Milagros Dascola v. Ymca of Lansing

Order Michigan Supreme Court Lansing, Michigan October 28, 2011 Robert P. Young, Jr., Chief Justice 143320 Michael F. Cavanagh Marilyn Kelly Stephen J. Markman Diane M. Hathaway Mary Beth Kelly MILAGROS DASCOLA and JAMES DASCOLA, Brian K. Zahra, Justices Plaintiffs-Appellants, v SC: 143320 COA: 293475 Ingham CC: 06-000706-NO YMCA OF LANSING, Defendant-Appellee.

_________________________________________/ On order of the Court, the application for leave to appeal the May 19, 2011 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

YOUNG, C.J. (concurring).

There is no question that, under Michigan’s well-established premises liability law, the presence of water and soap residue in a public shower constitutes open and obvious dangers. As such, these conditions do not give rise to liability for a premises owner, and I believe that the lower courts clearly erred in not reaching this conclusion as a matter of law. However, because defendant has not filed a cross-appeal in this Court challenging the lower court’s determination that defendant is not entitled to summary disposition, I concur in the Court’s order denying leave to appeal.

Plaintiff fell while showering in a YMCA shower. She sued, alleging a premises liability theory of negligence—namely, that defendant allowed a hazardous condition (soap scum) to exist in the shower, notwithstanding defendant’s claims that its employees checked the shower every 15 to 20 minutes, cleaned it every one to two hours, and deep cleaned and sterilized it every night. Defendant argued that the allegedly hazardous condition was open and obvious, but remarkably, the trial court denied defendant’s motion for a directed verdict and held, as a matter of law, that the condition was not open and obvious, instructing the jury to this effect. On appeal, the Court of Appeals also rejected defendant’s claim that the condition was open and obvious as a matter of law, but remanded for a new trial, holding that there was a question of fact whether the condition here was in fact open and obvious.1 Plaintiff has appealed this latter holding.

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.2 While a premises owner owes a duty to exercise reasonable care to protect an invitee from unreasonable risks of harm caused by dangerous conditions on his land, the “open and obvious” doctrine is an integral part of the definition of this duty, providing that there is no duty to warn or protect an invitee from dangers that are so obvious that an invitee should reasonably be expected to anticipate them.3 A particular danger is open and obvious if an average person of ordinary intelligence would discover the danger upon casual inspection.4 A common or expected condition is not uniquely dangerous.5 Thus, whether a condition is open and obvious depends on whether a reasonably prudent person would foresee the danger, given the surrounding circumstances.6 With this understanding of Michigan law, the conclusion by the majority of the Court of Appeals that a question of fact exists regarding whether soap residue in a shower presents an open and obvious danger is, quite frankly, flabbergasting. Even a casual review of this state’s premises liability and “open and obvious” caselaw compels the conclusion that any danger created by soap residue in a public shower presents an open and obvious condition. Although the proposition is so self-evident that it hardly merits stating, it is within common understanding that the flat tiled surfaces that comprise a shower will by their nature become wet and can therefore become slippery, particularly when soap or similar products are used. It is hardly surprising that soaps, shampoos, or other bathing substances will be used in a shower and may leave residue or “soap scum” on the shower’s surface. That such surfaces may become slippery represents a quintessential “open and obvious” hazard. Moreover, there were no special attributes to this shower that rendered it uniquely or unreasonably dangerous. A reasonably prudent person of ordinary intelligence understands that a wet public shower poses a slip-and-fall hazard, particularly where soap or other residue may be present on the shower’s surface.7 The conclusion of the Court of Appeals majority holding that there is a question of fact in this regard defies common sense.

The open and obvious doctrine was developed to prevent lawsuits precisely like the present one. Because the law as applied on these facts clearly compels summary disposition in favor of defendant, had defendant filed a cross-appeal in this Court requesting such relief, I would have voted to grant it.8 Nevertheless, absent this request I concur in the decision to deny leave to appeal.

MARKMAN, J., joins the statement of YOUNG, C.J.