Summary
In Blackwell, a dinner-party guest brought a premises-liability action against homeowners after she fell over an eight-inch drop-off from a hallway into a "darkened mudroom" of the home.
Summary of this case from Davis v. SCG Hotel Inv'rs Holdings ReitOpinion
No. 328929
03-14-2019
Susan BLACKWELL, Plaintiff-Appellant, v. Dean FRANCHI and Debra Franchi, Defendants-Appellees.
ON REMAND
This case returns to us on remand from the Supreme Court. The Court denied defendants’ request to review our holding reversing the trial court’s conclusion that the open and obvious danger doctrine barred plaintiff’s claim. The Court, however, remanded the case to us
for consideration of this issue it has not yet addressed: whether defendants owed plaintiff a duty to warn about the step because the plaintiff did not know or have reason to know of the condition and the risk involved, and it involved an unreasonable risk of harm, and the defendants should not have expected that a licensee like the plaintiff would discover or realize the danger .... [ Blackwell v. Franchi , 502 Mich. 918, 920, 914 N.W.2d 900 (2018) (quotation marks and citation omitted).]
Our prior opinion set forth the background to this case. Blackwell v. Franchi , 318 Mich. App. 573, 899 N.W.2d 415 (2017). The condition alleged by plaintiff is a nonvisible eight-inch floor level drop-off as one walks from the hallway in defendants’ home into the darkened mudroom of that home. Plaintiff alleges that the nonvisible change in floor level caused her to fall as she attempted to enter the mudroom and that she suffered injury as a result. We conclude that defendants had a general duty to plaintiff as a licensee and that whether defendants violated that duty by their specific actions or omissions is a question for the fact-finder.
Defendant does not concede that the drop-off was not visible; this presents a question of fact for the jury. But for purposes of this appeal we view the evidence in a light most favorable to plaintiff, the nonmoving party. Patrick v. Turkelson , 322 Mich. App. 595, 605, 913 N.W.2d 369 (2018). And deposition testimony supports plaintiff’s position that the drop-off was nonvisible.
The general duty owed by premises owners to licensees is well settled and, as the Supreme Court’s order observes, is properly articulated in Restatement Torts, 2d, § 342, p. 210, as follows:
A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved. [ Blackwell , 502 Mich. at 918-919, 914 N.W.2d 900 (quotation marks and citation omitted).]
The Supreme Court has previously provided guidance on how to analyze whether a particular action or omission violates a general standard of care or general duty. In Case v. Consumers Power Co. , 463 Mich. 1, 7, 615 N.W.2d 17 (2000), the Court explained that whether an alleged tortfeasor’s action violated that general standard of care is, in essence, a determination of the specific duty under the facts of the given case. In other words, when determining whether a defendant violated the general standard of care, the jury must determine what a defendant need do (or not do) to meet that general standard under the specific facts before it:
Ordinarily, it is for the jury to determine whether a defendant’s conduct fell below the general standard of care. Stated another way, the jury usually decides the specific standard of care that should have been exercised by a defendant in a given case. [ Id . (emphasis added).]
Case went on to quote the United States Supreme Court’s caution to courts that in performing their responsibility to define general duties, they should not define what a defendant’s specific duty was given the facts and circumstances of a particular case. That determination is left to the fact-finder:
"There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct
shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms "ordinary care," "reasonable prudence," and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state of affairs . [ Id . at 10, 615 N.W.2d 17, quoting Grand Trunk R. Co. v. Ives , 144 U.S. 408, 417, 12 S.Ct. 679, 36 L.Ed. 485 (1892) (emphasis added).]
Having said that, Case also acknowledged two exceptions to this principle: "[T]he court sometimes decides the specific standard of care if it is of the opinion ‘that all reasonable persons would agree or there is an overriding legislatively or judicially declared public policy ....’ " Id . at 7, 615 N.W.2d 17, quoting Moning v. Alfono , 400 Mich. 425, 438, 254 N.W.2d 759 (1977) (emphasis omitted).
We find no overriding legislative public policy that would require a court to determine the specific standard of care applicable in this case. None has been cited to us, and our own research has not revealed any. And in considering whether there is an overriding judicially declared public policy, we are mindful of the Supreme Court’s admonition that a determination of public policy "must be more than a different nomenclature for describing the personal preferences of individual judges ...." Terrien v. Zwit, 467 Mich. 56, 66, 648 N.W.2d 602 (2002). Undoubtedly, in any given case, some jurists might prefer that the specific standard of care be narrower or broader than that which a jury might determine. However, those personal preferences cannot be said to constitute public policy grounds to remove the jury’s power and responsibility to determine the specific standard of care. It is the trial court’s role to give proper instructions concerning the general standard of care, but it is the jury’s role to determine just what that general standard requires of a party under the specific facts and circumstances in a particular case. Case , 463 Mich. at 7, 615 N.W.2d 17 ; Moning , 400 Mich. at 438, 254 N.W.2d 759.
Given the lack of overriding policy concerns, we must next consider whether "all reasonable persons would agree" that the specific standard of care applicable under the facts of this case did not require defendants to warn plaintiff of the floor level change. Case , 463 Mich. at 7, 615 N.W.2d 17 (quotation marks and citation omitted). We hold that the answer to this question is "no" because a reasonable person could conclude that the specific standard of care in this case included giving a warning to plaintiff and other licensees that upon entering the mudroom they would encounter an eight-inch drop-off that was not visible. Put in the terms of the remand order, reasonable persons could disagree on whether the alleged condition, i.e., the nonvisible change in floor level, presented an unreasonable risk of harm, whether plaintiff knew or had reason to know of the condition and the risk involved, and whether defendants should have expected that plaintiff would not have discovered the hazard before falling victim to it.
As the Case Court recognized:
Clearly, "reasonable care under the circumstances" represents a sliding scale. The more severe the potential injury, the more resources a reasonable person will expend to try and prevent that injury. Similarly, the greater the likelihood that a severe injury will result, the greater the lengths a reasonable person will go to prevent it. This principle is widely recognized.11
This fundamental principle dates back to the earliest days of Michigan jurisprudence. As stated in Detroit & Milwaukee R. Co. v. Van Steinburg , 17 Mich. 99, 121 (1868), "[When] there is any uncertainty [as to negligence], it remains a matter of fact for the consideration of the jury[.]" (Emphasis added.) Even when the facts are not in dispute, it is for the jury, not the court, to determine the specific standard of care and whether it was breached.
It is a mistake ... to say ... that when the facts are undisputed the question of negligence is necessarily one of law. ... The fact of negligence is very seldom established by such direct and positive evidence that it can be taken from the consideration of the jury and pronounced upon as matter of law. On the contrary, it is almost always to be deduced as an inference of fact, from several facts and circumstances disclosed by the testimony, after their connection and relation to the matter in issue have been traced, and their force and weight considered. In such case the inference can not be made without the intervention of a jury, although all the witnesses agree in their statements, or there be but one statement which is consistent throughout. Presumptions of fact, from their very nature, are not strictly objects of legal science, like presumptions of law. [Id. at 122-123 (quotation marks and citation omitted).]
Accordingly, we again reverse the grant of summary disposition and remand to the circuit court for trial. Plaintiff may tax her costs as the prevailing party. MCR 7.219(A). We do not retain jurisdiction.
Gleicher, J., concurred with Shapiro, J. Gleicher, J. (concurring)
Susan Blackwell attended a holiday party in the Franchi home. Debra Franchi suggested that guests place their purses in the "mudroom." A dimly lit hallway led from the Franchis’ foyer to the mudroom. The mudroom itself was dark. Unbeknownst to Blackwell, there was an eight-inch drop between the hallway floor and that of the mudroom. Blackwell fell when she entered the mudroom. The question presented in our Supreme Court’s remand order is whether the Franchis had a duty to warn Blackwell of the step.
Restatement Torts, 2d, § 342, p. 210, establishes the duty of care the Franchis owed to Blackwell, a licensee. The duty has two components: a requirement that the landowner exercise reasonable care to make a known dangerous condition safe, and a duty to warn. Id . at § 342(b). A duty to warn arises when a landowner knows of a condition, "should realize that it involves an unreasonable risk of harm ... and should expect that [a licensee] will not discover or realize the danger ...." Id . at § 342(a). The lead opinion concludes that the evidence fulfills the Restatement requirements, necessitating that a jury determine whether the Franchis bear liability for the injuries Blackwell sustained when she fell. I concur and write separately to expand the lead opinion’s analysis and to respectfully respond to the dissent.
I
The Restatement’s provisions apply generally to premises-liability cases involving social guests and licensees. They have been adopted by our Supreme Court. Preston v. Sleziak , 383 Mich. 442, 453, 175 N.W.2d 759 (1970), overruled in part on other grounds by Stitt v. Holland Abundant Life Fellowship , 462 Mich. 591, 614 N.W.2d 88 (2000). In this sense, the duty applicable to this case is not subject to debate.
The Supreme Court’s remand order confines this Court’s consideration of the Franchis’ duty to the failure-to-warn component of § 342(a). Respectfully, this constraint strikes me as inconsistent with Justice Markman ’s dissent. Both Justice Markman and Judge Kelly urge that no duty existed here because Blackwell could and should have turned on the light, eliminating the danger of the drop-off. In other words, both dissenters contend that Blackwell could and should have made the premises reasonably safe for herself . Logically, however, if the relevant duty required a licensee to turn on the light despite her lack of awareness of the step, the landowner would bear the same duty—to turn on the light and make the room safe for invited guests directed to it. If the plaintiff bore a duty of care to make the room safe before she entered, it necessarily follows that the Franchis shared that duty, particularly since they had knowledge of the step. The component of Restatement Torts, 2d, § 342(b), requiring that a landowner "make the condition safe," I suggest, compels this conclusion. And because Justice Markman and Judge Kelly rest their dissents on this aspect of the rule, it merits more discussion than the remand order permits.
Legal duties such as § 342 incorporate broad policy choices. See Stitt , 462 Mich. 591, 614 N.W.2d 88 (holding that as a matter of policy, a noncommercial visitor is a licensee rather than an invitee), and MacDonald v. PKT, Inc. , 464 Mich. 322, 335, 628 N.W.2d 33 (2001) ("A premises owner’s duty is limited to responding reasonably to situations occurring on the premises because, as a matter of public policy, we should not expect invitors to assume that others will disobey the law."). Courts select the policies reflected in general statements about duty.
Whether a general statement about duty extends to a defendant’s specific conduct presents a question of fact for a jury. When a court has recognized that certain policy choices justify a duty and has defined its scope, a jury decides whether the duty has been breached. Professor Stephen Sugarman describes the distinction as follows:
[M]ore broadly, the difference between the doctrines comes to this. "Breach/No breach" involves the evaluation of a specific defendant. Given what she knew or should have known, is there some way that the community (i.e., the jury, or perhaps the judge) thinks she should have acted otherwise? "No duty," however, is not a matter of making an evaluation of the specific facts of this case. Rather, it is a global determination that, for some overriding policy reason, courts should not entertain causes of action for cases that fall into certain categories. [Sugarman, The Monsanto Lecture: Assumption of Risk , 31 Val. U. L. Rev. 833, 843 (1997).]
Courts make the rules governing duty, and juries apply them.
The narrow exception to this rule is that a court may summarily decide a specific duty question when reasonable minds cannot differ as to the application of a duty to a fact situation.
Restatement Torts, 2d, § 342 controls the duty analysis in this case and defines the duty’s parameters. Our job is to apply that standard to the facts of the case and to decide a narrow question: is there a reason that a jury should not hear this dispute? I agree with the lead opinion that questions of fact demand a jury’s resolution and that no other reason exists for a summary dismissal.
II
The evidence substantiates that the Franchis knew of the abrupt drop-off between the hallway and the mudroom and that the room was unlit during the party. Section 342 instructs that the remaining questions are whether the dark step involved an unreasonable risk of harm to a visitor unaware of it and whether the Franchis should have anticipated that Blackwell would not discover or realize the danger on her own. Affirmative answers mean that the Franchis bore a duty to warn Blackwell of the drop-off.
The lead opinion frames these questions as standard-of-care issues, explaining that whether a duty exists is just another way of asking whether the general standard of care has been breached. The dissent disapproves of that formulation. But general negligence principles support that the concept of duty encapsulates that of a standard of care. Here is Dean Prosser’s take:
"[D]uty" is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same—to conform to the legal standard of reasonable conduct in the light of the apparent risk. What the defendant must do, or must not do is a question of the standard of conduct required to satisfy the duty. The distinction is one of convenience only, and it must be remembered that the two are correlative, and one cannot exist without the other. [Prosser & Keeton, Torts (5th ed.), § 53, p. 356.]
While the dissent finds it "inexplicabl[e]" that the lead opinion "discusses at length defendants’ ‘standard of care,’ " the answers we seek are inextricably linked to that standard. Or, as Dean Prosser puts it, a duty "may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another." Id .
Nomenclature aside, the real issue is not whether the law imposed a duty on the Franchis as premises owners; the Restatement and the Supreme Court say that it did. Rather, under the remand order, our task is to determine whether under the circumstances of this case, a jury should decide whether the Franchis had a duty to warn Blackwell of the step before she walked into the dark mudroom. The dissent treats the duty question as one only of law. "[T]here was nothing to suggest that defendants should have known that plaintiff would not discover the step," the dissent insists, and therefore "[d]efendants were entitled to expect that [Blackwell] would be on the alert to discover conditions which involved risk to her." (Quotation marks, citation, and brackets omitted.) In the dissent’s view, this means that as a matter of law, the Franchis owed no duty. I respectfully disagree for three reasons.
First, the dissent misperceives the nature of the duty described in the Restatement. The duty of care owed to a social guest is quite minimal. A landowner need not closely inspect her premises for dangers or latent defects. Nor does the duty entail "ensuring" a guest’s safety, or even preparing a safe place for a visit. Rather, the Restatement imposes a duty on the landowner to use reasonable care when the landowner knows of a safety risk and can reasonably anticipate that a social guest does not. Essentially, the Restatement equally allocates risks. The landowner who knows of dangers in her home can protect herself from them. A landowner who provides social guests with that same knowledge conforms to the standard of care. Once the knowledge-sharing is accomplished, the guest and the landowner stand (or fall) on precisely the same factual and legal footings. Here, a simple warning of the step’s presence and nothing more would have sufficed.
The dissent would have social guests alone bear the legal responsibility for detecting conditions on the property that present "an unreasonable risk of harm."
The dissent suggests that the darkened step did not present an unreasonable risk of harm. I would agree that objectively, a well-lit eight-inch step is not dangerous. But an invisible eight-inch step poses an entirely different risk. Whether that risk is "unreasonable" constitutes a jury question. "If the proofs create a question of fact that the risk of harm was unreasonable, the existence of duty as well as breach become questions for the jury to decide." Bertrand v. Alan Ford, Inc. , 449 Mich. 606, 617, 537 N.W.2d 185 (1995).
According to the dissent, Blackwell should have "discover[ed]" the step without being warned about it. But this proposition eliminates the landowner’s duty entirely because it holds licensees responsible for any risk that the guest could possibly have avoided, including, in the example penned by Chief Justice MCCORMACK in her concurrence to the Supreme Court’s remand order, that of "an open shark tank" at the bottom of the mudroom drop-off. Blackwell v. Franchi , 502 Mich. 918, 921, 914 N.W.2d 900 (2018) ( MCCORMACK , J., concurring). Were such a tank installed just inside the entry to the dark mudroom, flicking on the light surely would have revealed it. In the dissent’s view, however, a potentially discoverable danger—even a shark tank—is no danger at all if a guest can possibly dodge it even without knowing that the danger exists.
The dissent’s second error relates inextricably to the first. Blackwell’s failure to turn on the light is relevant not to the Franchis’ duty, but to her own. This is called comparative negligence. The availability of the affirmative defense of comparative negligence in a premises liability case is well established. See Riddle v. McLouth Steel Prods. Corp. , 440 Mich. 85, 98, 485 N.W.2d 676 (1992). Should Blackwell have looked for a light before walking into the mudroom? Perhaps. That determination, however, depends on sorting and weighing the facts, including by comparing Blackwell’s negligence with that of the Franchis. Therefore, it belongs only to the jury.
Finally and most importantly, the dissent fails to distinguish between questions of fact and questions of law. The general duty applicable to this case is set forth in the Restatement. The dissent reasons that an "unremarkable" step could not have posed an "unreasonable" risk of harm, and therefore no specific duty of care existed in this case. It is certainly true that a normal, well-lit, eight-inch step is not objectively dangerous; objectively, the likelihood of injury for a person walking down a visible, everyday step approaches zero. But an invisible eight-inch step poses a different risk. We negotiate visible steps safely because we adjust our strides to account for the changes in riser heights. An unlit step escalates the risk of falling for the simple reason that we cannot anticipate and accommodate a change in tread level. Whether the risk posed by the unlit step into the mudroom was reasonable or unreasonable is a quintessential question of fact, particularly since the risk was known to the Franchis and could have been eliminated with minimal effort on their part. "If the proofs create a question of fact that the risk of harm was unreasonable, the existence of duty as well as breach become questions for the jury to decide." Bertrand v. Alan Ford, Inc. , 449 Mich. 606, 617, 537 N.W.2d 185 (1995).
A more expansive discussion of the reasonableness of risk may be found in Moning v. Alfono , 400 Mich. 425, 450, 254 N.W.2d 759 (1977). In Moning , Justice Charles Levin cited 2 Restatement Torts, 2d, § 291, for the proposition that "[t]he reasonableness of the risk depends on whether its magnitude is outweighed by its utility." Moning , 400 Mich. at 450. The social utility of a darkened step is zero.
--------
III
In Riddle , 440 Mich. at 96, 485 N.W.2d 676, the Supreme Court explained that "[o]nce a defendant’s legal duty is established, the reasonableness of the defendant’s conduct under that standard is generally a question for the jury." In a premises-liability case also involving a step, the Supreme Court subsequently echoed that approach: "If the jury determines that the risk of harm was unreasonable, then the scope of the defendant’s duty to exercise reasonable care extended to this particular risk." Bertrand , 449 Mich. at 617, 537 N.W.2d 185. Riddle and Bertrand limit the court’s role to determining whether a duty exists and to announcing its general contours. The jury figures out whether the specific risk is unreasonable and whether the landowner breached its duty of care. See M. Civ. JI 19.06 (incorporating these principles).
The lead opinion holds that reasonable people may disagree about whether an unwarned-of eight-inch drop-off into a darkened room presents an unreasonable risk of injury and whether Blackwell should have discovered that condition on her own. I agree that a jury may reasonably conclude that the step was invisible given that the room was dark and the hallway dimly lit, and that the drop-off was sudden enough to merit a warning. Neither of these propositions stretches credulity. A jury may also decide that Blackwell should have located and turned on the light before venturing into a dark and unknown place. Her theoretical ability to do so (we have no facts in this regard) does not extinguish the Franchis’ general duty to licensees. A reasonable jury could decide that due to the step and the darkness, it was not safe to invite Blackwell to put her purse in the mudroom without supplying a warning. Or a jury may adopt the opposite views.
The point is that whether this step from a dim hallway into a dark room presents an unreasonable risk of harm is not a question that judges should answer. As with any determination of "reasonableness" in a negligence case, we rely on juries to weigh the utility of a thing or of an actor’s conduct and to compare that benefit to the likelihood of injury and the cost or bother of doing things a different way. Where the answers could go either way, as here, judges are in no better position than juries to make the call. More importantly, our common law has appointed the jury as the umpire of these disputes. I continue to concur with the lead opinion’s conclusion that reversal of the grant of summary disposition is warranted.
K. F. Kelly, P.J. (dissenting).
Once again, I respectfully dissent.
In my previous dissent, I expressed consternation that an invited guest would enter a darkened room to confront what she claims to be unknown and unidentified dangers and then be heard to complain when the homeowners failed to ensure her safety. I approached the matter through the lens of whether the "danger" plaintiff confronted was open and obvious. Our Supreme Court has left intact the majority’s opposite conclusion that questions of fact remain as to whether the condition was open and obvious. Blackwell v. Franchi , 502 Mich. 918, 914 N.W.2d 900 (2018). However, the Court remanded the case for us to consider defendants’ alternative argument that no duty existed. In essence, the Supreme Court concluded that our previous opinions may have placed the cart before the horse by discussing the open and obvious danger without first ascertaining whether defendants owed plaintiff a duty in the instance.
The Supreme Court’s order sets forth the duty owed by premises owners to licensees as found in Restatement Torts, 2d, § 342, p. 210 :
A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn
the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved. [ Blackwell , 502 Mich. at 918-919, 914 N.W.2d 900 (quotation marks and citations omitted).]
The Court added:
If the defendants had no duty to warn of the condition because it did not " ‘involve[ ] an unreasonable risk of harm to [the plaintiff]’ " or was not one that the defendants " ‘should expect that [the plaintiff would] not discover,’ " the plaintiff’s prima facie negligence claim fails, regardless of the openness and obviousness of the condition. ... A question of fact as to the openness and obviousness of the step is irrelevant if there is no prima facie claim. There is no need to "attack[ ] the duty element" if the defendants owed no duty in the first place. [ Blackwell , 502 Mich. 919, 914 N.W.2d 900 (alterations in original).]
The Court noted that defendants had argued "that the particular condition complained of here—a single step in a dark room—was not a condition that a licensee would not know of or have reason to know of that posed an unreasonable risk of harm such that the defendants had a duty to warn." Id . To that end, the Supreme Court remanded
for consideration of this issue it has not yet addressed: whether defendants owed plaintiff a duty to warn about the step because the plaintiff did not know or have reason to know of the condition and the risk involved, and it involved an unreasonable risk of harm, and the defendants should not have expected that a licensee like the plaintiff would discover or realize the danger .... [ Id . at 920, 914 N.W.2d 900 (quotation marks omitted).]
On remand, the majority effectively leapfrogs over our only task—determining whether defendants owed plaintiff a duty—and inexplicably discusses at length defendants’ "standard of care." The majority relies on Case v. Consumers Power Co. , 463 Mich. 1, 7, 615 N.W.2d 17 (2000), for "guidance on how to analyze whether a particular action or omission violates a general standard of care or general duty." However, the case had nothing to do with premises liability. At issue in Case was whether the trial court erred when it instructed the jury that the defendant, a power company, was required to inspect and repair its electrical lines because electricity was inherently dangerous. The Court was asked to address the standard of care applicable to providers of electricity in stray-voltage cases. It determined that the "general standard of care is always ‘reasonable care,’ and it is for the jury to determine whether the defendant’s conduct in a given case fell below that standard." Case , 463 Mich. at 3, 615 N.W.2d 17.
The Case Court set forth the elements needed to establish a prima facie case of negligence: "(1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages." Id . at 6, 615 N.W.2d 17. "The disputed instruction in [ Case ] was intended to aid the jury in determining whether defendant breached its duty to plaintiffs to exercise ‘reasonable care.’ " Id. (emphasis added). Therefore, the issue in Case had nothing to do with whether the defendant owed the plaintiffs a duty in the first instance; rather, the issue was whether the defendant breached that duty. Case has no application here where our Supreme Court’s remand order specifically provides that "[t]here is no need to attack the duty element if the defendants owed no duty in the first place." Blackwell , 502 Mich. at 919, 914 N.W.2d 900 (quotation marks and citation omitted). In keeping with the Supreme Court’s remand order in this case, I would find that the step at issue did not give rise to a duty to warn and, absent a duty to warn, defendants cannot be held liable. The step is remarkable only because it was in a dark room. However, that does not mean that the step posed an unreasonable risk of harm to plaintiff or that defendants should have expected that plaintiff would not discover the step.
I do not mean to say that, as a matter of law, a homeowner will never owe a guest the duty to warn about a condition in a dark room, but, as Justice MCCORMACK aptly
The Restatement contemplates that a licensee will discover "conditions which are perceptible by his senses, or the existence of which can be inferred from facts within the licensee’s knowledge." Restatement, § 342, comment f , p. 212. Some conditions in a dark room will be more predictable than others .... The Restatement’s standard thus assigns the homeowner a duty commensurate with the hazard: a slipper on the floor in a dark mudroom is different than an open shark tank in that same dark room. I trust the Court of Appeals can evaluate based on the record where the 8-inch step falls on that continuum. [ Blackwell , 502 Mich. at 921, 914 N.W.2d 900 ( MCCORMACK , J., concurring).]
In reviewing the Supreme Court’s remand order, concurrence, and dissent, the issues to be addressed are whether the condition itself—an unremarkable step—posed (1) an unreasonable risk of harm or (2) whether defendants should have expected that plaintiff would not discover the step.
The majority appears to concede that the unremarkable step did not pose an unreasonable risk of harm. It focuses entirely on whether defendants should have anticipated that plaintiff was not in a position to discover the step. However, there was nothing to suggest that defendants should have known that plaintiff would not discover the step. Defendants "were entitled to expect that plaintiff would ‘be on the alert to discover conditions which involve[d] risk’ to her." Blackwell , 502 Mich. at 932, 914 N.W.2d 900 ( MARKMAN , C.J., dissenting), quoting Restatement, § 342, comment f , p. 212. I agree with Chief Justice MARKMAN ’s statement that "a social host is entitled to expect that social guests reasonably will discover for themselves commonplace potential dangers on the land without the assistance of an affirmative warning." Id. at 931, 914 N.W.2d 900. I fully agree with Chief Justice MARKMAN ’s conclusion:
I would reiterate today the principle of our common law that a social host may not be held liable for injuries suffered by a social guest from an allegedly dangerous condition of the land when the host had no reason to expect that the guest would reasonably fail to discover the condition. That is, hosts are not required to monitor or surveil their guests to ensure that they do not suffer injury from commonplace household conditions, conditions to which the hosts and their families themselves are ordinarily and routinely subject. Here, plaintiff was injured when she stepped into the darkened mudroom without turning on the light or otherwise ascertaining that it was safe to enter. In my judgment, the law should not hold defendants liable when they had no reason to expect that plaintiff—or any other guest—would fail to exercise their own reasonable precautions. [ Id . at 934, 914 N.W.2d 900.]
Far from being a comparative negligence analysis, the focus remains on the condition at issue (an unremarkable step) and defendants’ reasonable expectations.
I would affirm the trial court’s order on the alternative basis that defendants owed plaintiff no duty under the circumstances.
11 See Dembicer v. Pawtucket Cabinet & Builders Finish Co. , 58 RI 451, 455, 193 A. 622 (1937) ("The greater the appreciable danger, the greater the degree of care necessary to constitute due or ordinary care"); Wyrulec Co. v. Schutt, 866 P.2d 756, 762 (Wyo. 1993) ("[W]hat constitutes ordinary care increases as the danger increases. The concept of ordinary care accommodates all circumstances so that the degree of care varies with the circumstances."); Webb v. Wisconsin Southern Gas Co. , 27 Wis.2d 343, 350, 134 N.W.2d 407 (1965) ("The degree of effort, caution, or diligence required of a person to reach or attain the standard of ordinary care necessarily varies with the degree of hazard inherent under the circumstances").
[Case , 463 Mich. at 9 & n. 11, 615 N.W.2d 17.]