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More on "open and obvious"

        Victoria Engler took her daughter to the MacDonalds in Cadillac for lunch.  On the way in, she fell when she tripped over a gap between the floor tile and a grate in the entryway.  Ms. Engler said she observed the tile/grate area, but did not recognize that the gap was deep enough to constitute a trip hazard.  Her attorneys provided an affidavit from an engineering safety expert to support Engler's claim that the area was unsafe and "not readily visible upon casual inspection," which is the standard for application of the "open and obvious" doctrine.  Under the latter doctrine, the owner of property owes no duty to eliminate an obvious danger or to warn of it.  There are a few limited exceptions to this lack of duty.

        The Court of Appeals rejected Engler's testimony and that of her engineering expert.  It held that photographs of the area "demonstrate that the clearly visible".  On that basis, the Court held that a reasonable person would have identified the problem "on casual inspection" and foreseen the danger.   While the question of what dangers a reasonable person would recognize "on casual inspection" would appear to be a question of fact for the jury, the Supreme Court has held that "open and obvious" is a question of duty--and therefore a question of law--for the court to decide.  This leaves the Court of Appeals free to decide that a case should be dismissed based on the Judges' determination of what reasonable people would see or avoid. 

        We believe that in a less political atmosphere, this refusal to recognize the factual foundation for the open and obvious defense will (or would) be discarded.  In the meantime, ordinary people's day-to-day interactions with their environment will be gauged by (and second-guessed by) people who have the ability to make careful, studied analyses of the situations that injury victims were duty-bound to make only "casually". 

        There is a perverse and hypocritical aspect to this analysis that is fully divorced from real-world thinking.  Real people do not make in-depth investigations of every step that they take in public surroundings: they window-shop and they examine merchandise on display; they read advertising designed to attract their attention and conduct social and business intercourse while moving.  They react to the unexpected actions of others and at times their actions are influenced by lighting, black ice, unconscious assumptions about universal stair heights, and they make any number of additional reasonable decisions--decisions which architects and engineers have recognized for decades.   

          A simple public policy rejection of spurious premises liability claims would be far more intellectually honest than is a presumption that ordinary "reasonable" people will and do identify through casual inspection every possible hazard they may encounter.

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