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Woman is able to reinstate previously dismissed premises liability case involving dark, crowded wet exit stairs

Krystal Lowrey fell and suffered fractures in her lower leg while leaving Woody's Diner--an Oakland County bar.  The owners argued that she could not sue because the dark, crowded, wet stairway was an "open and obvious" hazard that it owed no duty to address. The bar also claimed that there was no evidence to support that it was aware of the stairway issues, and that in any event, Lowery wasn't clear what caused her fall.  The trial judge looked at recent appellate decisions by the insurance-friendly courts and agreed; the judge granted summary disposition.  She appealed.  The Court of Appeals reinstated her claim.

The appellate judges noted that the lower court judge erred in granting summary disposition.  They pointed out that simply because two of the bar employees claimed to be unaware of the condition of the steps, that did not entirely negate notice to any of the employees.  It was evidence of lack of notice, but not dispositive, particularly given the location of bouncers near the stairway.  For that matter, the court noted that the bar did not adequately address what routine it followed to "inspect" the premises and to find and address unsafe conditions.  The Court took pains to remind the lower court that the duty owed by a commercial property owner is greater than the duty owed by an invited visitor.

With regard to the cause of the fall, the court pointed out that while the bar could argue that Lowrey's testimony was ambiguous, that credibility issue was for the jury to decide.  Lastly, the judges ruled that reasonable minds could differ with regard to whether an "average patron with ordinary intelligence...would have been able to discover the danger and risk..." and avoid them.  This, too, was a question for jurors.  While this is all historically accurate, we'll see if the case survives an appeal to the Michigan Supreme Court.  It has dismissed any number of legitimate, reasonable, meritorious premises liability claims in the past few years.  And we cannot think of one it has upheld.



Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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