Schedule a Consultation | Toll Free: 1-800-678-1307
Trial lawyers specializing in personal injury and civil litigation

Full appeals court will evaluate the interaction of merchandise display and "open and obvious" exception from premises liability

Normally, the owner of a commercial enterprise owes a "duty of reasonable care" to find and correct any unsafe condition on the property before a business visitor is injured.  For half a century in Michigan, the court and jury interpreting that duty were required to take into account the display of merchandise by a retailer, and its tendency (and design) to distract the shopping visitor.

About ten years ago, however, the Republican majority on Michigan's Supreme Court re-interpreted the "open and obvious" exception to premises liability, applying it not only to eliminate the need to warn of a hazard, but also to the duty to make reasonably safe an existing hazard.  Thus, the Court eliminated the right to jury trial and the comparative fault analysis normally applied in this setting,  by holding that if a hazard could have been identified by the customer "on casual inspection," the business owner owed NO DUTY to address the hazard--even if he or she was well aware of it and knew it to be a danger.

In two recent cases, Court of Appeals judges were called upon to consider whether the long-standing merchandise display rule should be taken into account in applying the "open and obvious" exception to premises liability.  This is a fairly important issue, since application of the "open and obvious" exception without considering the "distraction" factor results in overturning a long history of Michigan Supreme Court decisions.  One Court of Appeals panel held that even though the recent "open and obvious" expansion cases did not mention the pror merchandising display cases, the latter were over-ruled by the logic of the later cases.  A different panel reached the opposite result:  it concluded that even the current Republican Supreme Court majority had never applied "open and obvious" in this context, and that the lower courts could not assume that the longstanding caselaw was rejected without being mentioned. It pointed out, also, that the current majority had "backed off" on the most aggressive application of its "elimination of duty" arguments.

This week the full Court of Appeals decided to hear the latter case sitting "en banc," or as a full court, rather than leaving the final decision with a three-judge panel.  Given that partisan Republicans now outnumber the neutral and Democratic Party-nominated judges on that court, we can probably expect that the Court of Appeals will assume that the Supreme Court majority would apply "open and obvious" broadly to summarily dispose of injury cases.

It pays to recognize that the current Republican nomination process and the judicial election process in Michigan are dominated by Chamber of Commerce, insurance-oriented "special interest" money.  In recent controversies, Republicans have even threatened to eliminate the mandatory State Bar in a fight over the bar's request for transparency in judicial election funding.

The people making these decisions in Michigan today either strongly believe that even meritorious injury claims are a "drain on commerce," or are so beholden to their financial supporters that they consistently vote to restrict the recovery rights of injury victims.  It pays to take this bias into account when evaluating claims or anticipating future outcomes.  Many experienced lawyers believe that you can now predict case outcomes with virtual certainty, just by knowning which side the insurance interest is on.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
Fax: 231-929-7262