Open and Obvious Danger
by Ron Davis
Visitors to shopping centers in Michigan would be wise to watch very carefully where they are walking. As one woman discovered, Michigan laws are designed to protect property owners when visitors fail to take precautions while encountering hazardous conditions that are “open and obvious.”
The woman was shopping at a Michigan Tanger Outlet Mall in suburban Detroit when she tripped and fell as she exited a tenant store, and she claimed that her resulting injury was caused by “dangerous conditions” there. She pointed out that at the spot she fell, there was a rise in the sidewalk that she could not see because all the sidewalk’s concrete slabs were the same color and texture.
At the time she fell, however, the weather was clear and the sidewalk was not wet or obstructed. But the sun had just set, and she claimed that the dusk made visibility difficult, especially since, she added, the tenant had not yet turned on its exterior lights.
The woman admitted, though, that had she looked down at the ground, she would have seen the raised sidewalk. She nevertheless argued that it was unreasonable for her to be looking down at the sidewalk as she exited the tenant store. That’s because, she added, the rise in the sidewalk was located six inches from the swing of the tenant’s door and she had to be mindful of other customers who were entering that store.
A Michigan court ruled that the woman did not exercise reasonable care to protect herself from conditions that were open and obvious. The woman appealed.
A Michigan appellate court agreed that the woman did not take precautions to prevent an accident of the type she suffered. Stated the judges, “Merely because a person fails to notice the [hazardous] conditions does not mean that the conditions were not open and obvious. Additionally, the sidewalk did not have special aspects that rendered it unreasonably dangerous. First, the raised sidewalk was not effectively unavoidable. The sidewalk’s dangerous condition occurred on one concrete slab located six inches from the tenant’s far left door. Customers need not have used this door because the tenant had four doors at this exit. Customers could also have avoided the raised sidewalk by stepping over it.... The sidewalk’s dangerous condition did not have special aspects that rendered it unreasonably dangerous.” (Garrison v. Dinnerware Plus Holdings, Inc., 2007 WL 101333 [Mich.App.])
Decision: January 2007
Published: March 2007