Susan Blackwell v. Dean Franchi
Susan Blackwell v. Dean Franchi
Opinion of the Court
On March 6, 2018, the Court heard oral argument on the application for leave to appeal the January 31, 2017 judgment of the Court of Appeals. On order of the Court, the application is again considered. MCR 7.305(H)(1). In lieu of granting leave to appeal, we REMAND this case to the Court of Appeals to determine whether the defendants had a duty to warn the plaintiff of the condition. The panel did not consider the defendants' other arguments, which could have provided alternative grounds to affirm the trial court's grant of summary disposition, notwithstanding its conclusion-which we do not disturb-that questions of fact remain as to whether the particular condition was open and obvious.
As an initial matter, we agree with both lower courts that the plaintiff was a licensee. In Preston v. Sleziak , we adopted the Restatement (Second) of Torts' articulation of the duty owed by a premises possessor to licensees:
"A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved." [ Preston v. Sleziak ,383 Mich. 442 , 453,175 N.W.2d 759 (1970), quoting Restatement Torts, 2d, § 342, p. 210, overruled in part on other grounds by Stitt v. Holland Abundant Life Fellowship ,462 Mich. 591 ,614 N.W.2d 88 (2000).]
"The landowner owes no duty of inspection or affirmative care to make the premises safe for the licensee's visit."
Stitt
,
On the other hand, "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."
Riddle v. McLouth Steel Products Corp.
,
Although the defendants did argue that if the condition was one for which they owed a duty to warn licensees, it was nevertheless open and obvious, and the trial court granted their motion for summary disposition on that basis, that was not the only basis for their summary disposition motion. The defendants have also consistently presented another argument: that the particular condition complained of here-a single step in a dark room-was not a condition that a licensee would not know of or have reason to know of that posed an unreasonable risk of harm such that the defendants had a duty to warn.
If the defendants prevail on this claim, the trial court's ruling should be affirmed on this alternative basis. In other words, the panel should determine whether the defendants owed a duty to the plaintiff with respect to this particular condition regardless of whether the condition was open and obvious. See
Preston
,
Accordingly, we REMAND this case to the Court of Appeals for consideration of this issue it has not yet addressed: whether defendants owed plaintiff a duty to warn about the step because the plaintiff did not " 'know or have reason to know of the condition and the risk involved,' " and it involved " 'an unreasonable risk of harm,' " and the defendants should not have expected that a licensee like the plaintiff would " 'discover or realize the danger ....' " Id ., quoting Restatement, § 342.
We do not retain jurisdiction.
Concurring Opinion
I concur in the Court's order remanding this case to the Court of Appeals to address the defendants' remaining summary disposition claims, which could provide an alternative basis for affirming the trial court ruling. I agree that questions of fact remain as to whether the particular condition-an 8-inch step in a dark room-was open and obvious, and that that question may not be material if the defendants had no duty to warn the plaintiff for the other reasons they have given.
I write briefly to respond to the dissent. A lot of the dissent's concerns may be addressed by the Court of Appeals in deciding the defendants' other claims within our traditional doctrinal framework. Indeed, settled doctrine provides an avenue to reach the same result as the dissent would have us reach today where the record so supports. But I want to clarify what I believe that inquiry should look like, and why I believe the dissent's alternative approach departs from well-established doctrine.
First, the dissent relies mistakenly on principles of comparative negligence to define the scope of the defendants' duty to warn. I am sympathetic to the dissent's view that a social host should expect guests to behave prudently and should not be held liable for their negligence. And there is room for the dissent's underlying concerns to do work in a proper analysis of duty. The Restatement (Second) of Torts, which we adopted in Preston , provides that a possessor has a duty to warn of a condition if the condition "involves an unreasonable risk of harm to ... licensees" and the possessor " should expect that they [ a licensee ] will not discover or realize the danger ...." 2 Restatement Torts, 2d, § 342, p. 210 (emphasis added). This principle would support the dissent's contention that "[d]efendants had every right to expect that plaintiff was such a prudent person who would turn on the light and see the step, or at a minimum decline to walk into a darkened room without even the most cursory effort to determine whether it was safe to do so."
And yet, this element of the duty to licensees does not mean that a host has no duty whatsoever to warn a social guest about any condition in a dark room (no matter how dangerous) because the host is entitled as a matter of law to expect guests to take the affirmative step of turning on a light switch to discover hazards. To be sure, a reasonably prudent person, walking through a strange house, might turn on the light before entering a dark room. And when a guest fails to do so, that failure may very well be relevant to apportioning damages under comparative negligence principles. But it will not be a reason for a court to find as a matter of law that there is no duty to the guest at all, no matter what dangerous condition awaited her.
The Restatement contemplates that a licensee will discover "conditions which are perceptible by his senses, or the existence of which can be inferred from facts within the licensee's knowledge." Restatement, § 342, comment f , p. 212. Some conditions in a dark room will be more predictable than others-for example, it might be a fact within the licensee's knowledge that "mudrooms ... are [often] adjacent to garages" and that "garages are often themselves not level with the home" (these "facts" seem to be within the dissent's knowledge, curiously). The Restatement's standard thus assigns the homeowner a duty commensurate with the hazard: a slipper on the floor in a dark mudroom is different than an open shark tank in that same dark room. I trust the Court of Appeals can evaluate based on the record where the 8-inch step falls on that continuum.
The dissent, in contrast, would create some kind of strange per se rule: defendants as a matter of law do not owe a duty to warn licensees of any danger that lurks in a dark room if there is a light switch nearby. Perhaps unsurprisingly, this rule does not map onto any argument that the defendants made in this case, and it would constitute a new approach to premises doctrine.
Such a rule also would resurrect a judicial version of our long-dead contributory negligence regime under the camouflage of a duty analysis. But of course such an approach does not comport with the established understanding of negligence doctrine. The dissent owns its doctrinal contortion: "Although Brusseau was decided on the basis of contributory negligence, I believe that it would today likely be resolved on the basis of duty."
But we judges are not authorized to apply contributory negligence principles by recasting them as duty. The Legislature has foreclosed that approach. Michigan, like most other jurisdictions, went from a contributory negligence jurisdiction
to a comparative fault jurisdiction decades ago-comparative fault was judicially adopted in 1979 in
Placek v. City of Sterling Heights
,
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.
* * *
Conversely, comparative negligence is an affirmative defense. Michigan adopted this standard to promulgate a "fair system of apportionment of damages." Under this doctrine, a defendant may present evidence of a plaintiff's negligence in order to reduce liability . [ Riddle ,440 Mich. at 96, 98 ,485 N.W.2d 676 (citations omitted; emphasis added).]
We went on to quote the reasoning of the Illinois Supreme Court on the same question from
Ward v. K mart Corp.
,
In a common law negligence action, before a plaintiff's fault can be compared with that of the defendant, it obviously must first be determined that the defendant was negligent. It is fundamental tort law that before a defendant can be found to have been negligent, it must first be determined that the defendant owed a legal duty to the plaintiff.
In short, we must operate under the comparative fault regime the Legislature imposed. Comparative fault is a rule of decision for damages. It does not define the contours of the defendant's legal duty.
Second, while the dissent does not cite much of the evidence from the deposition testimony, a court considering a motion under MCR 2.116(C)(10) is obligated to evaluate it. The dissent proceeds as if a number of facts are undisputed. For example, the dissent states that "there is nothing to suggest that defendants had reason to expect that plaintiff would not in a timely manner discover the step." But the plaintiff
has
suggested a few reasons: the plaintiff testified in her deposition that the floor of the mudroom appeared level with the wood floor of the hallway; Endia Simmons testified that if she had been the one to enter the mudroom first, she would have fallen, because there was no way to tell any height differential existed; Ebony Whisenant also testified that the floor looked level between the two rooms; and photographs show that the dark floor could
make the step difficult to see, even with adequate light.
To reiterate, the proper evaluation of a homeowner's duty to a licensee will take into account the questions that concern the dissent. But no doctrinal contortion is needed to protect property owners from baseless claims. Well-established doctrine will work.
VIVIANO , J., joins the statement of MCCORMACK , J.
This new approach would not result in less litigation, of course. Just different litigation. Rather than litigating the dangerousness of the condition on the land, the parties instead will wage a war of light-switch litigation. We could look forward to adjudicating questions about where the light switch was, whether it was easily findable, and what a licensee should have to do to find it. And it begins to look like an affirmative duty to ensure that there is an accessible and working light switch. So much for relief for property owners.
Michigan is (mostly) a pure comparative negligence jurisdiction. That is, even if a plaintiff is 99% at fault, she can still recover 1% damages. The one exception to this is for noneconomic damages-like compensation for pain and suffering, emotional distress, or loss of enjoyment-which are barred whenever the plaintiff is more at fault than anyone else. MCL 600.2959 ("If that person's percentage of fault is greater than the aggregate fault of the other person or persons, whether or not parties to the action, the court shall reduce economic damages by the percentage of comparative fault ... and noneconomic damages shall not be awarded.")
There are also questions of fact that would be relevant if the dissent's no-duty-if-there-is-a-light-switch rule prevailed: whether the plaintiff would have known which light switch corresponded with the mudroom, how obvious that switch was, whether she should have flipped it. And so on.
While unimportant to resolving this case, I am puzzled by the dissent's view that the open and obvious danger doctrine is only relevant to invitees. I do not follow this doctrinal move. I am aware of no authority that limits the work that the open and obvious danger doctrine can do in the way the dissent views it. We have never held that the open and obvious danger doctrine is limited to invitees. Indeed, the Court of Appeals has routinely applied the doctrine to licensees, and we have not intervened. See, e.g.,
Pippin v. Atallah
,
The open and obvious danger doctrine is implicit in the definition of the duty owed to licensees because a premises possessor will never owe a duty to warn licensees of an open and obvious danger. A danger that is open and obvious will always be one a landowner should expect that a licensee should discover.
The Restatement explicitly incorporates the open and obvious danger doctrine as a limit on liability to invitees, who would otherwise be entitled to expect greater protection from the landowner. Comment a to § 343 instructs that § 343 "should be read together with § 343 A, which deals with the effect of the fact that the condition is known to the invitee, or is obvious to him .... That Section limits the liability here stated." And Comment b to Restatement § 343 offers a detailed explanation of the distinction between the duty owed to licensees and invitees. It concludes:
As stated in § 342, the possessor is under no duty to protect the licensee against dangers of which the licensee knows or has reason to know. On the other hand, as stated in § 343 A, there are some situations in which there is a duty to protect an invitee against even known dangers, where the possessor should anticipate harm to the invitee notwithstanding such knowledge. [Restatement, § 343, p 217.]
Our court's version of this carve out of the open and obvious danger defense for invitees is the special aspects doctrine. As in the Restatement's treatment, there is no reason that the special aspects carve out for invitees should apply to licensees-a possessor owes a licensee nothing more than a duty to warn, and an open and obvious danger comes as its own warning. The work that the open and obvious danger doctrine can do for both classes of visitors is apples to apples: there is no duty to warn any visitor of open or obvious dangers. But the extent of residual duty is oranges. Invitees must still be protected from certain known dangers; but a licensee who encounters an open and obvious danger has received the only protection to which he is entitled under our doctrine-a warning.
I agree with amicus curiae the Michigan Manufacturers Association-a landowner has a duty to warn of dangers she should not expect a licensee to discover, but "[a]ny duty to warn does not apply to dangers that are open and obvious ...." The existence of an open and obvious danger itself warns guests of a potential hazard. Thus, if a danger is open and obvious, a property owner has no duty to fix it (for invitees) or to warn about it (for licensees). In my view, property owners should be able to rely on the open and obvious danger doctrine no matter who is visiting.
Dissenting Opinion
This case concerns an incident that occurred during a Christmas party hosted by defendants and attended by plaintiff. When plaintiff arrived, she went to place her purse for the evening in a small room adjoining the garage. Notwithstanding that the room was dark, plaintiff chose to proceed into the room without turning on the light switch that was immediately adjacent to the entryway. She then lost her balance and fell, injuring herself, when she set foot into the room, which was about 8 inches lower than the hallway. Can defendants be held liable in premises liability for plaintiff's injuries? I think not and believe this to be a long-settled matter of common law in this state. Accordingly, I respectfully dissent from this Court's order remanding to the Court of Appeals to address the issue of duty because I would instead conclude today that defendants owed no duty. Thus, I would reverse the judgment of the Court of Appeals and reinstate the trial court's grant of summary disposition in favor of defendants.
I. FACTS AND HISTORY
Plaintiff Susan Blackwell attended a December 2013 party at the home of defendants Dean and Debra Franchi. When plaintiff arrived, she was allegedly told by the latter that she could place her purse in a small room to the left, described as the "mudroom" by the parties. There was no light on in the mudroom, and according to plaintiff, the hallway that adjoined the mudroom was "dimly lit." However, there was a light switch immediately next to the entrance. There was an 8-inch step creating a drop-off into the mudroom. Plaintiff, however, in the belief that the mudroom was level with the hallway, walked directly into the mudroom, lost her balance and fell, suffering injuries. Plaintiff had made no effort to turn on the light beforehand or otherwise to check to be certain that it was safe to enter the mudroom.
Plaintiff sued defendants on the basis of premises liability, alleging that defendants breached the duty owed to her as an invitee by failing to "inspect for hazards, dangers and improper conditions of the premises"; "warn[,] advise and instruct persons regarding potentially dangerous conditions on the premises"; and "provide safe, proper and adequate access and egress to the Plaintiff and others similarly situated[.]"
Plaintiff appealed, arguing that she was instead an invitee and that the step was not open and obvious because the hallway floor and the mudroom floor appeared to be level under the lighting conditions confronted. According to plaintiff, defendants were negligent by failing to provide adequate lighting or to warn her that there was a step down into the mudroom. The
Court of Appeals reversed and remanded to the trial court for further proceedings in an opinion authored by Judge SHAPIRO .
Blackwell v. Franchi
,
Defendants sought leave to appeal in this Court, and we directed the Clerk to schedule oral argument on the application and the parties to address the following issue:
[W]hether the appellants owed a duty to warn the appellee of the condition on the land at issue, given the general rule that "[a] landowner owes a licensee a duty only to warn the licensee of any hidden dangers the owner knows or has reason to know of, if the licensee does not know or have reason to know of the dangers involved," Stitt v. Holland Abundant Life Fellowship ,462 Mich. 591 , 596,614 N.W.2d 88 (2000). [ Blackwell v. Franchi ,501 Mich. 903 ,902 N.W.2d 595 (2017) (second alteration in original).]
II. STANDARD OF REVIEW
This Court reviews de novo the grant or denial of summary disposition.
Maiden v. Rozwood
,
III. ANALYSIS
"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."
Hoffner v. Lanctoe
,
"[T]he adult social guest is to be viewed as a licensee."
Preston v. Sleziak
,
"The explanation usually given by the courts for the classification of social guests as licensees is that there is a common understanding that the guest is expected to take the premises as the possessor himself uses them, and does not expect and is not entitled to expect that they will be prepared for his reception, or that precautions will be taken for his safety, in any manner in which the possessor does not prepare or take precautions for his own safety, or that of the members of his family." [ Preston ,383 Mich. at 451 ,175 N.W.2d 759 , quoting 2 Restatement Torts, 2d, § 330, comment h , p. 175.]
In Preston , this Court adopted § 342 of the Restatement in specifically setting forth the duty owed by a premises possessor to a licensee:
A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved. [ Preston ,383 Mich. at 453 ,175 N.W.2d 759 (quotation marks omitted).]
More recently, in
Stitt
, this Court explained that "[a] landowner owes a licensee a duty only to warn the licensee of any hidden dangers the owner knows or has reason to know of, if the licensee does not know or have reason to know of the dangers involved."
Stitt
,
"Different floor levels in private and public buildings, connected by steps, are so common that the possibility of their presence is anticipated by prudent persons."
Garret v. W.S. Butterfield Theatres, Inc.
,
Here, there was nothing at all unusual about the step itself from the hallway into the mudroom. By all indications, the step was of a normal size and was in an ordinary location-the entranceway from the hallway into the mudroom. Furthermore, while the step was allegedly concealed by darkness, there is nothing to suggest that defendants had reason to expect that plaintiff would not in a timely manner discover the step. There was a door-sized entrance point separating the hallway from the mudroom and common sense suggests that where two discrete areas of a home are separated by such an entranceway, it is a reasonable possibility that the floor levels may well be different. This is particularly true where such mudrooms, as is often the case, are adjacent to garages, because garages are often themselves not level with the home, rendering mudrooms a common transition point from the garage
to the home.
In the end, "the common law is but the accumulated expressions of the various judicial tribunals in their efforts to ascertain what is right and just between individuals
in respect to private disputes."
Price v. High Pointe Oil Co., Inc.
,
A contrary conclusion creating a
legal
obligation to warn social guests concerning the pitfalls of walking into dark rooms would hardly define the full extent of our decision. Instead, countless other legal obligations, limited only by the creativity and innovativeness of the bench and bar, would certainly be imposed upon homeowners. Would a host in directing a guest to her bathroom be legally obligated to provide a detailed warning, or otherwise supply a map of the bathroom, to the effect that a failure to turn on the light might cause the guest to run into a sink or bathtub? Would a host be legally obligated to explain to a guest why it is a poor idea to place her hand upon a stove being used to prepare dinner? And would a host be legally obligated to apprise guests of the assorted and sundry risks of dealing with cutlery, throw rugs, fireplaces, spilled drinks, stairways, and rickety chairs? If not, why are
those
legal obligations any different from the legal obligation to warn a guest about the risks of blindly confronting a darkened room?
IV. CONCLUSION
I would reiterate today the principle of our common law that a social host may not be held liable for injuries suffered by a social guest from an allegedly dangerous condition of the land when the host had no reason to expect that the guest would reasonably fail to discover the condition. That is, hosts are not required to monitor or surveil their guests to ensure that they do not suffer injury from commonplace household conditions, conditions to which the hosts and their families themselves are ordinarily and routinely subject. Here, plaintiff was injured when she stepped into the darkened mudroom without turning on the light or otherwise ascertaining that it was safe to enter. In my judgment, the law should not hold defendants liable when they had no reason to expect that plaintiff-or any other guest-would fail to exercise their own reasonable precautions. Accordingly, I would reverse the judgment of the Court of Appeals and reinstate the trial court's grant of summary disposition in favor of defendants. Because this Court fails to do so today and instead remands to the Court of Appeals to address the issue of duty-the very issue that we instructed the parties to address in our order nearly nine months ago-I respectfully dissent. I would not further delay a decision by this Court, if it is ever now to come, by requiring the parties to traverse the appellate process a second time in what I view as a matter involving the straightforward application of the settled common law of this state.
Zahra and Wilder, JJ., join the statement of Markman, C.J.
Plaintiff also brought a claim on the basis of private nuisance, a claim dismissed by the trial court and not at issue here.
Judge K. F. Kelly , dissenting, stated that she would have affirmed the trial court on the basis that "[p]laintiff should have realized the danger posed by entering a dark and unknown room."
Id
. at 582,
The following deposition exchange between plaintiff's counsel and defendant Dean Franchi illustrates the parties' understanding of a "mudroom":
Q . It's usually a room where, you know, you would take your shoes off or put your coat up or sometimes there's laundry in it and it leads to the garage?
A . Yes.
See
Brusseau v. Selmo
,
To the extent that plaintiff alleges that defendants may be held liable for failure to affirmatively illuminate the mudroom, I disagree for the simple reason that "[t]he landowner owes no [affirmative legal] duty ... to make the premises safe for the licensee's visit."
Stitt
,
Indeed, in addressing the open and obvious danger doctrine in leading cases such as
Bertrand
and
Lugo
, this Court cited §§ 343 and 343(A) of the Restatement.
Bertrand
,
Concluding that the open and obvious danger doctrine applies to licensees would create a conflict in our law. This is because part of the open and obvious danger doctrine is that a premises possessor owes an affirmative duty to alleviate the presence of certain unusual conditions of the land that have "special aspects."
Hoffner
,
That the open and obvious danger doctrine, which establishes one component of the duty owed by a premises possessor, is limited to invitees is important to recognize because there are several critical distinctions between the duty owed to invitees and the duty owed to licensees, and conflating the two would elevate the duty owed to licensees. For example, concerning invitees, a premises possessor is subject to liability if he or she " 'knows or
by the exercise of reasonable care would discover
the condition .... ' "
Bertrand
,
Common sense suggests that there is a risk associated with entering an unfamiliar dark room. Thus, the darkness of the room here was a warning that an unknown condition, dangerous or not, might await a social guest, such as plaintiff, on the other side. Once again, a "[d]efendant is not under [a] legal duty to prevent careless persons from hurting themselves."
Garret
,
Simply stated, in determining whether a duty is owed by the premises possessor to a licensee, a proper analysis includes whether the premises possessor should expect that the licensee will not discover or realize a danger. See
Preston
,
Our caselaw with respect to licensees has suggested that darkness simply cannot constitute a circumstance that "conceals" a danger. In
Habina v. Twin City Gen Electric Co
,
Courts of other states have similarly concluded that a premises possessor cannot be held liable for injuries suffered by a licensee because the condition of the land was "concealed" by darkness. See, e.g.,
Fuchs v. Huether
,
Reference
- Full Case Name
- Susan BLACKWELL, Plaintiff-Appellee, v. Dean FRANCHI and Debra Franchi, Defendants-Appellants.
- Cited By
- 15 cases
- Status
- Published