The Michigan Court of Appeals has issued a 2-1 published opinion and requested a conflict panel under Michigan Court Rule 7.215(J)(2) to address whether retail store owners owe a duty to keep aisles reasonably safe in a case in which the plaintiff tripped over a protruding end-cap platform. In Quinto v. Woodward Detroit CVS, et al., the Court of Appeals, bound to follow its own precedent in Kennedy v. Great Atl. & Pacific Tea Co., 274 Mich. App. 710 (2007) per MCR 7.215(J)(1) (precedent established by a Court of Appeals opinion published on or after November 1, 1990 is binding on subsequent panels), nonetheless ruled that “consistent with Supreme Court case law” the merchandise-display aisles of a self-service retail store present particular circumstances such that the “open and obvious” doctrine does not eliminate the duty of the store owner to make those aisles reasonably safe for its customers-invitees. However, the panel was unable to reverse the trial court’s grant of summary judgment for the store because of the precedential effect of its 2007 opinion in Kennedy.
The plaintiff alleged she tripped and fell on a protruding platform on the end cap display of one of the store’s aisles. Testimony from the store indicated the platform was empty, not being used at the time, and could have easily been removed. The plaintiff further testified she was looking up and at the merchandise in the aisles while shopping and therefore did not see the obstruction.
The majority reasoned that no Michigan Supreme Court case had held that the “open and obvious” doctrine would apply to the factual circumstances presented by the case. The “open and obvious” doctrine is a defense in a premises liability suit that allows the business premises owner to avoid liability where the particular hazard alleged to have been the cause of the plaintiff’s injury was “open and obvious”, and therefore visible to one who takes reasonable care for their surroundings while a business invitee at the premises owner’s establishment. The majority panel here uses the factual uniqueness of the case and the absence of Michigan Supreme Court precedent applying the “open and obvious” doctrine where “distractions” diverted the plaintiff’s attention away from the hazardous condition, even if “open and obvious”, to conclude it would reverse the trial court’s grant of summary judgment for the store, but for the binding precedent of the Kennedy case.
Kennedy relied on the Supreme Court’s decision in Lugo v. Ameritech, 464 Mich. 512, 519-520 (2001), and held the presence of distractions does not obviate the “open and obvious” doctrine, and therefore, a store owner did not have a duty beyond that of a reasonable store owner to maintain safe aisles.
The dissent, Judge Cavanaugh, would not request a conflict panel resolve the case. He reasons that the majority would impose a heightened duty of care on self-service retail store owners after concluding that merchandise displays and advertisements cause customers to be so distracted that they cannot reasonably be expected to observe even an open and obvious condition that exists in an aisle while shopping, i.e., a condition that “an average person with ordinary intelligence would have discovered [ ] upon casual inspection.” Hoffner v Lanctoe, 492 Mich 450, 461; 821 NW2d 88 (2012).
It does appear the majority puts form over substance. The duty a store owner has is to maintain the premises in a reasonably safe condition. Pallets and other objects of retail merchandise actually blocking the aisles and/or in the aisles are usually open and obvious – like inventory being restocked. It might be a different story if a single pallet, unoccupied by any merchandise, were left in the middle or at the end of an aisle. In such a case, the ordinary distractions of a retail merchandise aisle (products and advertisements) might legitimately come into play in obviating even an open and obvious hazardous condition. This latter principle is the one the majority refers to as being left open by Lugo.
However, it is a stretch to say that the platform in this particular case, which appears to be nothing more than an ordinary physical extension, whether appended or not, to the end of a retail merchant’s aisle display stand is something that would fall into the category of hazards or hazardous conditions blocking, obstructing or otherwise impeding the reasonable pathways through the store’s aisles. Without this conclusion, one cannot begin to discuss the “open and obvious” defense at all. It is not an unreasonably dangerous or hazardous condition as it does not implicate the duty to maintain the premises in a reasonably safe condition.
Secondly, even if the protruding shelf extended further than the bulk of the aisle display stand, the majority fails to differentiate it from any other visibly open and obvious hazardous condition, like blue liquid detergent on a white or grey surface, or squashed grapes laying on the floor in the produce section. The “open and obvious” doctrine applies to the latter situation, as much as it should the former, as noted by Judge Cavanaugh.
Perhaps the question is whether the plaintiff in such a case ultimately testifies that he or she noticed the “condition” either before or after the injury. If there is no indication the plaintiff noticed or reasonably should have noticed the condition, then the open and obvious defense does not even apply.
However, to forward this case as a vehicle to effect any significant change in the well-established law of premises liability, and, particularly, the open and obvious defense is, as the dissenting Judge points out, misguided. The facts are far too generic. If a conflict panel is ultimately convened, it will be interesting to see if the outcome is different.
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During the last three decades alone, the Appeals and Legal Research Group at Lacey & Jones has been responsible for over 150 published decisions, including seminal decisions in workers’ compensation, governmental immunity, employment and labor law, civil rights law and insurance coverage. Because of its specialized knowledge and focus on appellate law and its recognized expertise, the Appeals and Legal Research Group at Lacey & Jones has been asked to participate as amicus curiae writing briefs for the Supreme Court or as special counsel to the Michigan Attorney General and other governmental entities in some of the most significant cases in the Court of Appeals and Supreme Court. Below are some of the recent significant cases in which Lacey & Jones, LLP’s Appeals and Legal Research Group has participated.
- Yono v. MDOT, ___ Mich. App. ___ (201_), amicus curiae brief to be filed after remand for Michigan Municipal League, et al., by Carson J. Tucker
- Omian v. Chrysler Group, LLC, 495 Mich. 859 (2013), application filed by Carson J. Tucker, Supreme Court remand to Court of Appeals on leave granted
- Ghanam v. John Does, 303 Mich. App. 522 (2013), application to appeal filed in Supreme Court by Carson J. Tucker
- State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
- Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
- Yono v. MDOT, ___ Mich ___ (201_), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
- Huddleston v. Trinity Health, et al., 495 Mich. 976 (2014), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
- Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
- Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
- Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
- Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
- McMurtrie v Eaton Corp, 490 Mich 976 (2011)
- Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
- Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
- Stokes v Chrysler, 481 Mich 266 (2008)
- Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
- Rakestraw v Gen Dynamics, 469 Mich 220 (2003)
Amicus Curious 