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Premises Liability

SUMMARY
 

Landowners are only responsible for injuries suffered on their property if they are “negligent” or act without “due care”. Furthermore, even a negligent landowner’s duty may be limited if the injured person was not “invited” to the property: if a visitor is merely tolerated or if he or she is a trespasser, the landowner’s duty may be minimized. Recent tort “reform” decisions have also limited the liability exposure of landowners where the dangerous condition they have allowed would be “open and obvious” to an objective, person acting with diligence.

These rules make it even more imperative that persons injured on the property of another seek experienced legal advice before discussing their claim with the landowner’s insurance representative.



Victim Status

“Trespassers”

If you control property, your responsibility for injuries suffered on the property is normally a function of the status of the person injured. In short, if the person injured is a trespasser, the landowner owes very little duty: basically, just the duty not to intentionally hurt the person, with a few exceptions for situations such as children who are drawn to the property by an “attractive nuisance”.

“Licensees”

If the person injured is tolerated on the property–say a social guest or a salesman–then the person controlling the property is normally responsible for dangerous conditions that the landowner actually knew about in advance. Under a recent decision, places such as churches fall into this social guest category; previously, they were analyzed more like a public building held open to “invited” visitors.

“Invitees”

If the injured person is actually a business invitee, that is, someone who enters the premises with permission for a business purpose, the person in charge of the land owes a duty to protect the victim from dangers the landowner knew of and also from dangers that the landowner should have known of.

This basic “status” determination of liability, focusing on the nature of the visitor, is subject to many exceptions and exclusions.

Distinguished from “active” negligence

It is important to note at the outset that premises liability must be distinguished from active negligence. “Premises liability” is an obligation to the injured visitor that arises from the control of the property and from hazardous conditions which exist on the property. Negligence based upon a particular unsafe act that causes injury is a different issue governed by different rules focused upon “reasonably safe” behavior or negligent behavior.

Governmental Immunity

One of the most basic exceptions to premises liability is for governmental immunity. There is a specific statute addressing when governments will be responsible for injuries suffered on governmental property. Basically, it excludes injuries suffered out of doors or caused by defective design. Only “maintenance” problems result in liability. {Keep in mind that a governmental actor may still be responsible for active negligence.} This doctrine of “sovereign immunity” is a holdover from the ancient days when English citizens could not sue the King in the courts that he had established and sponsored. There is little basis in modern thought or public policy for continuing to recognize this exception for legal responsibility, however, Michigan legislators have actually expanded governmental immunity in several situations during the past decade of “reforms”.


“Open and obvious”

The major exception to premises liability has in recent years centered upon the “open and obvious” doctrine. Historically, if a landowner knew of a potential hazard, he or she could meet the legal duty to visitors by warning them of the hazard. Such a warning was not required, however, if the condition was so obvious that it should have constituted its own warning. For example, if I had a neon sign at eye level, I would not need to warn visitors of the presence of the sign: the condition constituted its own warning and an additional “warning” would be both redundant and perhaps even a distraction.

In the past few years, this logical exception to the premises occupier’s duty to warn has been expanded by tort “reformers” to eliminate an entire set of duties to visitors. Instead of merely constituting an exception to the landowner’s duty to warn, today if a hazard is characterized as “open and obvious”, it may relieve the landowner of any duty to eliminate the hazard.

The description of “open and obvious” adopted by the “reforming” majority of the Supreme Court to exclude liability has focused upon the question of whether a reasonably diligent person “could have” discovered the dangerous condition if he or she had looked. The Court characterizes this as an “objective” test, meaning that it doesn’t take into account idiosyncracies of the situation or the observer/victim. The question of why a reasonable person would allow such an unsafe hazard to exist is not considered.

The adoption of this “objective” test and analysis has lead to many unfair and seemingly absurd outcomes. We will try to give the reader a flavor of some of the unexpected results of this “reform”.

Problematic examples of the operation of open and obvious

First, any problems or infirmities of the visitor are not considered. As a result, for example, when a blind woman fell in a mess that was unattended in a handicapped bathroom, she could not criticize or sue the premises holder because the mess “would have been open and obvious” to the average, normal [sighted] visitor. The dismissal of this case was upheld on appeal.

Second, the historical recognition that a visitor may be distracted by merchandising and advertising fully intended to distract the customer has been subverted. In the past, it was for a jury to decide whether a customer “would have seen” an unsafe condition, despite the merchandising distractions, for example, of the landowner. The Supreme Court appears to be rejecting that analysis and encouraging courts to dismiss claims if it can be argued that the visitor “could have” discovered the hazard–whether or not a reasonable person would have.

A similar analysis has been taken with regard to issues like irregular stairs, missing hand rails, snow and ice hazards and other dangerous conditions which, while theoretically “detectable” may not be reasonably safe. To give the casual reader a sense of how far the majority of the Supreme Court is willing to go to protect insurers, it is useful to consider a recent case from northern Michigan. A hotel had experienced icing on its roof and management decided to spray warm water on the roof to remove it. Over the course of a day or two of spraying, the warm water was allowed to turn the hotel parking lot into a skating rink. On the following day, a patron entering the hotel fell and fractured an ankle. A hotel staffer who came out to help the patron also fell and suffered injury. The hotel management then summoned an ambulance to help these victims of the hotel’s poor ice management. On arrival, one of the EMTs also fell and fractured a leg. The Supreme Court held that no one–not even the EMT–had a right to collect damages, because the parking lot ice was “open and obvious” to a theoretical winter resident of Michigan. The EMT’s perceived duty to respond and rescue injured people did not excuse her decision to voluntarily encounter the “open and obvious” danger.

The lower court had held that even if the icy condition of the parking lot was apparent to visitors, there were “special circumstances” that must be recognized –at least in the case of an EMT who has been summoned to the location, by the Defendant, to treat injury victims. The Supreme Court rejected this approach. For the most part, it has refused to recognize any reasonable “special circumstances”, except, perhaps, for an unguarded “30 foot deep pit” that presented an unreasonable risk of harm.

The higher court has also refused to recognize that poor lighting can play a role in an injury. In essence, all property defects are analyzed as they would appear in daylight–even if the injury actually occurred in darkness and inadequate artificial lighting. With respect to unsafe conditions, the Court has also held that if the injured person had any option to avoid the “dangerous” area, for example by staying indoors and not traversing the area or by using a different entrance, the landowner will not be responsible for injuries--even if they are caused by an admittedly unsafe condition.

Statutory Duty

About the only reliable exception to the Supreme Court’s “open and obvious” immunity from premises liability involves situations where the premises occupier is under a statutory legal duty to make the location safe. As a result, landlords in urban areas who must provide a reasonably safe apartment, for example, will still be held to the historical duty to eliminate unsafe conditions.

Nuisance

On occasion, the injury victim can invoke the doctrine of “nuisance” to establish premises liability. Because this doctrine is an old and independent cause of action, the Supreme Court has imposed some arcane rules to limit “nuisance” liability.

Liability for animals

Injuries involving dog bites, loose animals, or the service of alcohol are subject to very different rules, based upon statutes adopted to address those possible dangers. With respect to dog bites, for example, the dog owner is responsible for any bite that is not provoked by the injured victim. If the injury results from an attack or behavior that does not include “biting”, or if the victim prefers to seek redress for negligence, the person controlling the dog is judged by the broader, historical “reasonable care” standard.

Alcohol-related liability

In the case of alcohol, actions must be distinguished based on the age of the person drinking and whether he or she was served by a licensed alcohol seller. It is always both illegal and negligent to serve alcohol to a minor, however, this may result in a Pyrrhic victory for the victim because many homeowner policies exclude any coverage for injuries caused by an illegal act of the homeowner. Thus, causing injury by illegally giving alcohol to a minor may result in criminal prosecution but may not result in any compensation to the injured victim.

The Court has held that there is no legal responsibility for ordinary persons to avoid serving too much alcohol to an adult. Most of us would consider such conduct to be negligent–at least in extreme cases, however the Court has held that liability can never arise out of over-serving an adult social guest. If, on the other hand, the server is the holder of a dramshop [liquor] license, it can be held responsible for serving alcohol to a person who is already visibly intoxicated at the time of service. These have always been tough cases to prove, however, as most servers and the drinking companions of most drunks will rarely acknowledge that subject drinker was “visibly intoxicated”. To meet this standard, victims have historically relied upon blood alcohol testing to establish that someone was so intoxicated that their condition would have been apparent to a reasonable observer.

In a recent holding, the “reforming” members of the Supreme Court overturned several decades of decisions and held that a couple killed by a drunk driver could not prove that the drunk was visibly intoxicated solely by expert testimony based upon the drunk’s blood alcohol content. Although this form of testimony is widely recognized and accepted in criminal causes of action–indeed it is the sole basis of most criminal prosecutions and can establish fault “beyond a reasonable doubt,” the majority of the Supreme Court suggested that injured victims must also provide eyewitness testimony to document that the wrongdoer was visibly intoxicated. As you can well imagine, and as the Supreme Court certainly understood, in most cases the tavern server and the drunk’s companions will not admit that the drunk was actually drunk–let alone visibly drunk. The servers and companions typically do not want to take legal or moral responsibility for observing the drunk’s condition and failing to protect the public from his or her actions. Thus, this recent decision severely complicates the proof issues inherent in dramshop liability cases.

With respect to dramshop cases, it should also be noted that by statute, the drunk driver must be maintained as a party to any claim pursued against the tavern or seller. A release of the drunk automatically discharges the responsibility of the server–even if that was not the intent of the parties. This is one more reason why injury victims must be very careful in their dealings with individual insurers.

Medical co-pay

Most insurance policies have a “medical co-pay” provision under which a certain level of medical expense will be paid to persons injured on the insured’s property, regardless of fault or cause. Previously, injured persons enjoyed standing to secure payment of this benefit if they did not wish to pursue a fault claim against the premises owner. A fairly recent “reform” decision held that only the premise owner can request that this payment be made and that the injured visitor does not have “standing” as a third-party beneficiary, to enforce these contract provisions. This has virtually eliminated one modest source of medical expense payments for victims (although homeowners continue to pay the premium for coverage).

As may be apparent from reading about the current state of premises liability in Michigan, the Supreme Court’s invention of new defenses and emphasis on historical concepts only where they limit or exclude liability, have placed a premium on legal “gamesmanship”. It is foolhardy for an injury victim–or an attorney not well versed in this area–to attempt to manage a premises liability claim without specialized help.

Limitations on Recovery

As in all personal injury cases, there are limitations on recovery of which you should be aware.

Statutes of Limitation

Whenever the law grants a right to seek recovery for wrongdoing, it also places restrictions on how long the victim has in which to take legal action. If the victim delays too long in seeking compensation, he is said to have “slept on his rights” and his claim will not be heard. These limits are called “statutes of limitations” and they vary depending on the nature of the wrong that was committed. In many cases, there are other limitations on taking legal action, as well.

If you or a loved one has been injured, it is important that you promptly contact a qualified personal injury lawyer to investigate your rights so that you do not lose your right to recover damages.

More information about premises liability may be accessed in the Archives of the TOV Safety & Injury Blog (Premises liability), (Limitation periods)

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