Opinion
No. 351890
09-17-2020
ELIZABETH BAKER, Plaintiff-Appellant, v. VISSER BROTHERS, INC., doing business as VISSER BROTHERS CONSTRUCTION, TWIN LAKES NURSERY, INC., LORMAX STERN DEVELOPMENT COMPANY LLC, and EAST BELTLINE DEVELOPMENT LLC, Defendants-Appellees.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Kent Circuit Court
LC No. 18-008184-NO Before: REDFORD, P.J., and BECKERING and M. J. KELLY, JJ. BECKERING, J. (concurring).
I concur with the majority opinion because my colleagues have faithfully applied the law to the facts of this case. I write separately only to point out that thanks to binding precedent creating the open and obvious doctrine, the premature outcome of this case is unjust. On a spring evening in May of 2017, Elizabeth Baker and her family pulled into a swanky, relatively new strip mall to enjoy a late pizza dinner. The sun was setting, and Elizabeth stepped out of the passenger seat to walk around the car and help her five-year old son get out of his five-point restraint seatbelt harness. Little did she know or expect that as she stepped onto the sidewalk, the metal tree grate flush to and effectively part of the sidewalk had a 9.5 inch circular hole in each of two corners, just the right size for her foot to enter and drop down into the gap. The hazardous condition shattered her right fibula, fractured bones in her foot, and caused ligament and soft tissue damage in her foot and ankle. Those grate holes, which were designed to house flush-to-the-pavement up lighting for the tree, had remained empty for approximately 17 months. They were in a place no one would expect to find holes in the ground. But thanks to the open and obvious doctrine, property owner East Beltline Development Company, LLC ("East Beltline Development") can leave those holes in place as a tripping hazard for their future patrons indefinitely.
As noted by the majority, "[i]n general, a premises possessor owes a duty to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land." Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). However, the open and obvious doctrine carves out any duty when it is determined that "an average person with ordinary intelligence would have discovered [the dangerous condition] upon casual inspection." Hoffner v Lanctoe, 492 Mich 450, 461; 821 NW2d 88 (2012). Yes, we all need to look where we are going. Yes, we should expect to encounter such things as potholes when walking on a road, because in Michigan we tend to have more potholes than residents. But I respectfully suggest that the duty to exercise reasonable care to protect one's invitees should include eliminating an unnecessary tripping hazard within a reasonable time once it is recognized by or brought to the attention of the landowner. Who is in the best position to protect unsuspecting patrons from a tripping hazard than the one in control of the dangerous condition? I suggest that true justice would entail a jury of one's peers determining whether East Beltline Development breached its duty of reasonable care to protect from an unreasonable risk of harm its invitee Elizabeth, a patron of one of its retail merchants, when it left two 9.5 inch holes in the sidewalk, where they are not expected and where they do not belong, for approximately 17 months. And that same jury could determine Elizabeth's comparative negligence. I respectfully suggest that the open and obvious doctrine be revisited so that the scales of justice can level the playing field for everyone and make Michigan a safer place.
/s/ Jane M. Beckering
/s/ Michael J. Kelly