In Michigan, a premises possessor owes a duty to an invitee* to exercise reasonable care to protect the invitee from any unreasonable risk of harm caused by a dangerous condition on the land.1 The exception to this duty is the open and obvious doctrine, under which a premises possessor is protected from liability if the danger is an open and obvious one. The test to determine if a danger is open and obvious is whether “an average user with ordinary intelligence would have been able to discover the danger and the risk presented upon casual inspection.” 2 The reasoning is that the open and obvious nature of the dangerous situation serves as a warning to the invitee, who is expected to recognize the potential danger and to protect him/herself against it. Current case law in Michigan holds that if the special aspects of a condition make even an open and obvious risk unreasonably dangerous or the danger is “effectively unavoidable”, the premises possessor has a duty to undertake reasonable precautions to protect invitees from that risk.
Restatement of Torts
The open and obvious doctrine was originally based on the Restatement of Torts, under which a premises possessor is not liable to invitees for harm caused by known or obvious dangers unless the possessor anticipates that harm despite the knowledge and obviousness. A possessor should warn or protect an invitee against open and obvious dangerous conditions.
Riddle v McLouth Steel Prod Corp, 440 Mich 85 (1990)
Prior to 1990, the Michigan Court of Appeals held that the doctrine of open and obvious was abolished in favor of comparative negligence. In 1990, the Michigan Supreme Court reinstated the open and obvious doctrine in premises liability cases, and held that an invitor has the duty to warn or protect invitees from danger only when the invitor should anticipate harm to the invitee, despite the invitee’s knowledge of the danger.
Lugo v. Ameritech Corp., 464 Mich. 512, 516 (Mich. 2001)
The open and obvious doctrine was modified when the Michigan Supreme Court ruled in 2001 that if the special aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to protect invitees from that risk. A special aspect exists when the danger, although open and obvious, is unavoidable or imposes a “uniquely high likelihood of harm or severity of harm.” This standard was affirmed by the Supreme Court multiple times, including Mann v. Shusterinc Enters., 470 Mich. 320, 328-329 (Mich. 2004), Hoffner v. Lanctoe, 802 N.W.2d 648 (2010), and Attala v. Orcutt, 857 N.W.2d 275 (2014).
Black ice, or ice that is not visible from a walking height, has been an issue of dispute when it comes to the open and obvious doctrine. The Michigan Supreme Court has held in numerous cases that the open and obvious doctrine does apply to black ice. In 2008, the Court of Appeals held the opposite in Slaughter v Blarney Castle Oil Co., stating “that a question of fact remained regarding whether an average person of ordinary intelligence would have been able to discover the danger of the black ice.” Later, in Ball v. Micu, the court held that black ice was open and obvious where the plaintiff noticed the ice and was aware of the snowy conditions. As a result of these two cases, black ice may not be considered open and obvious if the injured party was not aware of the conditions and circumstances surrounding the ice.
To summarize, the general rule is that a premises possessor is not required to protect an invitee from open and obvious dangers, but, if special aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to protect invitees from that risk.
*An invitee is an individual who enters another’s premises as a result of an express or implied invitation of the owner or occupant for their mutual gain or benefit.
1 Bertrand v Alan Ford, Inc, 449 Mich 606, 609 (1995)
2 Baillie v. Dietz Org, 2003 Mich. App. LEXIS 3021, 4-5 (Mich. Ct. App. 2003)