"Open and obvious" exception to safe premises again rises to absurdity

Several years ago, the insurance-oriented Republican majority on Michigan's Supreme Court expanded the "open and obvious" exception to premises liability.  In theory, a landowner has always owed a duty to use reasonable care to make his premises safe for invited visitors.  One exception, historically, involved the duty to warn:  the possessor was not required to give warning about a condition that was "open and obvious."  It would make little sense to place a warning sign next to a glaringly obvious danger.  Nevertheless, the over-all test was one of balancing the reasonableness of the visitor with the reasonableness of the person owing a duty to maintain property.

The insurance-oriented judges completely changed that balance, essentially eliminating premises liabilty and the duty to correct hazardous conditions of which the owner is or should be aware.  The Republicans held that if any dangerous condition would be "visible on casual inspection" to an average person in daylight, the owner is immune from liability and owes no duty to correct the condition.  If it causes injury in the dark or to a blind person?  Still no duty, no liability.  "Black ice?"  If you spent one winter in Michigan you were told that invisible ice is "open and obvious" because you should have expected it.

This week we had another example of the absurd application of this exception to liability.  This decision is almost as incomprehensible as the case, several years ago, holding that a dangerous floor in the handicapped bathroom at Home Depot was "open and obvious" to a blind woman [resulting in the dismissal of her injury claim].It makes as much sense as the several cases holding that even a breach of the applicable building code does not render a commercial property owner liable for injuries that result if the illegal condition was "visible on casual inspection."

In this week's case, Hadi Nazal was waiting for a crane operator to load his tractor-trailer in the AutoAlliance International, Inc., yard when the crane operator rolled down his window and attempted to give him instruction.  Because of the engine noise in the yard, Nazal could not hear the crane operator and felt that he was being summoned to receive direction.  When he crossed the intervening snow-covered ground to approach the crane operator, he fell on ice, suffering injury.  He brought an action against A.I.I., arguing that it owed a duty to maintain the yard in  a reasonably safe condition for commercial visitors.  Nazal's attorneys argued that the overly-broad "open and obvious" exception to liability should not apply because Nazal had no option but to approach the crane operator:  his job required that he work with the defendant's employees to load his vehicle.

The Court of Appeals rejected this claim.  In short, it held that it was unreasonable for the on-duty employee to follow the direction of the landowner's agent and to cross snow-covered ground to communicate pursuant to his work duties.  It is suggested that this is a rule of reasonable conduct, as a matter of law, not subject to factual analysis.  We think most reasonable people would have acted just as Nazal did.  Try explaining to a boss that you sat in the truck of your cab, "too lazy"  to get up and follow the loader's instructions.