth L. Gleicher




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