received by msc 11/27/2019 12:25:21 pm · michigan defense trial counsel’s brief amicus curiae...

STATE OF MICHIGAN

IN THE SUPREME COURT

FRANK ANTHONY SCOLA, Supreme Court No. 158903

Plaintiff-Appellant, Court of Appeals No. 338966

v Wayne County Circuit Court No. 15-002804-NI Hon. John A. Murphy

JP MORGAN CHASE BANK, NATIONAL ASSOCIATION, and JP MORGAN CHASE & CO.,

Defendants-Appellees,

and

KATHLEEN SCOLA and ESTATE OF JOHN BARROW BROWN (DECEASED), and CITY OF WAYNE, Jointly and Severally,

Defendants.

MICHIGAN DEFENSE TRIAL COUNSEL'S BRIEF AMICUS CURIAE

Respectfully submitted by,

COLLINS EINHORN FARRELL PC By:

Jonathan B. Koch (P80408) Counsel for Amicus Curiae MDTC

4000 Town Center, Floor 9 Southfield, MI 48075

(248) 355-4141 [email protected]

STATE OF MICHIGAN

IN THE SUPREME COURT_____________________________________________



Wayne County Circuit Courtv No. 15-002804-NI

Hon. John A. MurphyJP MORGAN CHASE BANK, NATIONALASSOCIATION, and JP MORGAN CHASE& CO.,


and

KATHLEEN SCOLA and ESTATE OFJOHN BARROW BROWN (DECEASED),and CITY OF WAYNE, Jointly and Severally,

Defendants.______________________________________________________________________________

MICHIGAN DEFENSE TRIAL COUNSEL’SBRIEF AMICUS CURIAE


COLLINS EINHORN FARRELL PCBy:

Jonathan B. Koch (P80408)Counsel for Amicus Curiae MDTC

4000 Town Center, Floor 9Southfield, MI 48075

(248) [email protected]

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

TABLE OF CONTENTS

INDEX OF AUTHORITIES iii

INDEX OF ATTACHMENTS vi

Order Appealed From and Jurisdictional Statement vii

Statement of Interest viii

Statement of Questions Presented ix

Statement of Facts 1

Standard of Review 1

Argument I - Gravamen 1

Claims arising from dangerous conditions on the land sound exclusively in premises liability, even if the injuries occur off the premises. Here, Scola alleges that Chase created a dangerous condition by failing to install warning signs at an exit from its parking lot to a one-way road. Those allegations implicate Chase's duties arising from the possession and control of its property. So Scola's claim sounds exclusively in premises liability under longstanding Michigan law 1

A. Premises-liability law applies to claims that arise out of alleged violations of a landowner's duty to maintain their property in a reasonably safe condition 1

B. Scola alleges that Chase negligently failed to put up signs or traffic control devices warning drivers that they were exiting onto a one-way street. In other words, he alleges that a dangerous condition on Chase's property caused his injuries. So his claim against Chase sounds exclusively in premises liability (and not ordinary negligence) 3

C. Michigan law recognize that claims like Scola's —where the plaintiff claims that a landowner's allegedly negligent maintenance of its property caused a car accident that occurred outside the premises—sound exclusively in premises liability 6

D. Conclusion 12

i i

TABLE OF CONTENTS

INDEX OF AUTHORITIES .................................................................................................... iii

INDEX OF ATTACHMENTS ................................................................................................. vi

Order Appealed From and Jurisdictional Statement ................................................................. vii

Statement of Interest ............................................................................................................... viii

Statement of Questions Presented ............................................................................................. ix

Statement of Facts .......................................................................................................................1

Standard of Review .....................................................................................................................1

Argument I - Gravamen..............................................................................................................1

Claims arising from dangerous conditions on the land sound exclusively in premisesliability, even if the injuries occur off the premises. Here, Scola alleges that Chasecreated a dangerous condition by failing to install warning signs at an exit from itsparking lot to a one-way road. Those allegations implicate Chase’s duties arisingfrom the possession and control of its property. So Scola’s claim sounds exclusively inpremises liability under longstanding Michigan law .......................................................1

A. Premises-liability law applies to claims that arise out of alleged violations of alandowner’s duty to maintain their property in a reasonably safe condition .............1

B. Scola alleges that Chase negligently failed to put up signs or traffic controldevices warning drivers that they were exiting onto a one-way street. In otherwords, he alleges that a dangerous condition on Chase’s property caused hisinjuries. So his claim against Chase sounds exclusively in premises liability (andnot ordinary negligence) ..................................................................................................3

C. Michigan law recognize that claims like Scola’s—where the plaintiff claims thata landowner’s allegedly negligent maintenance of its property caused a caraccident that occurred outside the premises—sound exclusively in premisesliability ...............................................................................................................................6

D. Conclusion ................................................................................................................. 12

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

Argument II - Open-and-Obvious Doctrine 13

The open-and-obvious doctrine has been a well-established part of Michigan premises-liability law for more than 20 years. Scola asks this Court to do away with it. But he fails to show that any of this Court's open-and-obvious opinions were wrongly decided, or that the Robinson factors favor overruling them. So stare decisis militates against getting rid of the open-and-obvious doctrine 13

A. Stare decisis militates against getting rid of the open-and-obvious doctrine in premises-liability cases 15

Conclusion 21

ii ii

Argument II – Open-and-Obvious Doctrine ............................................................................. 13

The open-and-obvious doctrine has been a well-established part of Michiganpremises-liability law for more than 20 years. Scola asks this Court to do away with it.But he fails to show that any of this Court’s open-and-obvious opinions werewrongly decided, or that the Robinson factors favor overruling them. So stare decisismilitates against getting rid of the open-and-obvious doctrine ..................................... 13

A. Stare decisis militates against getting rid of the open-and-obvious doctrine inpremises-liability cases ...................................................................................................... 15

Conclusion ................................................................................................................................ 21

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

INDEX OF AUTHORITIES

Cases

Altobelli v Hartman, 499 Mich 284; 884 NW2d 537 (2016) 1, 3

Bannigan v Woodbury, 158 Mich 206; 122 NW 531 (1909) 7, 9, 12

Beals v Walker, 416 Mich 469; 331 NW2d 700 (1982) 18

Bertrand v Alan Ford, Inc, 449 Mich 606; 537 NW2d 185 (1995) 3, 8

Botsford v Chase, 108 Mich 432; 66 NW 325 (18%) 2

Brown v Manistee Co Rd Comm, 452 Mich 354; 550 NW2d 215 (1996) 15

Brown v Nichols, 337 Mich 684; 60 NW2d 907 (1953) 10, 12

Buhalis v Trinity Continuing Care Servs, 296 Mich App 685; 822 NW2d 254 (2012), lv den 493 Mich 901; 822 NW2d 796 (2012) passim

Buhl v City of Oak Park, Mich ; NW2d (COA Dkt. No. 340359, August 29, 2019) 20

Caniff v Blanchard Navigation Co, 66 Mich 638; 33 NW 744 (1887) 19

City of Coldwater v Consumers Energy Company, 500 Mich 158; 895 NW2d 154 (2017) 16, 20

Cole v Henry Ford Health System, 497 Mich 881; 854 NW2d 717 (2014) 17

Compau v Pioneer Resource Co, LLC, 498 Mich 928; 871 NW2d 210 (2015) 12, 16

Fowler v Menard, 500 Mich 1025; 897 NW2d 166 (2017) 17

Frishett v State Farm Mut Auto Ins Co, 378 Mich 733 (1966) 18

Grimes v King, 311 Mich. 399; 18 NW2d 870 (1945) 7, 9, 12

Haksluoto v Mt Clemens Regional Med Ctr, 500 Mich 304; 901 NW2d 577 (2017) 17

Hoffner v Lanctoe, 492 Mich 450; 821 NW2d 88 (2012) 14, 15, 17, 20

Hohn v United States, 524 US 236; 118 S Ct 1969; 141 L Ed 2d 242 (1998) 15

iii iii

INDEX OF AUTHORITIES

Cases

Altobelli v Hartman, 499 Mich 284; 884 NW2d 537 (2016) .................................................. 1, 3

Bannigan v Woodbury, 158 Mich 206; 122 NW 531 (1909) ............................................ 7, 9, 12

Beals v Walker, 416 Mich 469; 331 NW2d 700 (1982) ............................................................ 18

Bertrand v Alan Ford, Inc, 449 Mich 606; 537 NW2d 185 (1995) ......................................... 3, 8

Botsford v Chase, 108 Mich 432; 66 NW 325 (1896)..................................................................2

Brown v Manistee Co Rd Comm, 452 Mich 354; 550 NW2d 215 (1996) ................................. 15

Brown v Nichols, 337 Mich 684; 60 NW2d 907 (1953) ..................................................... 10, 12

Buhalis v Trinity Continuing Care Servs,296 Mich App 685; 822 NW2d 254 (2012),lv den 493 Mich 901; 822 NW2d 796 (2012) ................................................................. passim

Buhl v City of Oak Park, ___ Mich ___; ___ NW2d ___(COA Dkt. No. 340359, August 29, 2019) ............................................................................... 20

Caniff v Blanchard Navigation Co, 66 Mich 638; 33 NW 744 (1887)....................................... 19

City of Coldwater v Consumers Energy Company,500 Mich 158; 895 NW2d 154 (2017) ............................................................................... 16, 20

Cole v Henry Ford Health System, 497 Mich 881; 854 NW2d 717 (2014) ............................... 17

Compau v Pioneer Resource Co, LLC, 498 Mich 928; 871 NW2d 210 (2015) .................... 12, 16

Fowler v Menard, 500 Mich 1025; 897 NW2d 166 (2017) ....................................................... 17

Frishett v State Farm Mut Auto Ins Co, 378 Mich 733 (1966) ................................................. 18

Grimes v King, 311 Mich. 399; 18 NW2d 870 (1945)...................................................... 7, 9, 12

Haksluoto v Mt Clemens Regional Med Ctr, 500 Mich 304; 901 NW2d 577 (2017) ................ 17

Hoffner v Lanctoe, 492 Mich 450; 821 NW2d 88 (2012)........................................ 14, 15, 17, 20

Hohn v United States, 524 US 236; 118 S Ct 1969; 141 L Ed 2d 242 (1998) ........................... 15

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

Holcomb v GWT, Inc, unpublished opinion of the Court of Appeals, issued March 1, 2016 (Docket No. 325410); 2016 WL 805635 v, 10

Janson v Sajewski Funeral Home, Inc, 486 Mich 934; 782 NW2d 201 (2010) 17

Kachudas v Invaders Self Auto Wash, Inc, 486 Mich 913; 781 NW2d 806 (2010) 3, 5, 12, 17

Laier v Kitchen, 266 Mich App 482; 702 NW2d 199 (2005) 11

Langen v Rushton, 138 Mich App 672; 360 NW2d 270 (1984) passim

Lugo v Ameritech Corp, Inc, 464 Mich 512; 629 NW2d 384 (2001) passim

Manning v Amerman, 229 Mich App 608; 582 NW2d 539 (1998), lv den 459 Mich 948; 616 NW2d 170 (1999) 2

McKim v Forward Lodging, Inc, 474 Mich 047; 706 NW2d 202 (2005) 17

McMaster v DTE Electric Co, Mich ; 933 NW2d 42 (Supreme Court Dkt. No. 159062, September 27, 2019) 20

Millikin v Walton Manor Mobile Home Park, Inc, 234 Mich App 490; 595 NW2d 152 (1999) 2

Nezworski v Mazanec, 301 Mich 43; 2 NW2d 912 (1942) 19

Ragnoli v North-Oakland-North Macomb Imaging, 500 Mich 967; 892 NW2d 377 (2017) 16

Riddle v McClouth Steel Products Corp, 440 Mich 85; 485 NW2d 676 (1992) passim

Robinson v City of Detroit, 462 Mich 439; 613 NW2d 307 (2000) passim

Rowland v Washtenaw County Rd Comm, 477 Mich 197; 731 NW2d 41 (2007) 15

Smith v Holmes, 54 Mich 104; 19 NW 767 (1884) 2

Smith v Peninsular Car Works, 60 Mich 501; 27 NW 662 (1886) 18

Stevens v Drekich, 178 Mich App 273; 443 NW2d 401 (1989) 11

Tebo v Havlik, 418 Mich 350; 343 NW2d 181 (1984) 17

Williams v Cunningham Drug Stores, Inc, 429 Mich 495; 418 NW2d 381 (1988) 19

iv iv

Holcomb v GWT, Inc, unpublished opinion of the Court of Appeals,issued March 1, 2016 (Docket No. 325410); 2016 WL 805635 ..........................................v, 10

Janson v Sajewski Funeral Home, Inc, 486 Mich 934; 782 NW2d 201 (2010) ......................... 17

Kachudas v Invaders Self Auto Wash, Inc, 486 Mich 913; 781 NW2d 806 (2010) ..... 3, 5, 12, 17

Laier v Kitchen, 266 Mich App 482; 702 NW2d 199 (2005) ..................................................... 11

Langen v Rushton, 138 Mich App 672; 360 NW2d 270 (1984) ..................................... passim

Lugo v Ameritech Corp, Inc, 464 Mich 512; 629 NW2d 384 (2001) ............................... passim

Manning v Amerman, 229 Mich App 608; 582 NW2d 539 (1998),lv den 459 Mich 948; 616 NW2d 170 (1999) ............................................................................2

McKim v Forward Lodging, Inc, 474 Mich 047; 706 NW2d 202 (2005) .................................. 17

McMaster v DTE Electric Co, ___ Mich ___; 933 NW2d 42(Supreme Court Dkt. No. 159062, September 27, 2019) ......................................................... 20

Millikin v Walton Manor Mobile Home Park, Inc,234 Mich App 490; 595 NW2d 152 (1999) ...............................................................................2

Nezworski v Mazanec, 301 Mich 43; 2 NW2d 912 (1942) ....................................................... 19

Ragnoli v North-Oakland-North Macomb Imaging,500 Mich 967; 892 NW2d 377 (2017) ..................................................................................... 16

Riddle v McClouth Steel Products Corp, 440 Mich 85; 485 NW2d 676 (1992) ............... passim

Robinson v City of Detroit, 462 Mich 439; 613 NW2d 307 (2000) ................................. passim

Rowland v Washtenaw County Rd Comm, 477 Mich 197; 731 NW2d 41 (2007) .................... 15

Smith v Holmes, 54 Mich 104; 19 NW 767 (1884).....................................................................2

Smith v Peninsular Car Works, 60 Mich 501; 27 NW 662 (1886) ........................................... 18

Stevens v Drekich, 178 Mich App 273; 443 NW2d 401 (1989) ............................................... 11

Tebo v Havlik, 418 Mich 350; 343 NW2d 181 (1984) .............................................................. 17

Williams v Cunningham Drug Stores, Inc, 429 Mich 495; 418 NW2d 381 (1988) .................. 19

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

Other Authorities

M Civ JI 19.09 10

SJI2d 19.09 10

Rules

MCR 7.301(E) 17

v v

Other Authorities

M Civ JI 19.09 .......................................................................................................................... 10

SJI2d 19.09 ............................................................................................................................... 10

Rules

MCR 7.301(E) .......................................................................................................................... 17

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

INDEX OF ATTACHMENTS

1. Holcomb v GVVT, Inc, unpublished opinion of the Court of Appeals, issued

March 1, 2016 (Docket No. 325410); 2016 WL 805635

vi vi

INDEX OF ATTACHMENTS

1. Holcomb v GWT, Inc, unpublished opinion of the Court of Appeals, issued

March 1, 2016 (Docket No. 325410); 2016 WL 805635

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

Order Appealed From and Jurisdictional Statement

Amicus curiae, Michigan Defense Trial Counsel (MDTC), agrees with the parties'

statements of the basis for this Court's appellate jurisdiction.

vii vii

Order Appealed From and Jurisdictional Statement

Amicus curiae, Michigan Defense Trial Counsel (MDTC), agrees with the parties’

statements of the basis for this Court’s appellate jurisdiction.

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

Statement of Interest

MDTC is a statewide association of attorneys whose primary focus is the

representation of defendants in civil proceedings. Established in 1979 to enhance and

promote the civil defense bar, MDTC accomplishes this by facilitating discourse among

and advancing the knowledge and skills of defense lawyers to improve the adversary

system of justice in Michigan. MDTC appears before this Court as a representative of

defense lawyers and their clients throughout Michigan, a significant portion of which

are potentially affected by the issues involved in this case1.

1 After reasonable investigation, MDTC believes that (a) no MDTC member who voted either in favor or against preparation of this brief, and no attorney in the law firm or corporation of such a MDTC member, represents a party to this litigation; (b) no MDTC member who is a representative of any party to this litigation participated in the authorship of this brief; and (c) no one other than MDTC, or its members who authored this brief and their law firms or employers, made a direct or indirect contribution, financial or otherwise, to the preparation or submission of this brief.

viii viii

Statement of Interest

MDTC is a statewide association of attorneys whose primary focus is the

representation of defendants in civil proceedings. Established in 1979 to enhance and

promote the civil defense bar, MDTC accomplishes this by facilitating discourse among

and advancing the knowledge and skills of defense lawyers to improve the adversary

system of justice in Michigan. MDTC appears before this Court as a representative of

defense lawyers and their clients throughout Michigan, a significant portion of which

are potentially affected by the issues involved in this case1.

1 After reasonable investigation, MDTC believes that (a) no MDTC member who votedeither in favor or against preparation of this brief, and no attorney in the law firm orcorporation of such a MDTC member, represents a party to this litigation; (b) no MDTCmember who is a representative of any party to this litigation participated in theauthorship of this brief; and (c) no one other than MDTC, or its members who authoredthis brief and their law firms or employers, made a direct or indirect contribution,financial or otherwise, to the preparation or submission of this brief.

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

Statement of Questions Presented

I.

Claims arising from dangerous conditions on the land sound exclusively in premises liability, even if the injuries occur off the premises. Here, Scola alleges that Chase created a dangerous condition by failing to install warning signs at an exit from its parking lot to a one-way road. Those allegations implicate Chase's duties arising from the possession and control of its property. Does Scola's claim sounds exclusively in premises liability under longstanding Michigan law?

The Court of Appeals answered, "Yes."

Plaintiff-appellant answers, "No."

Defendants-appellees answers, "Yes."

Amicus Curiae MDTC answers, "Yes." II.

The open-and-obvious doctrine has been a well-established part of Michigan premises-liability law for more than 20 years. Scola asks this Court to do away with it. But he fails to show that any of this Court's open-and-obvious opinions were wrongly decided, or that the Robinson factors favor overruling them. Does stare decisis militate against getting rid of the open-and-obvious doctrine?

The Court of Appeals answered, "Yes."

Plaintiff-appellant answers, "No."

Defendants-appellees answers, "Yes."

Amicus Curiae MDTC answers, "Yes."

ix

Statement of Questions Presented

I.

Claims arising from dangerous conditions on the landsound exclusively in premises liability, even if the injuriesoccur off the premises. Here, Scola alleges that Chasecreated a dangerous condition by failing to install warningsigns at an exit from its parking lot to a one-way road. Thoseallegations implicate Chase’s duties arising from thepossession and control of its property. Does Scola’s claimsounds exclusively in premises liability underlongstanding Michigan law?

The Court of Appeals answered, “Yes.”

Plaintiff-appellant answers, “No.”

Defendants-appellees answers, “Yes.”

Amicus Curiae MDTC answers, “Yes.”II.

The open-and-obvious doctrine has been a well-establishedpart of Michigan premises-liability law for more than 20years. Scola asks this Court to do away with it. But he failsto show that any of this Court’s open-and-obvious opinionswere wrongly decided, or that the Robinson factors favoroverruling them. Does stare decisis militate against gettingrid of the open-and-obvious doctrine?

The Court of Appeals answered, “Yes.”

Plaintiff-appellant answers, “No.”

Defendants-appellees answers, “Yes.”

Amicus Curiae MDTC answers, “Yes.”

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

Statement of Facts

MDTC relies on the Statements of Facts contained in defendants-appellees

JPMorgan Chase Bank, N.A., and JPMorgan Chase & Co.'s (collectively, "Chase")

Answer and Supplemental Answer to plaintiff-appellant Frank Anthony Scola's

Application for Leave to Appeal.

Standard of Review

MDTC relies on the Standard of Review contained in Chase's Answer and

Supplemental Answer to Scola's Application for Leave to Appeal.

Argument I - Gravamen

Claims arising from dangerous conditions on the land sound exclusively in premises liability, even if the injuries occur off the premises. Here, Scola alleges that Chase created a dangerous condition by failing to install warning signs at an exit from its parking lot to a one-way road. Those allegations implicate Chase's duties arising from the possession and control of its property. So Scola's claim sounds exclusively in premises liability under longstanding Michigan law.

A. Premises-liability law applies to claims that arise out of alleged violations of a landowner's duty to maintain their property in a reasonably safe condition.

It's well-settled that the gravamen of an action is determined by reading the

complaint as a whole and by looking "beyond mere procedural labels to determine the

exact nature of a claim." Altobelli v Hartman, 499 Mich 284, 299; 884 NW2d 537 (2016).

That is, to determine "what the grievance complained of is, and the manner in which

the wrong was inflicted, the whole count must be taken and construed together,"

including "Nile facts and circumstances alleged." Smith v Holmes, 54 Mich 104, 112; 19

1 1

Statement of Facts

MDTC relies on the Statements of Facts contained in defendants-appellees

JPMorgan Chase Bank, N.A., and JPMorgan Chase & Co.’s (collectively, “Chase”)

Answer and Supplemental Answer to plaintiff-appellant Frank Anthony Scola’s

Application for Leave to Appeal.

Standard of Review

MDTC relies on the Standard of Review contained in Chase’s Answer and

Supplemental Answer to Scola’s Application for Leave to Appeal.

Argument I - Gravamen

Claims arising from dangerous conditions on the landsound exclusively in premises liability, even if the injuriesoccur off the premises. Here, Scola alleges that Chasecreated a dangerous condition by failing to install warningsigns at an exit from its parking lot to a one-way road. Thoseallegations implicate Chase’s duties arising from thepossession and control of its property. So Scola’s claimsounds exclusively in premises liability underlongstanding Michigan law.

A. Premises-liability law applies to claims that arise out of alleged violations of alandowner’s duty to maintain their property in a reasonably safe condition.

It’s well-settled that the gravamen of an action is determined by reading the

complaint as a whole and by looking “beyond mere procedural labels to determine the

exact nature of a claim.” Altobelli v Hartman, 499 Mich 284, 299; 884 NW2d 537 (2016).

That is, to determine “what the grievance complained of is, and the manner in which

the wrong was inflicted, the whole count must be taken and construed together,”

including “[t]he facts and circumstances alleged.” Smith v Holmes, 54 Mich 104, 112; 19

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

NW 767 (1884); Botsford v Chase, 108 Mich 432, 438; 66 NW 325 (1896) (Determining "the

gravamen of the claim" by considering the "allegation[s] in the declaration").

"Courts are not bound by the labels that parties attach to their claims." Buhalis v

Trinity Continuing Care Servs, 296 Mich App 685, 693; 822 NW2d 254 (2012), lv den 493

Mich 901; 822 NW2d 796 (2012); see Manning v Amerman, 229 Mich App 608, 613; 582

NW2d 539 (1998), lv den 459 Mich 948; 616 NW2d 170 (1999) (concluding that to

determine the gravamen of a claim, courts "look beyond a plaintiff's choice of labels"

for a cause of action and examine "the true nature of the plaintiff's claim"). As a result,

a plaintiff cannot transform a premises-liability claim into an ordinary negligence claim

through "artful pleading." Millikin v Walton Manor Mobile Home Park, Inc, 234 Mich App

490, 497 n 4; 595 NW2d 152 (1999). Rather, as noted above, "the gravamen of an action is

determined by reading the complaint as a whole." Buhalis, 296 Mich App at 692 (citation

omitted).

In a premises-liability action, like any other negligence action, the plaintiff must

establish four elements: (1) duty; (2) breach; (3) cause; and (4) harm. Riddle v McClouth

Steel Products Corp, 440 Mich 85, 95, 96 n 10; 485 NW2d 676 (1992). The difference

between premises-liability and other types of negligence (i.e., ordinary negligence

claim) is that the duty element of a premises-liability claim arises out of defendant's

status as a landowner — i.e., the possession and control of land. Id. at 90, 95. As this

Court noted in Riddle, it is "well-settled in Michigan that a premises owner must

maintain his or her property in a reasonably safe condition and has a duty to exercise

due care to protect invitees from conditions that might result in injury." Id. at

2 2

NW 767 (1884); Botsford v Chase, 108 Mich 432, 438; 66 NW 325 (1896) (Determining “the

gravamen of the claim” by considering the “allegation[s] in the declaration”).

“Courts are not bound by the labels that parties attach to their claims.” Buhalis v

Trinity Continuing Care Servs, 296 Mich App 685, 693; 822 NW2d 254 (2012), lv den 493

Mich 901; 822 NW2d 796 (2012); see Manning v Amerman, 229 Mich App 608, 613; 582

NW2d 539 (1998), lv den 459 Mich 948; 616 NW2d 170 (1999) (concluding that to

determine the gravamen of a claim, courts “look beyond a plaintiff’s choice of labels”

for a cause of action and examine “the true nature of the plaintiff’s claim”). As a result,

a plaintiff cannot transform a premises-liability claim into an ordinary negligence claim

through “artful pleading.” Millikin v Walton Manor Mobile Home Park, Inc, 234 Mich App

490, 497 n 4; 595 NW2d 152 (1999). Rather, as noted above, “the gravamen of an action is

determined by reading the complaint as a whole.” Buhalis, 296 Mich App at 692 (citation

omitted).

In a premises-liability action, like any other negligence action, the plaintiff must

establish four elements: (1) duty; (2) breach; (3) cause; and (4) harm. Riddle v McClouth

Steel Products Corp, 440 Mich 85, 95, 96 n 10; 485 NW2d 676 (1992). The difference

between premises-liability and other types of negligence (i.e., ordinary negligence

claim) is that the duty element of a premises-liability claim arises out of defendant’s

status as a landowner—i.e., the possession and control of land. Id. at 90, 95. As this

Court noted in Riddle, it is “well-settled in Michigan that a premises owner must

maintain his or her property in a reasonably safe condition and has a duty to exercise

due care to protect invitees from conditions that might result in injury.” Id. at

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

90; Bertrand v Alan Ford, Inc, 449 Mich 606, 609-610; 537 NW2d 185 (1995) ("The invitor's

legal duty is to exercise reasonable care to protect invitees from an unreasonable risk of

harm caused by a dangerous condition of the land that the landowner knows or should

know the invitees will not discover, realize, or protect themselves against." (citations

and quotation marks omitted)

Because it is based on a landowner's duty to maintain their property in a safe

condition, premises liability law applies to injuries "caused by a dangerous condition

on the land." Bertrand, 449 Mich at 609-610. That is, "[i]f the plaintiff's injury arose from

an allegedly dangerous condition on the land, the action sounds in premises liability

rather than ordinary negligence." Kachudas v Invaders Self Auto Wash, Inc, 486 Mich 913,

913-914; 781 NW2d 806 (2010) (holding that because "the plaintiff ... alleg[ed] injury by

a condition on the land...his claim sounds exclusively in premises liability" (emphasis

added)). "[T]his is true even when the plaintiff alleges that the premises possessor

created the condition giving rise to the plaintiff's injury." Buhalis, 296 Mich App at 692.

B. Scola alleges that Chase negligently failed to put up signs or traffic control devices warning drivers that they were exiting onto a one-way street. In other words, he alleges that a dangerous condition on Chase's property caused his injuries. So his claim against Chase sounds exclusively in premises liability (and not ordinary negligence).

Here, Scola argues that the Court of Appeals erred by holding that his claim

against Chase sounds in premises liability. He bases that argument on his contention

that the dangerous condition that caused his injuries was the other car that was

involved in the accident. But, based on Scola's "entire claim" against Chase, that simply

isn't true. Altobelli, 499 Mich at 299.

3 3

90; Bertrand v Alan Ford, Inc, 449 Mich 606, 609-610; 537 NW2d 185 (1995) (“The invitor’s

legal duty is to exercise reasonable care to protect invitees from an unreasonable risk of

harm caused by a dangerous condition of the land that the landowner knows or should

know the invitees will not discover, realize, or protect themselves against.” (citations

and quotation marks omitted)

Because it is based on a landowner’s duty to maintain their property in a safe

condition, premises liability law applies to injuries “caused by a dangerous condition

on the land.” Bertrand, 449 Mich at 609-610. That is, “[i]f the plaintiff’s injury arose from

an allegedly dangerous condition on the land, the action sounds in premises liability

rather than ordinary negligence.” Kachudas v Invaders Self Auto Wash, Inc, 486 Mich 913,

913-914; 781 NW2d 806 (2010) (holding that because “the plaintiff … alleg[ed] injury by

a condition on the land…his claim sounds exclusively in premises liability” (emphasis

added)). “[T]his is true even when the plaintiff alleges that the premises possessor

created the condition giving rise to the plaintiff’s injury.” Buhalis, 296 Mich App at 692.

B. Scola alleges that Chase negligently failed to put up signs or traffic controldevices warning drivers that they were exiting onto a one-way street. In otherwords, he alleges that a dangerous condition on Chase’s property caused hisinjuries. So his claim against Chase sounds exclusively in premises liability(and not ordinary negligence).

Here, Scola argues that the Court of Appeals erred by holding that his claim

against Chase sounds in premises liability. He bases that argument on his contention

that the dangerous condition that caused his injuries was the other car that was

involved in the accident. But, based on Scola’s “entire claim” against Chase, that simply

isn’t true. Altobelli, 499 Mich at 299.

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

Scola's first amended complaint alleges that Chase had a duty "to post signs and

other traffic control devices" near the exit from its parking lot to "advis[e] the public"

that Michigan Avenue is a one-way street at that location.2 He also alleges that Chase

had a duty to "inspect and maintain that intersection with reasonable signage and other

traffic control devices and warnings."3 The basis for that duty is Scola's allegation that

Chase "assumed responsibility for placement of traffic controls, lane markings,

channelization, and all other matters relating to the design, construction, and

maintenance of its parking lot driveway where it meets West Michigan Avenue so that

entering West Michigan Avenue would be reasonably safe and convenient for public

travel."4

Scola alleges that Chase breached the duty that he believes it owed to him by

failing "to design, construct, and maintain the parking lot/driveway" in "reasonably

safe" condition.5 Specifically, he claims that the exit from Chase's parking lot to

Michigan Avenue "was an unsafe and defective condition" because it "lacked traffic

control signs and devices controlling the parking lot/driveway."6 Further, in his view,

Chase's "failure to consider and place the traffic control devices, signage, and

warnings... created a dangerous condition."7

2 Id. at 111146-47, Appellee's Appendix at 000120b. 3 Id. at ¶48, Appellee's Appendix at 000120b. 4 Scola's First Amended Complaint at ¶43, Appellee's Appendix at 000119b. 5 Id.at 1149-50, Appellee's Appendix at 000121b. 6 Id. at ¶45, Appellee's Appendix at 000120b. 7 Id. at ¶51, Appellee's Appendix at 000122b.

4 4

Scola’s first amended complaint alleges that Chase had a duty “to post signs and

other traffic control devices” near the exit from its parking lot to “advis[e] the public”

that Michigan Avenue is a one-way street at that location.2 He also alleges that Chase

had a duty to “inspect and maintain that intersection with reasonable signage and other

traffic control devices and warnings.”3 The basis for that duty is Scola’s allegation that

Chase “assumed responsibility for placement of traffic controls, lane markings,

channelization, and all other matters relating to the design, construction, and

maintenance of its parking lot driveway where it meets West Michigan Avenue so that

entering West Michigan Avenue would be reasonably safe and convenient for public

travel.”4

Scola alleges that Chase breached the duty that he believes it owed to him by

failing “to design, construct, and maintain the parking lot/driveway” in “reasonably

safe” condition.5 Specifically, he claims that the exit from Chase’s parking lot to

Michigan Avenue “was an unsafe and defective condition” because it “lacked traffic

control signs and devices controlling the parking lot/driveway.”6 Further, in his view,

Chase’s “failure to consider and place the traffic control devices, signage, and

warnings…created a dangerous condition.”7

2 Id. at ¶¶46-47, Appellee’s Appendix at 000120b.3 Id. at ¶48, Appellee’s Appendix at 000120b.4 Scola’s First Amended Complaint at ¶43, Appellee’s Appendix at 000119b.5 Id.at ¶¶49-50, Appellee’s Appendix at 000121b.6 Id. at ¶45, Appellee’s Appendix at 000120b.7 Id. at ¶51, Appellee’s Appendix at 000122b.

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

Based on the allegations in Scola's complaint as a whole (and the evidence

presented in this matter), the gravamen of his claim against Chase is that: (1) Chase had

a duty to maintain its property, including the exit from its parking lot to Michigan

Avenue, in a reasonably safe condition by installing warning signs or traffic control

devices; (2) Chase breached that duty by failing to install signs warning drivers that

they were exiting onto a one-way street, thereby creating a dangerous condition on their

property; and (3) Chase proximately caused his injuries by creating a dangerous

condition on its property in breach of its duty to maintain its parking lot exit in a

reasonably safe condition. In other words, even if he alleges that there were other

proximate causes (such as the negligence of his mother and the other driver), Scola

alleges that his injuries arose out of —and were proximately caused by —an "allegedly

dangerous condition on the land" that Chase created. See Kachudas, 486 Mich at 913-914.

So Scola's claim against Chase "sounds in premises liability rather than ordinary

negligence," even though he alleges that "the premises possessor" —i.e., Chase —

"created the condition giving rise to the plaintiff's injury." Id.; Buhalis, 296 Mich App at

692.

Accordingly, the Court of Appeals correctly concluded that Scola's claim against

Chase sounds exclusively in premises liability.

5 5

Based on the allegations in Scola’s complaint as a whole (and the evidence

presented in this matter), the gravamen of his claim against Chase is that: (1) Chase had

a duty to maintain its property, including the exit from its parking lot to Michigan

Avenue, in a reasonably safe condition by installing warning signs or traffic control

devices; (2) Chase breached that duty by failing to install signs warning drivers that

they were exiting onto a one-way street, thereby creating a dangerous condition on their

property; and (3) Chase proximately caused his injuries by creating a dangerous

condition on its property in breach of its duty to maintain its parking lot exit in a

reasonably safe condition. In other words, even if he alleges that there were other

proximate causes (such as the negligence of his mother and the other driver), Scola

alleges that his injuries arose out of—and were proximately caused by—an “allegedly

dangerous condition on the land” that Chase created. See Kachudas, 486 Mich at 913-914.

So Scola’s claim against Chase “sounds in premises liability rather than ordinary

negligence,” even though he alleges that “the premises possessor”—i.e., Chase—

”created the condition giving rise to the plaintiff’s injury.” Id.; Buhalis, 296 Mich App at

692.

Accordingly, the Court of Appeals correctly concluded that Scola’s claim against

Chase sounds exclusively in premises liability.

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

C. Michigan law recognizes that claims like Scola's —where the plaintiff claims that a landowner's allegedly negligent maintenance of its property caused a car accident that occurred outside the premises—sound exclusively in premises liability.

Scola argues that his claim against Chase doesn't sound in premises liability

because, in his view, "Michigan common law recognizes that personal injury claims like

[his] claim against Chase Bank are ordinary negligence claim."8 To support that

contention, Scola cites Langen v Rushton, 138 Mich App 672; 360 NW2d 270 (1984), in

which the Court of Appeals concluded that an owner of a shopping center had a duty

develop and maintain the shopping center, including the parking area and its exit and

entryways, so as not to injure a motorist traveling on an adjacent highway. According to

Scola, Langen stands for the proposition that a tort claim alleged against a possessor of

land sounds in ordinary negligence claim if "the danger posed to motorists like the

plaintiff was not on the defendant's land nor was the plaintiff injured on the

defendant's land."9 He's wrong.

Although Langen didn't use the phrase "premises liability," it also didn't use the

phrase "ordinary negligence." That isn't surprising because, as even Scola

acknowledges, the distinction between ordinary-negligence and premises-liability

claims didn't gain importance until Lugo v Ameritech Corp, Inc, 464 Mich 512; 629 NW2d

384 (2001), which this Court decided more than 15 years after Langen. And, the fact that

Langen referred to a "negligence" claim isn't dispositive because, as noted above,

8 Scola's Supplemental Brief at 16. 9 Scola's Supplemental Brief at 18

6 6

C. Michigan law recognizes that claims like Scola’s—where the plaintiff claimsthat a landowner’s allegedly negligent maintenance of its property caused acar accident that occurred outside the premises—sound exclusively inpremises liability.

Scola argues that his claim against Chase doesn’t sound in premises liability

because, in his view, “Michigan common law recognizes that personal injury claims like

[his] claim against Chase Bank are ordinary negligence claim.”8 To support that

contention, Scola cites Langen v Rushton, 138 Mich App 672; 360 NW2d 270 (1984), in

which the Court of Appeals concluded that an owner of a shopping center had a duty

develop and maintain the shopping center, including the parking area and its exit and

entryways, so as not to injure a motorist traveling on an adjacent highway. According to

Scola, Langen stands for the proposition that a tort claim alleged against a possessor of

land sounds in ordinary negligence claim if “the danger posed to motorists like the

plaintiff was not on the defendant’s land nor was the plaintiff injured on the

defendant’s land.”9 He’s wrong.

Although Langen didn’t use the phrase “premises liability,” it also didn’t use the

phrase “ordinary negligence.” That isn’t surprising because, as even Scola

acknowledges, the distinction between ordinary-negligence and premises-liability

claims didn’t gain importance until Lugo v Ameritech Corp, Inc, 464 Mich 512; 629 NW2d

384 (2001), which this Court decided more than 15 years after Langen. And, the fact that

Langen referred to a “negligence” claim isn’t dispositive because, as noted above,

8 Scola’s Supplemental Brief at 16.9 Scola’s Supplemental Brief at 18

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

premises-liability claims are negligence claims. Premises-liability claims employ the

same duty-breach-cause-harm analysis as any other negligence claim; they are just

focused on the duties arising out of a defendant's status as a landowner. Further, the

Court of Appeals' duty analysis in Langen centered on the duty of individuals who are

in possession and control of land to maintain it in reasonably safe condition—i.e., the

exact duty that forms the basis for a premises-liability negligence.

As noted above, Langen involved a situation where the plaintiff was involved in a

car accident with a vehicle that had just exited the defendant's shopping center. Langen,

138 Mich App at 674-676. The plaintiff sued the defendant for negligently maintaining

its premises in such a way that trees on its property prevented drivers who were exiting

the parking lot from seeing oncoming traffic. Id. at 675. The trial court concluded that

the defendant didn't owe the plaintiff a duty that would support such a claim. The

Court of Appeals disagreed and reversed. The members of the panel explained that,

based on the relevant public-policy considerations, "we think it wholly just to impose a

burden upon a defendant landowner to design, develop and maintain a parking area so

as to prevent an unreasonable risk of harm to motorists traveling on adjacent

highways." Id. at 678. But the court's decision wasn't based solely on public policy;

rather, the panel noted that "[o]ur courts have long held that a landowner must

maintain his or her own land so as not to injure users of an abutting street." Id. at 678-

679, citing Bannigan v Woodbury, 158 Mich 206, 207; 122 NW 531 (1909) and Grimes v

King, 311 Mich. 399; 18 NW2d 870 (1945).

7 7

premises-liability claims are negligence claims. Premises-liability claims employ the

same duty-breach-cause-harm analysis as any other negligence claim; they are just

focused on the duties arising out of a defendant’s status as a landowner. Further, the

Court of Appeals’ duty analysis in Langen centered on the duty of individuals who are

in possession and control of land to maintain it in reasonably safe condition—i.e., the

exact duty that forms the basis for a premises-liability negligence.

As noted above, Langen involved a situation where the plaintiff was involved in a

car accident with a vehicle that had just exited the defendant’s shopping center. Langen,

138 Mich App at 674-676. The plaintiff sued the defendant for negligently maintaining

its premises in such a way that trees on its property prevented drivers who were exiting

the parking lot from seeing oncoming traffic. Id. at 675. The trial court concluded that

the defendant didn’t owe the plaintiff a duty that would support such a claim. The

Court of Appeals disagreed and reversed. The members of the panel explained that,

based on the relevant public-policy considerations, “we think it wholly just to impose a

burden upon a defendant landowner to design, develop and maintain a parking area so

as to prevent an unreasonable risk of harm to motorists traveling on adjacent

highways.” Id. at 678. But the court’s decision wasn’t based solely on public policy;

rather, the panel noted that “[o]ur courts have long held that a landowner must

maintain his or her own land so as not to injure users of an abutting street.” Id. at 678-

679, citing Bannigan v Woodbury, 158 Mich 206, 207; 122 NW 531 (1909) and Grimes v

King, 311 Mich. 399; 18 NW2d 870 (1945).

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

After reviewing that precedent, the Court of Appeals stated that "[w]e cannot

subscribe to a rule of law which would relieve the modern urban landowner from

responsibility for foreseeable consequences caused by activity which poses an

unreasonable risk of harm." Id. at 680-681. It reasoned that the landowner's failure to

maintain an exit from a parking lot in reasonably safe condition created a dangerous

condition: "If, upon exiting from defendant's shopping center parking lot, the view of

the road is completely blocked and a motorist must enter the road before oncoming

traffic can be seen, the condition of the exitway presents a serious risk of harm that is

relatively foreseeable." Id. at 681. But, in concluding that the defendant showing-center

owner owed a duty to "minimize the possibility of accidents at parking lot exits or

entrances," the court didn't rely on the general duty that all members of the public have

to act reasonably or refrain from unreasonably injuring others.

Instead, the court focused on the defendant's duties arising out of its status as the

landowner of the shopping center: "Imposition of a duty upon defendant to develop

and maintain its shopping center, including the parking area, so as not to injure a

motorist traveling on adjacent highways is a logical outgrowth of the settled duty of a

landowner toward passing-by-foot travelers." Id. at 679 (emphasis added). In other words,

the duty that the defendant in Langen owed to the plaintiff arises out of the same source

as the duty that this Court would later hold is subject to the open-and-obvious

doctrine—possession and control of land. Riddle, 440 Mich at 90; Bertrand, 449 Mich at

609-610.

8 8

After reviewing that precedent, the Court of Appeals stated that “[w]e cannot

subscribe to a rule of law which would relieve the modern urban landowner from

responsibility for foreseeable consequences caused by activity which poses an

unreasonable risk of harm.” Id. at 680-681. It reasoned that the landowner’s failure to

maintain an exit from a parking lot in reasonably safe condition created a dangerous

condition: “If, upon exiting from defendant’s shopping center parking lot, the view of

the road is completely blocked and a motorist must enter the road before oncoming

traffic can be seen, the condition of the exitway presents a serious risk of harm that is

relatively foreseeable.” Id. at 681. But, in concluding that the defendant showing-center

owner owed a duty to “minimize the possibility of accidents at parking lot exits or

entrances,” the court didn’t rely on the general duty that all members of the public have

to act reasonably or refrain from unreasonably injuring others.

Instead, the court focused on the defendant’s duties arising out of its status as the

landowner of the shopping center: “Imposition of a duty upon defendant to develop

and maintain its shopping center, including the parking area, so as not to injure a

motorist traveling on adjacent highways is a logical outgrowth of the settled duty of a

landowner toward passing-by-foot travelers.” Id. at 679 (emphasis added). In other words,

the duty that the defendant in Langen owed to the plaintiff arises out of the same source

as the duty that this Court would later hold is subject to the open-and-obvious

doctrine—possession and control of land. Riddle, 440 Mich at 90; Bertrand, 449 Mich at

609-610.

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

It follows that, contrary to Scola's assertion, Langen stands for the proposition

that, with respect to claims like his—where a plaintiff alleges that a landowner

maintained the exits from its parking lots onto a public street in a purportedly

dangerous manner —the relevant duty flows from the possession and control of the

land and, thus, sounds exclusively in premises liability.

The authority that Langen relied on to support its holding confirms that the duty

it imposed arose out of the defendant's status as the possessor and controller of land.

For example, this Court's opinion in Grimes v King, 311 Mich 399, 18 NW2d 870 (1945),

involved a situation where coping stone, brick, and mortar fell from defendant's

building and killed a person walking by on a public sidewalk. In finding the defendant

liable for the decedent's death, this Court relied on various cases involving

unmaintained buildings that had resulted in injuries to people along the public

streets. Id. at 412-413. The Court explained that "it was the duty of one in control and

possession to keep the premises in a safe condition" so as to protect persons using the

adjacent public sidewalks and streets. Id. at 411-413, citing Bannigan v Woodbury, 158

Mich 206; 122 NW531 (1909).

Similarly, in Bannigan v Woodbury, 158 Mich 206; 122 NW 531 (1909), a window

glass fell from the third story of a building and injured a pedestrian. This Court held

that the unsafe condition of the windows as alleged in the complaint constituted a cause

of action for which somebody should be held responsible and that an individual who

was "lawfully in the possession of the real estate" and "[was] in charge and control of

the building" has a duty "to keep it in a safe condition, so as to protect travelers along

9 9

It follows that, contrary to Scola’s assertion, Langen stands for the proposition

that, with respect to claims like his—where a plaintiff alleges that a landowner

maintained the exits from its parking lots onto a public street in a purportedly

dangerous manner—the relevant duty flows from the possession and control of the

land and, thus, sounds exclusively in premises liability.

The authority that Langen relied on to support its holding confirms that the duty

it imposed arose out of the defendant’s status as the possessor and controller of land.

For example, this Court’s opinion in Grimes v King, 311 Mich 399, 18 NW2d 870 (1945),

involved a situation where coping stone, brick, and mortar fell from defendant’s

building and killed a person walking by on a public sidewalk. In finding the defendant

liable for the decedent’s death, this Court relied on various cases involving

unmaintained buildings that had resulted in injuries to people along the public

streets. Id. at 412-413. The Court explained that “it was the duty of one in control and

possession to keep the premises in a safe condition” so as to protect persons using the

adjacent public sidewalks and streets. Id. at 411-413, citing Bannigan v Woodbury, 158

Mich 206; 122 NW531 (1909).

Similarly, in Bannigan v Woodbury, 158 Mich 206; 122 NW 531 (1909), a window

glass fell from the third story of a building and injured a pedestrian. This Court held

that the unsafe condition of the windows as alleged in the complaint constituted a cause

of action for which somebody should be held responsible and that an individual who

was “lawfully in the possession of the real estate” and “[was] in charge and control of

the building” has a duty “to keep it in a safe condition, so as to protect travelers along

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

the streets." Id. at 207-208; see also Brown v Nichols, 337 Mich 684, 688; 60 NW2d 907

(1953) (Premises owners have a duty to maintain their properties so that they don't pose

a danger to individuals who are using the adjoining public streets and sidewalks).

Finally, Langen cited to the civil jury instructions, specifically SJI2d 19.09. See

Langen, 138 Mich App at 679 n 2. The current version of the model civil jury instructions

contained an identically worded analogue, M Civ JI 19.09, which appears in the chapter

containing instructions related to "Premises Liability" and covers the "Duty of

Possessor of Land, Premises, or Place of Business to Persons Traveling along Adjacent

Street or Way." That instruction states that "[a] possessor of [land / premises / a place

of business] has a duty to exercise ordinary care in maintaining [his / her] premises in a

reasonably safe condition in order to prevent injury to persons traveling along an

adjacent [street / or / sidewalk / or other / public way]." M Civ JI 19.09. While the

model jury instructions aren't mandatory or binding authority, they support the

conclusion that claims like Scola's implicate duties arising from possession and control

of land and, thus, sound in premises-liability.

Other cases involving purportedly dangerous conditions on the land that

allegedly caused car accidents off of the property further demonstrate that the Court of

Appeals colored well within the lines when it held that Scola's claims sounded in

premises liability. For example, in Holcomb v GVVT, Inc, unpublished opinion of the

Court of Appeals, issued March 1, 2016 (Docket No. 325410); 2016 WL 805635,10 a

° Attached as Attachment 1.

10 10

the streets.” Id. at 207-208; see also Brown v Nichols, 337 Mich 684, 688; 60 NW2d 907

(1953) (Premises owners have a duty to maintain their properties so that they don’t pose

a danger to individuals who are using the adjoining public streets and sidewalks).

Finally, Langen cited to the civil jury instructions, specifically SJI2d 19.09. See

Langen, 138 Mich App at 679 n 2. The current version of the model civil jury instructions

contained an identically worded analogue, M Civ JI 19.09, which appears in the chapter

containing instructions related to “Premises Liability” and covers the “Duty of

Possessor of Land, Premises, or Place of Business to Persons Traveling along Adjacent

Street or Way.” That instruction states that “[a] possessor of [land / premises / a place

of business] has a duty to exercise ordinary care in maintaining [his / her] premises in a

reasonably safe condition in order to prevent injury to persons traveling along an

adjacent [street / or / sidewalk / or other / public way].” M Civ JI 19.09. While the

model jury instructions aren’t mandatory or binding authority, they support the

conclusion that claims like Scola’s implicate duties arising from possession and control

of land and, thus, sound in premises-liability.

Other cases involving purportedly dangerous conditions on the land that

allegedly caused car accidents off of the property further demonstrate that the Court of

Appeals colored well within the lines when it held that Scola’s claims sounded in

premises liability. For example, in Holcomb v GWT, Inc, unpublished opinion of the

Court of Appeals, issued March 1, 2016 (Docket No. 325410); 2016 WL 805635,10 a

10 Attached as Attachment 1.

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

bicyclist who was hit by a car exiting a restaurant's parking lot sued the restaurant,

claiming that two trees planted at the intersection of the sidewalk and driveway

obscured his view of vehicles leaving the parking lot. The circuit court determined that

this obstruction of view was an open and obvious condition on the land and granted

summary disposition.

On appeal, just like Scola, the plaintiff "assert[ed] that his claims sounds in

ordinary negligence, not just premises liability." Id. at *2. The Court of Appeals

disagreed, concluding that the plaintiff's "claim sounded in premises liability alone." Id.

at *1. Citing Laier and Buhalis, the court explained that the plaintiff's injuries weren't

caused by the restaurant undertaking some "affirmative negligent action that directly

and swiftly caused an injury." Id. at *2-*3. Rather, the plaintiff merely "asserted that the

existing landscape obscured the line of sight between southbound travelling

pedestrians and vehicles exiting via the driveway." Id. at *3. So the plaintiff's claim that

the defendant "fail[ed] to adequately maintain the trees" sounded exclusively in

premises liability. Id. And, "since the visual instruction was open and obvious," the

Court of Appeals affirmed the trial court's grant of summary disposition. Id. at *3 *4, *9.

Stevens v Drekich, 178 Mich App 273; 443 NW2d 401 (1989) is also instructive.

There, the minor plaintiff was injured when the motorcycle on which he was riding

collided with another vehicle near an intersection. He sued defendant landowners,

claiming that a tree growing on the defendant's property obstructed the view of a yield

sign at the intersection where the accident occurred. Id. at 275-276. In affirming the trial

court's grant of summary disposition in favor of the defendants, the Court of Appeals

11 11

bicyclist who was hit by a car exiting a restaurant’s parking lot sued the restaurant,

claiming that two trees planted at the intersection of the sidewalk and driveway

obscured his view of vehicles leaving the parking lot. The circuit court determined that

this obstruction of view was an open and obvious condition on the land and granted

summary disposition.

On appeal, just like Scola, the plaintiff “assert[ed] that his claims sounds in

ordinary negligence, not just premises liability.” Id. at *2. The Court of Appeals

disagreed, concluding that the plaintiff’s “claim sounded in premises liability alone.” Id.

at *1. Citing Laier and Buhalis, the court explained that the plaintiff’s injuries weren’t

caused by the restaurant undertaking some “affirmative negligent action that directly

and swiftly caused an injury.” Id. at *2-*3. Rather, the plaintiff merely “asserted that the

existing landscape obscured the line of sight between southbound travelling

pedestrians and vehicles exiting via the driveway.” Id. at *3. So the plaintiff’s claim that

the defendant “fail[ed] to adequately maintain the trees” sounded exclusively in

premises liability. Id. And, “since the visual instruction was open and obvious,” the

Court of Appeals affirmed the trial court’s grant of summary disposition. Id. at *3-*4, *9.

Stevens v Drekich, 178 Mich App 273; 443 NW2d 401 (1989) is also instructive.

There, the minor plaintiff was injured when the motorcycle on which he was riding

collided with another vehicle near an intersection. He sued defendant landowners,

claiming that a tree growing on the defendant’s property obstructed the view of a yield

sign at the intersection where the accident occurred. Id. at 275-276. In affirming the trial

court’s grant of summary disposition in favor of the defendants, the Court of Appeals

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

first stated that "[u]nder the principles of premises liability, the right to recover for a

condition or defect of land or for an activity conducted on the land requires that the

defendant have legal possession and control of the premises." Id. The court explained

that there, unlike in this case, the allegedly dangerous condition that the defendant had

allegedly failed to maintain—the tree —wasn't located on the defendant's property;

rather, it was located in a public right-of-way abutting their home. Id. at 276. The panel

held that the plaintiffs' cause of action against the defendants sounded in premises-

liability, but was precluded because the defendants didn't have possession and control

over the public right of way. Id. at 277. Further, in response to the plaintiffs' negligence

claim involving the tree, the Court held that unless the landowner had committed some

act that increased the existing hazard or created a new hazard, the landowner would

not be liable. Id.

In sum, Michigan's appellate courts—including this Court in Grimes, Bannigan,

and Brown —have consistently treated off-premises injuries arising from conditions on

or of the property as premises-liability claims against the individual or entity in

possession and control of the property.

D. Conclusion

In sum, regardless of how Scola attempts to reframe his allegations, his claim

against Chase "arises from an allegedly dangerous condition on the land." Cornpau, 498

Mich at 928. Thus, with respect to Chase, this action sounds exclusively in premises

liability rather than ordinary negligence, despite Scola's allegations that Chase created

the dangerous condition. See Kachudas, 486 Mich at 913; Buhalis, 296 Mich App at 692.

12 12

first stated that “[u]nder the principles of premises liability, the right to recover for a

condition or defect of land or for an activity conducted on the land requires that the

defendant have legal possession and control of the premises.” Id. The court explained

that there, unlike in this case, the allegedly dangerous condition that the defendant had

allegedly failed to maintain—the tree—wasn’t located on the defendant’s property;

rather, it was located in a public right-of-way abutting their home. Id. at 276. The panel

held that the plaintiffs’ cause of action against the defendants sounded in premises-

liability, but was precluded because the defendants didn’t have possession and control

over the public right of way. Id. at 277. Further, in response to the plaintiffs’ negligence

claim involving the tree, the Court held that unless the landowner had committed some

act that increased the existing hazard or created a new hazard, the landowner would

not be liable. Id.

In sum, Michigan’s appellate courts—including this Court in Grimes, Bannigan,

and Brown—have consistently treated off-premises injuries arising from conditions on

or of the property as premises-liability claims against the individual or entity in

possession and control of the property.

D. Conclusion

In sum, regardless of how Scola attempts to reframe his allegations, his claim

against Chase “arises from an allegedly dangerous condition on the land.” Compau, 498

Mich at 928. Thus, with respect to Chase, this action sounds exclusively in premises

liability rather than ordinary negligence, despite Scola’s allegations that Chase created

the dangerous condition. See Kachudas, 486 Mich at 913; Buhalis, 296 Mich App at 692.

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

And that's true even though Scola's injuries occurred off of Chase's property. As a

result, the Court of Appeals properly applied black-letter Michigan premises-liability

law in its decision affirming the trial court's grant of summary disposition based on the

open-and-obvious doctrine.

Argument II - Open-and-Obvious Doctrine

The open-and-obvious doctrine has been a well-established part of Michigan premises-liability law for more than 20 years. Scola asks this Court to do away with it. But he fails to show that any of this Court's open-and-obvious opinions were wrongly decided, or that the Robinson factors favor overruling them. So stare decisis militates against getting rid of the open-and-obvious doctrine.

In addition to arguing that his claim against Chase sounds exclusively in

ordinary negligence, Scola argues that the Court of Appeals erred by affirming

summary disposition based on the open-and-obvious doctrine. In its response to Scola's

application, Chase argued that any danger posed by the lack of signage on its property

was open and obvious because a reasonably prudent person who was exiting its

parking lot would have observed upon casual inspection the one-way road markings,

traffic flow on Michigan Avenue, and the previously encountered "one way" and "no

left turn" signs on Wayne Road and avoided turning the wrong way onto Michigan

Avenue.11 MDTC agrees with and relies on Chase's argument regarding this aspect of

the Court of Appeals opinion, and will not address the issue further.

11 Chase's Response to Scola's Application for Leave to Appeal at 27-36.

13 13

And that’s true even though Scola’s injuries occurred off of Chase’s property. As a

result, the Court of Appeals properly applied black-letter Michigan premises-liability

law in its decision affirming the trial court’s grant of summary disposition based on the

open-and-obvious doctrine.

Argument II – Open-and-Obvious Doctrine

The open-and-obvious doctrine has been a well-establishedpart of Michigan premises-liability law for more than 20years. Scola asks this Court to do away with it. But he failsto show that any of this Court’s open-and-obvious opinionswere wrongly decided, or that the Robinson factors favoroverruling them. So stare decisis militates against gettingrid of the open-and-obvious doctrine.

In addition to arguing that his claim against Chase sounds exclusively in

ordinary negligence, Scola argues that the Court of Appeals erred by affirming

summary disposition based on the open-and-obvious doctrine. In its response to Scola’s

application, Chase argued that any danger posed by the lack of signage on its property

was open and obvious because a reasonably prudent person who was exiting its

parking lot would have observed upon casual inspection the one-way road markings,

traffic flow on Michigan Avenue, and the previously encountered “one way” and “no

left turn” signs on Wayne Road and avoided turning the wrong way onto Michigan

Avenue.11 MDTC agrees with and relies on Chase’s argument regarding this aspect of

the Court of Appeals’ opinion, and will not address the issue further.

11 Chase’s Response to Scola’s Application for Leave to Appeal at 27-36.

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

But Scola doesn't stop at claiming that the Court of Appeals applied the open-

and-obvious doctrine incorrectly—he attacks the existence of the doctrine itself. For

example, he argues that the doctrine "exonerates defendants from any potential liability

in similar such cases for failing to sue reasonable care to protect individuals from being

harmed by known dangerous conditions."12 In his view, "[s]uch unjust outcomes

unduly punish injured persons for failing to recognize potential hazards even though

such considerations are better left for the jury to assess when fault is apportioned."13

Scola also contends that the open-and-obvious doctrine "empowers judges to determine

what conditions pose a danger that is open and obvious when such fact questions are

better left to the jury to assess when fault is apportioned."14 As a result, Scola invites

this Court to do away with the open-and-obvious doctrine, or, as he puts it, "further

consider whether the traditional rules applied to premises liability claims in Michigan

have outlived their usefulness generally...."15

Scola's approach—getting rid of the open-and-obvious doctrine—would require

this Court to overrule Riddle, Lugo, Hoffner, and at least 18 other orders and opinions it

has issued, as well as more than 50 published Court of Appeals decisions. Doing so

would run afoul of stare decisis without any compelling reason to do so. So this Court

should reject Scola's invitation to dismantle the open-and-obvious doctrine.

12 Scola's Application for Leave to Appeal at 3 13 Id. 14 Id. at 9. 15 Id. at 10.

14 14

But Scola doesn’t stop at claiming that the Court of Appeals applied the open-

and-obvious doctrine incorrectly—he attacks the existence of the doctrine itself. For

example, he argues that the doctrine “exonerates defendants from any potential liability

in similar such cases for failing to sue reasonable care to protect individuals from being

harmed by known dangerous conditions.”12 In his view, “[s]uch unjust outcomes

unduly punish injured persons for failing to recognize potential hazards even though

such considerations are better left for the jury to assess when fault is apportioned.”13

Scola also contends that the open-and-obvious doctrine “empowers judges to determine

what conditions pose a danger that is open and obvious when such fact questions are

better left to the jury to assess when fault is apportioned.”14 As a result, Scola invites

this Court to do away with the open-and-obvious doctrine, or, as he puts it, “further

consider whether the traditional rules applied to premises liability claims in Michigan

have outlived their usefulness generally….”15

Scola’s approach—getting rid of the open-and-obvious doctrine—would require

this Court to overrule Riddle, Lugo, Hoffner, and at least 18 other orders and opinions it

has issued, as well as more than 50 published Court of Appeals decisions. Doing so

would run afoul of stare decisis without any compelling reason to do so. So this Court

should reject Scola’s invitation to dismantle the open-and-obvious doctrine.

12 Scola’s Application for Leave to Appeal at 313 Id.14 Id. at 9.15 Id. at 10.

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

A. Stare decisis militates against getting rid of the open-and-obvious doctrine in premises-liability cases.

Under the doctrine of stare decisis, "principles of law deliberately examined and

decided by a court of competent jurisdiction should not be lightly departed." Brown v

Manistee Co Rd Comm, 452 Mich 354, 365; 550 NW2d 215 (1996), overruled on other

grounds by Rowland v Washtenaw County Rd Comm, 477 Mich 197; 731 NW2d 41 (2007)

(citation and quotation marks omitted). While this Court shouldn't apply stare decisis

"mechanically," following it is "generally the preferred course because it promotes the

evenhanded, predictable, consistent development of legal principles, fosters reliance on

judicial decisions, and contributes to the actual and perceived integrity of the judicial

process." Robinson v City of Detroit, 462 Mich 439, 463; 613 NW2d 307 (2000), quoting

Hohn v United States, 524 US 236, 251; 118 S Ct 1969; 141 L Ed 2d 242 (1998).

When considering whether to overrule a prior opinion, this Court's first question

"should be whether the earlier decision was wrongly decided." Robinson, 462 Mich at

464. Here, there is no indication that Riddle, Lugo, Hoffner, or any of this Court's other

decisions addressing the open-and-obvious doctrine were wrongly decided. Indeed,

Scola doesn't argue to the contrary or provide any compelling legal basis for overruling

decades of this Court's premises-liability jurisprudence. Instead, he merely contends

that they reflect bad policy and have negatively affected premises-liability plaintiffs

(and their lawyers).

But even if any this Court's cases where it applied the open-and-obvious doctrine

to premises-liability claims were wrongly decided (they weren't), that "by itself, does

15 15

A. Stare decisis militates against getting rid of the open-and-obvious doctrinein premises-liability cases.

Under the doctrine of stare decisis, “principles of law deliberately examined and

decided by a court of competent jurisdiction should not be lightly departed.” Brown v

Manistee Co Rd Comm, 452 Mich 354, 365; 550 NW2d 215 (1996), overruled on other

grounds by Rowland v Washtenaw County Rd Comm, 477 Mich 197; 731 NW2d 41 (2007)

(citation and quotation marks omitted). While this Court shouldn’t apply stare decisis

“mechanically,” following it is “generally the preferred course because it promotes the

evenhanded, predictable, consistent development of legal principles, fosters reliance on

judicial decisions, and contributes to the actual and perceived integrity of the judicial

process.” Robinson v City of Detroit, 462 Mich 439, 463; 613 NW2d 307 (2000), quoting

Hohn v United States, 524 US 236, 251; 118 S Ct 1969; 141 L Ed 2d 242 (1998).

When considering whether to overrule a prior opinion, this Court’s first question

“should be whether the earlier decision was wrongly decided.” Robinson, 462 Mich at

464. Here, there is no indication that Riddle, Lugo, Hoffner, or any of this Court’s other

decisions addressing the open-and-obvious doctrine were wrongly decided. Indeed,

Scola doesn’t argue to the contrary or provide any compelling legal basis for overruling

decades of this Court’s premises-liability jurisprudence. Instead, he merely contends

that they reflect bad policy and have negatively affected premises-liability plaintiffs

(and their lawyers).

But even if any this Court’s cases where it applied the open-and-obvious doctrine

to premises-liability claims were wrongly decided (they weren’t), that “by itself, does

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

not necessarily mean that overruling it is appropriate." City of Coldwater v Consumers

Energy Company, 500 Mich 158, 172; 895 NW2d 154 (2017). Rather, when evaluating

whether to overrule a wrongly-decided opinion, this Court should consider three

factors: (1) "whether the decision defies practical workability," (2) "whether reliance

interests would work an undue hardship were the decision to be overruled," and (3)

"whether changes in the law or facts no longer justify the decision." Id. at 173. None of

those factors militate in favor of overruling the open-and-obvious decisions issued by

this Court.

The first factor —practical workability—weighs in favor of retaining the open-

and-obvious doctrine. While Scola contends that Michigan courts have struggled to

apply Riddle, Lugo, and their progeny in premises-liability cases, that simply isn't the

case. The Michigan Court of Appeals has issued hundreds of opinions in which it

applied the open-and-obvious doctrine to premises-liability claims.16 Yet this Court has

only issued opinions or precedential orders in just over 20 of those cases. And, where it

has reversed the Court of Appeals, it has often done so to hold that summary

disposition was proper.17

16 A Westlaw search revealed that there have been 782 opinions issued by the Michigan Court of Appeals that contain the phrases "open and obvious" and "premises liability." 17 See, e.g., Ragnoli v North-Oakland-North Macomb Imaging, 500 Mich 967; 892 NW2d 377 (2017) (Reversing the Court of Appeals and reinstating summary disposition because "[t]he trial court correctly held that...the presence of wintery weather conditions and ice on the ground elsewhere on the premises rendered the risk of a black ice patch open and obvious such that a reasonably prudent person would foresee the danger of slipping and falling in the parking lot" (quotation marks and citations omitted)); Compau v Pioneer Resource Co, LLC, 498 Mich 928; 871 NW2d 210 (2015) (Reversing the Court of Appeals and reinstating summary disposition because "[t]he railroad tie was

16 16

not necessarily mean that overruling it is appropriate.” City of Coldwater v Consumers

Energy Company, 500 Mich 158, 172; 895 NW2d 154 (2017). Rather, when evaluating

whether to overrule a wrongly-decided opinion, this Court should consider three

factors: (1) “whether the decision defies practical workability,” (2) “whether reliance

interests would work an undue hardship were the decision to be overruled,” and (3)

“whether changes in the law or facts no longer justify the decision.” Id. at 173. None of

those factors militate in favor of overruling the open-and-obvious decisions issued by

this Court.

The first factor—practical workability—weighs in favor of retaining the open-

and-obvious doctrine. While Scola contends that Michigan courts have struggled to

apply Riddle, Lugo, and their progeny in premises-liability cases, that simply isn’t the

case. The Michigan Court of Appeals has issued hundreds of opinions in which it

applied the open-and-obvious doctrine to premises-liability claims.16 Yet this Court has

only issued opinions or precedential orders in just over 20 of those cases. And, where it

has reversed the Court of Appeals, it has often done so to hold that summary

disposition was proper.17

16 A Westlaw search revealed that there have been 782 opinions issued by the MichiganCourt of Appeals that contain the phrases “open and obvious” and “premises liability.”17 See, e.g., Ragnoli v North-Oakland-North Macomb Imaging, 500 Mich 967; 892 NW2d 377(2017) (Reversing the Court of Appeals and reinstating summary disposition because“[t]he trial court correctly held that…the presence of wintery weather conditions andice on the ground elsewhere on the premises rendered the risk of a black ice patch openand obvious such that a reasonably prudent person would foresee the danger ofslipping and falling in the parking lot” (quotation marks and citations omitted));Compau v Pioneer Resource Co, LLC, 498 Mich 928; 871 NW2d 210 (2015) (Reversing theCourt of Appeals and reinstating summary disposition because “[t]he railroad tie was

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

To support his contention that there is widespread confusion about how to apply

the open-and-obvious doctrine, Scola points to this Court's order denying leave to

appeal in Fowler v Menard, 500 Mich 1025; 897 NW2d 166 (2017). In his view, by denying

leave to appeal in Fowler, this Court "added to existing confusion over how such cases

should be analyzed."18 But that simply isn't true. The Court of Appeals' opinions in

both this case and Fowler were unpublished and, thus, non-binding. Further, Scola's

speculation about the meaning of the denial order in Fowler is misplaced because

"denials of leave to appeal do not establish a precedent." Haksluoto v Mt Clemens

Regional Med Ctr, 500 Mich 304, 313 n 3; 901 NW2d 577 (2017); see also MCR

7.301(E) ("The reasons for denying leave to appeal ... are not to be regarded as

precedent."); Tebo v Havlik, 418 Mich 350, 363 n 2, 343 NW2d 181 (1984) (opinion

by BRICKLEY, J.) ("A denial of leave to appeal has no precedential value."); Frishett v

an allegedly dangerous condition on the land, but it was open and obvious. Thus, the plaintiffs' recovery is barred by the open and obvious danger doctrine."); Cole v Henry Ford Health System, 497 Mich 881; 854 NW2d 717 (2014) (Reversing the Court of Appeals and remanding for entry of summary disposition because "[a] reasonably prudent person would foresee the danger of icy conditions on the mid-winter night the plaintiff's accident occurred."); Hoffner v Lanctoe, 492 Mich 450, 481-482; 821 NW2d 88 (2012) (Reversing and remanding for entry of summary disposition under the open-and-obvious doctrine); Janson v Sajewski Funeral Home, Inc, 486 Mich 934, 935; 782 NW2d 201 (2010) (Reversing the Court of Appeals and reinstating the trial court's grant of summary disposition based on the open-and-obvious nature of the condition at issue); Kachudas v Invaders Self Auto Wash, Inc, 486 Mich 913, 913-914; 781 NW2d 806 (2010) (Reversing the Court of Appeals and reinstating summary disposition because "the circuit court properly ruled that the alleged hazardous condition was open and obvious."); McKim v Forward Lodging, Inc, 474 Mich 047; 706 NW2d 202 (2005) (Reversing the Court of Appeals and reinstating summary disposition because "the hazard giving rise to plaintiff's injuries was open and obvious, and there was no special aspect present."). 18 Scola's Application for Leave to Appeal at x.

17 17

To support his contention that there is widespread confusion about how to apply

the open-and-obvious doctrine, Scola points to this Court’s order denying leave to

appeal in Fowler v Menard, 500 Mich 1025; 897 NW2d 166 (2017). In his view, by denying

leave to appeal in Fowler, this Court “added to existing confusion over how such cases

should be analyzed.”18 But that simply isn’t true. The Court of Appeals’ opinions in

both this case and Fowler were unpublished and, thus, non-binding. Further, Scola’s

speculation about the meaning of the denial order in Fowler is misplaced because

“denials of leave to appeal do not establish a precedent.” Haksluoto v Mt Clemens

Regional Med Ctr, 500 Mich 304, 313 n 3; 901 NW2d 577 (2017); see also MCR

7.301(E) (“The reasons for denying leave to appeal ... are not to be regarded as

precedent.”); Tebo v Havlik, 418 Mich 350, 363 n 2, 343 NW2d 181 (1984) (opinion

by BRICKLEY, J.) (“A denial of leave to appeal has no precedential value.”); Frishett v

an allegedly dangerous condition on the land, but it was open and obvious. Thus, theplaintiffs’ recovery is barred by the open and obvious danger doctrine.”); Cole v HenryFord Health System, 497 Mich 881; 854 NW2d 717 (2014) (Reversing the Court of Appealsand remanding for entry of summary disposition because “[a] reasonably prudentperson would foresee the danger of icy conditions on the mid-winter night theplaintiff’s accident occurred.”); Hoffner v Lanctoe, 492 Mich 450, 481-482; 821 NW2d 88(2012) (Reversing and remanding for entry of summary disposition under the open-and-obvious doctrine); Janson v Sajewski Funeral Home, Inc, 486 Mich 934, 935; 782 NW2d201 (2010) (Reversing the Court of Appeals and reinstating the trial court’s grant ofsummary disposition based on the open-and-obvious nature of the condition at issue);Kachudas v Invaders Self Auto Wash, Inc, 486 Mich 913, 913-914; 781 NW2d 806 (2010)(Reversing the Court of Appeals and reinstating summary disposition because “thecircuit court properly ruled that the alleged hazardous conditionwas open and obvious.”); McKim v Forward Lodging, Inc, 474 Mich 047; 706 NW2d 202(2005) (Reversing the Court of Appeals and reinstating summary disposition because“the hazard giving rise to plaintiff’s injuries was open and obvious, and there was nospecial aspect present.”).18 Scola’s Application for Leave to Appeal at x.

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

State Farm Mut Auto Ins Co, 378 Mich 733, 734 (1966) (When denying leave to appeal,

"the Supreme Court expresses no present view with respect to the legal questions dealt

with in the opinion of the Court of Appeals.").

As a result, there is simply no basis for this Court to conclude that Michigan's

bench and bar are struggling to apply this Court's premises-liability precedent. So the

open-and-obvious doctrine doesn't defy practical workability.

The second factor —reliance interests—also weighs against overruling this

Court's open-and-obvious precedent. This factor focuses on "whether the previous

decision has become so embedded, so accepted, so fundamental, to everyone's

expectations that to change it would produce not just readjustments, but practical real-

world dislocations." Robinson, 462 Mich at 466. That is exactly the case with this Court's

open-and-obvious precedent. As noted above, the open-and-obvious doctrine has been

part of this Court's premises-liability jurisprudence since it decided Riddle in 1992. And

Riddle didn't create the doctrine out of whole cloth. In Riddle, this Court noted that "[i]t

is well-settled in Michigan that a premises owner must maintain his or her property in a

reasonably safe condition and has a duty to exercise due care to protect invitees from

conditions that might result in injury," including "hidden or latent defects." Id. at 90-91,

citing Beals v Walker, 416 Mich 469, 480; 331 NW2d 700 (1982), Smith v Peninsular Car

Works, 60 Mich 501, 504; 27 NW 662 (1886), and Samuelson v Cleveland Iron Mining Co, 49

Mich 164; 13 NW 499 (1882).

However, the Riddle Court stressed that the duty wasn't unlimited, citing several

prior Supreme Court cases in support. For example, in Caniff v Blanchard Navigation Co,

18 18

State Farm Mut Auto Ins Co, 378 Mich 733, 734 (1966) (When denying leave to appeal,

“the Supreme Court expresses no present view with respect to the legal questions dealt

with in the opinion of the Court of Appeals.”).

As a result, there is simply no basis for this Court to conclude that Michigan’s

bench and bar are struggling to apply this Court’s premises-liability precedent. So the

open-and-obvious doctrine doesn’t defy practical workability.

The second factor—reliance interests—also weighs against overruling this

Court’s open-and-obvious precedent. This factor focuses on “whether the previous

decision has become so embedded, so accepted, so fundamental, to everyone’s

expectations that to change it would produce not just readjustments, but practical real-

world dislocations.” Robinson, 462 Mich at 466. That is exactly the case with this Court’s

open-and-obvious precedent. As noted above, the open-and-obvious doctrine has been

part of this Court’s premises-liability jurisprudence since it decided Riddle in 1992. And

Riddle didn’t create the doctrine out of whole cloth. In Riddle, this Court noted that “[i]t

is well-settled in Michigan that a premises owner must maintain his or her property in a

reasonably safe condition and has a duty to exercise due care to protect invitees from

conditions that might result in injury,” including “hidden or latent defects.” Id. at 90-91,

citing Beals v Walker, 416 Mich 469, 480; 331 NW2d 700 (1982), Smith v Peninsular Car

Works, 60 Mich 501, 504; 27 NW 662 (1886), and Samuelson v Cleveland Iron Mining Co, 49

Mich 164; 13 NW 499 (1882).

However, the Riddle Court stressed that the duty wasn’t unlimited, citing several

prior Supreme Court cases in support. For example, in Caniff v Blanchard Navigation Co,

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

66 Mich 638, 647; 33 NW 744 (1887), the Court denied a cause of action to a plaintiff who

fell through a hatch on a boat because he had reason to know that the hatch was open.

Similarly, in Nezworski v Mazanec, 301 Mich 43, 61; 2 NW2d 912 (1942), this Court

concluded that premises owners owe a duty to warn invitees of "hidden dangers"

related to conditions on their land —i.e., if the dangers are known or obvious, there is no

duty to warn. Finally, the Riddle Court noted that in Williams v Cunningham Drug Stores,

Inc, 429 Mich 495, 500; 418 NW2d 381 (1988), this Court "held that a possessor of land

does not owe a duty to protect his invitees where conditions arise from which an

unreasonable risk cannot be anticipated or of dangers that are so obvious and apparent

that an invitee may be expected to discover them himself." Riddle, 440 Mich at 94. Based

on that precedent, this Court held "that the 'no duty to warn of open and obvious

dangers' rule remains viable in Michigan." Id. at 99-100.

In the 27 years since Riddle, the open-and-obvious doctrine has become firmly

entrenched in Michigan's premises-liability jurisprudence. The doctrine has been

applied by this Court in more than 20 decisions and by the Court of Appeals in more

than 50 published decisions as well as hundreds of unpublished decisions.

Because the open-and-obvious doctrine is so well-established — and plays such a

key role in resolving premises-liability disputes—it affects the advice that attorneys on

both sides of the "v" give to their clients in premises-liability matters. For almost three

decades, MDTC's members have advised their premises-liability clients about every

aspect of their cases—including trial strategy, settlement negotiations, and potential risk

exposure —based on the principles of the open-and-obvious doctrine that this Court has

19 19

66 Mich 638, 647; 33 NW 744 (1887), the Court denied a cause of action to a plaintiff who

fell through a hatch on a boat because he had reason to know that the hatch was open.

Similarly, in Nezworski v Mazanec, 301 Mich 43, 61; 2 NW2d 912 (1942), this Court

concluded that premises owners owe a duty to warn invitees of “hidden dangers”

related to conditions on their land—i.e., if the dangers are known or obvious, there is no

duty to warn. Finally, the Riddle Court noted that in Williams v Cunningham Drug Stores,

Inc, 429 Mich 495, 500; 418 NW2d 381 (1988), this Court “held that a possessor of land

does not owe a duty to protect his invitees where conditions arise from which an

unreasonable risk cannot be anticipated or of dangers that are so obvious and apparent

that an invitee may be expected to discover them himself.” Riddle, 440 Mich at 94. Based

on that precedent, this Court held “that the ’no duty to warn of open and obvious

dangers’ rule remains viable in Michigan.” Id. at 99-100.

In the 27 years since Riddle, the open-and-obvious doctrine has become firmly

entrenched in Michigan’s premises-liability jurisprudence. The doctrine has been

applied by this Court in more than 20 decisions and by the Court of Appeals in more

than 50 published decisions as well as hundreds of unpublished decisions.

Because the open-and-obvious doctrine is so well-established—and plays such a

key role in resolving premises-liability disputes—it affects the advice that attorneys on

both sides of the “v” give to their clients in premises-liability matters. For almost three

decades, MDTC’s members have advised their premises-liability clients about every

aspect of their cases—including trial strategy, settlement negotiations, and potential risk

exposure—based on the principles of the open-and-obvious doctrine that this Court has

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

articulated. If this Court were to overrule Riddle, Lugo, and Hoffner, it would harm the

individuals and business that have relied on that advice. As a result, the open-and-

obvious doctrine "has become so embedded, so accepted, so fundamental, to everyone's

expectations," that if this Court were to do away with the open-and-obvious doctrine,

"it would produce not just readjustments, but practical real-world dislocations."

Robinson, 462 Mich at 466.

Finally, the last Robinson factor —"whether changes in the law or facts no longer

justify the questioned decision" —also weighs against overruling this Court's open-and-

obvious decisions. See Coldwater, 500 Mich at 162. Simply put, there hasn't been any

changes in the law or facts that would justify getting rid of a rule of law that has been a

key part of Michigan's premises-liability jurisprudence for almost 30 years.

The basis for the doctrine is Michigan's "overriding public policy of encouraging

people to take reasonable care for their own safety." Hoffner, 492 Mich at 460. That policy

hasn't changed. And, as noted above, the open-and-obvious doctrine has been addressed

and applied in a constant and steady stream of opinions by both levels of Michigan's

appellate courts from 1992 to the present. See, e.g., McMaster v DTE Electric Co, Mich

; 933 NW2d 42 (Supreme Court Dkt. No. 159062, September 27, 2019) ("The open and

obvious doctrine is applicable to a claim that sounds in premises liability."); Buhl v City of

Oak Park, Mich ; NW2d (COA Dkt. No. 340359, August 29, 2019) (Holding

that "the condition was open and obvious, and the trial court properly granted

defendant's motion for summary disposition on this ground.").

20 20

articulated. If this Court were to overrule Riddle, Lugo, and Hoffner, it would harm the

individuals and business that have relied on that advice. As a result, the open-and-

obvious doctrine “has become so embedded, so accepted, so fundamental, to everyone’s

expectations,” that if this Court were to do away with the open-and-obvious doctrine,

“it would produce not just readjustments, but practical real-world dislocations.”

Robinson, 462 Mich at 466.

Finally, the last Robinson factor—”whether changes in the law or facts no longer

justify the questioned decision”—also weighs against overruling this Court’s open-and-

obvious decisions. See Coldwater, 500 Mich at 162. Simply put, there hasn’t been any

changes in the law or facts that would justify getting rid of a rule of law that has been a

key part of Michigan’s premises-liability jurisprudence for almost 30 years.

The basis for the doctrine is Michigan’s “overriding public policy of encouraging

people to take reasonable care for their own safety.” Hoffner, 492 Mich at 460. That policy

hasn’t changed. And, as noted above, the open-and-obvious doctrine has been addressed

and applied in a constant and steady stream of opinions by both levels of Michigan’s

appellate courts from 1992 to the present. See, e.g., McMaster v DTE Electric Co, ___ Mich

___; 933 NW2d 42 (Supreme Court Dkt. No. 159062, September 27, 2019) (“The open and

obvious doctrine is applicable to a claim that sounds in premises liability.”); Buhl v City of

Oak Park, ___ Mich ___; ___ NW2d ___ (COA Dkt. No. 340359, August 29, 2019) (Holding

that “the condition was open and obvious, and the trial court properly granted

defendant’s motion for summary disposition on this ground.”).

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

In sum, all three of the Robinson factors weigh in favor of retaining the open-and-

obvious doctrine. And, since the Court of Appeals correctly applied the doctrine in its

unpublished opinion, this Court should deny leave to appeal. Alternatively, if it decides to

issue a decision, it should affirm the trial court's open-and-obvious ruling.

Conclusion

For the reasons stated above, MDTC asks this Court to deny Scola's application for

leave to appeal. Alternatively, this Court should affirm the Court of Appeals and reiterate

that: (1) claims alleging violations of a duty arising out of the possession and control of

land sound exclusively in premises liability, regardless where the injury occurs; and (2)

that the open-and-obvious doctrine applies in premises-liability cases like this one.

COLLINS EINHORN FARRELL PC

BY: /s/ Jonathan B. Koch JONATHAN B. KOCH (P80408) Attorney for Amicus Curiae MDTC 4000 Town Center, Suite 909 Southfield, MI 48075 (248) 355-4141 Jonathan. Koch@ceflawyers. com

Dated: November 27, 2019

21 21

In sum, all three of the Robinson factors weigh in favor of retaining the open-and-

obvious doctrine. And, since the Court of Appeals correctly applied the doctrine in its

unpublished opinion, this Court should deny leave to appeal. Alternatively, if it decides to

issue a decision, it should affirm the trial court’s open-and-obvious ruling.

Conclusion

For the reasons stated above, MDTC asks this Court to deny Scola’s application for

leave to appeal. Alternatively, this Court should affirm the Court of Appeals and reiterate

that: (1) claims alleging violations of a duty arising out of the possession and control of

land sound exclusively in premises liability, regardless where the injury occurs; and (2)

that the open-and-obvious doctrine applies in premises-liability cases like this one.

COLLINS EINHORN FARRELL PC

BY: /s/ Jonathan B. KochJONATHAN B. KOCH (P80408)Attorney for Amicus Curiae MDTC4000 Town Center, Suite 909Southfield, MI 48075(248) [email protected]

Dated: November 27, 2019

RE

CE

IVE

D by M

SC 11/27/2019 12:25:21 PM

STATE OF MICHIGAN

IN THE SUPREME COURT



v Wayne County Circuit Court No. 15-002804-NI Hon. John A. Murphy

JP MORGAN CHASE BANK, NATIONAL ASSOCIATION, and JP MORGAN CHASE & CO.,


and

KATHLEEN SCOLA and ESTATE OF JOHN BARROW BROWN (DECEASED), and CITY OF WAYNE, Jointly and Severally,

Defendants.

INDEX OF ATTACHMENTS TO MICHIGAN DEFENSE TRIAL COUNSEL'S

BRIEF AMICUS CURIAE






STATE OF MICHIGAN

IN THE SUPREME COURT _____________________________________________

FRANK ANTHONY SCOLA, Supreme Court No. 158903 Plaintiff-Appellant, Court of Appeals No. 338966 Wayne County Circuit Court v No. 15-002804-NI Hon. John A. Murphy JP MORGAN CHASE BANK, NATIONAL ASSOCIATION, and JP MORGAN CHASE & CO.,

Defendants-Appellees, and KATHLEEN SCOLA and ESTATE OF JOHN BARROW BROWN (DECEASED), and CITY OF WAYNE, Jointly and Severally, Defendants. ______________________________________________________________________________

INDEX OF ATTACHMENTS TO MICHIGAN DEFENSE TRIAL COUNSEL’S

BRIEF AMICUS CURIAE






RE

CE

IVE

D by M

SC 11/27/2019 12:25:22 PM

mailto:[email protected]

Michigan Defense Trial Counsel’s Index of Attachments

Attachment Title

1 Holcomb v GWT, Inc, unpublished opinion of the Court of Appeals, issued March 1, 2016 (Docket No. 325410); 2016 WL 805635

RE

CE

IVE

D by M

SC 11/27/2019 12:25:22 PM

ATTACHMENT 1

ATTACHMENT 1

RE

CE

IVE

D by M

SC 11/27/2019 12:25:22 PM

Holcomb v. GWT, Inc., Not Reported in N.W.2d (2016)

2016 WL 805635

Only the Westlaw citation is currently available.

UNPUBLISHED OPINION. CHECK

COURT RULES BEFORE CITING.

UNPUBLISHED

Court of Appeals of Michigan.

Christopher HOLCOMB, Plaintiff—Appellant,

v.

GWT, INC. d/b/a Moose Traxx

Grill & Bar, Defendant—Appellee,

and

Patrick Francis O'Donnell and James Patrick

O'Donnell, Defendants/Cross—Defendants.

Docket No. 325410.

March 1, 2016.

Macomb Circuit Court; LC No.2013-002409—NI.

Before: GLEICHER, P.J., and JANSEN and SHAPIRO, JJ.

Opinion

PER CURIAM.

*1 This case centers on a bicyclist travelling along a

sidewalk who collided with a motor vehicle that was exiting

a restaurant's parking lot. The bicyclist asserted a premises

liability count against the restaurant, claiming that two trees

planted at the intersection of the sidewalk and driveway

obscured his view of vehicles leaving the parking lot. The

circuit court determined that this obstruction of view was

an open and obvious condition on the land and summarily

dismissed the action. We affirm.

I. BACKGROUND

At approximately 7:45 p.m. on April 10, 2012, plaintiff

Christopher Holcomb rode his bicycle on the sidewalk

southbound past the Moose Traxx Grill & Bar on Gratiot

in Roseville. As he approached the restaurant's driveway

from the sidewalk, an intoxicated James O'Donnell drove his

vehicle from the restaurant parking lot toward the street. The

two collided, Holcomb became trapped under the vehicle, and

he ultimately required an amputation to the left leg below the

knee.

Holcomb initially filed a dramshop action against Moose

Traxx. During depositions, O'Donnell asserted that because

of "two overgrown trees" planted at the intersection of the

sidewalk and the driveway, he "could not see the sidewalk."

Holcomb then amended his complaint to include a premises

liability count, asserting that the trees dangerously obstructed

the view between the sidewalk and driveway. During his

subsequent deposition, Holcomb indicated that he had to

swerve to the right side of the sidewalk to avoid the trees

and claimed he was unable to see O'Donnell's vehicle until it

was too late. Photographs of the area presented by Holcomb

revealed that the trees' branches did not intrude upon the

sidewalk, and Moose Traxx's owner, Gary Teichman, testified

that in the 43 years he had been using the driveway, his view

of the sidewalk had never been obstructed.

Moose Traxx sought summary disposition of Holcomb's

claim, arguing that the obstruction of view was an open

and obvious condition. Holcomb retorted that such a visual

obstruction was by its nature not open and obvious. He further

argued that his premises liability claim entailed an additional

count for ordinary negligence. The negligence claim arose from Teichman's failure, as Moose Traxx's agent, to maintain

the trees to ensure a clear sightline as required by city

ordinance and state statute. Moose Traxx in turn contended

that it owed no duty to Holcomb to maintain the land in a safe

condition, only to warn of known dangers of which Holcomb

would not be reasonably aware, because Holcomb was merely

a licensee on the property.

Ultimately, the circuit court granted Moose Traxx's motion.

The court concluded that Holcomb was a licensee, and the

reduced duty nullified any potential ordinary negligence

claim. In any event, the claim sounded in premises liability

alone, and the visual obstruction was an open and obvious

condition as evidenced by the photographs presented by

Holcomb himself. The court further discerned no violation of

the duty to warn because the visual obstruction would have

been clear to all.

II. ANALYSIS

*2 We review a trial court's decision on a motion for

summary disposition de novo. Wayne Co v. Wayne Co

WESTLAW © 2019 Thomson Reuters. No claim to original U.S. Government Works.


© 2019 Thomson Reuters. No claim to original U.S. Government Works. 1

2016 WL 805635Only the Westlaw citation is currently available.

UNPUBLISHED OPINION. CHECKCOURT RULES BEFORE CITING.

UNPUBLISHEDCourt of Appeals of Michigan.

Christopher HOLCOMB, Plaintiff–Appellant,v.

GWT, INC. d/b/a Moose TraxxGrill & Bar, Defendant–Appellee,

andPatrick Francis O'Donnell and James PatrickO'Donnell, Defendants/Cross–Defendants.

Docket No. 325410.|

March 1, 2016.

Macomb Circuit Court; LC No.2013–002409–NI.

Before: GLEICHER, P.J., and JANSEN and SHAPIRO, JJ.

Opinion

PER CURIAM.

*1 This case centers on a bicyclist travelling along asidewalk who collided with a motor vehicle that was exitinga restaurant's parking lot. The bicyclist asserted a premisesliability count against the restaurant, claiming that two treesplanted at the intersection of the sidewalk and drivewayobscured his view of vehicles leaving the parking lot. Thecircuit court determined that this obstruction of view wasan open and obvious condition on the land and summarilydismissed the action. We affirm.

I. BACKGROUND

At approximately 7:45 p.m. on April 10, 2012, plaintiffChristopher Holcomb rode his bicycle on the sidewalksouthbound past the Moose Traxx Grill & Bar on Gratiotin Roseville. As he approached the restaurant's drivewayfrom the sidewalk, an intoxicated James O'Donnell drove hisvehicle from the restaurant parking lot toward the street. Thetwo collided, Holcomb became trapped under the vehicle, and

he ultimately required an amputation to the left leg below theknee.

Holcomb initially filed a dramshop action against MooseTraxx. During depositions, O'Donnell asserted that becauseof “two overgrown trees” planted at the intersection of thesidewalk and the driveway, he “could not see the sidewalk.”Holcomb then amended his complaint to include a premisesliability count, asserting that the trees dangerously obstructedthe view between the sidewalk and driveway. During hissubsequent deposition, Holcomb indicated that he had toswerve to the right side of the sidewalk to avoid the treesand claimed he was unable to see O'Donnell's vehicle until itwas too late. Photographs of the area presented by Holcombrevealed that the trees' branches did not intrude upon thesidewalk, and Moose Traxx's owner, Gary Teichman, testifiedthat in the 43 years he had been using the driveway, his viewof the sidewalk had never been obstructed.

Moose Traxx sought summary disposition of Holcomb'sclaim, arguing that the obstruction of view was an openand obvious condition. Holcomb retorted that such a visualobstruction was by its nature not open and obvious. He furtherargued that his premises liability claim entailed an additionalcount for ordinary negligence. The negligence claim arosefrom Teichman's failure, as Moose Traxx's agent, to maintainthe trees to ensure a clear sightline as required by cityordinance and state statute. Moose Traxx in turn contendedthat it owed no duty to Holcomb to maintain the land in a safecondition, only to warn of known dangers of which Holcombwould not be reasonably aware, because Holcomb was merelya licensee on the property.

Ultimately, the circuit court granted Moose Traxx's motion.The court concluded that Holcomb was a licensee, and thereduced duty nullified any potential ordinary negligenceclaim. In any event, the claim sounded in premises liabilityalone, and the visual obstruction was an open and obviouscondition as evidenced by the photographs presented byHolcomb himself. The court further discerned no violation ofthe duty to warn because the visual obstruction would havebeen clear to all.

II. ANALYSIS

*2 We review a trial court's decision on a motion forsummary disposition de novo. Wayne Co v. Wayne Co

RE

CE

IVE

D by M

SC 11/27/2019 12:25:22 PM

http://www.westlaw.com/Link/Document/FullText?findType=h&pubNum=176284&cite=0256059901&originatingDoc=I3891d1a0e0aa11e590d4edf60ce7d742&refType=RQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)



http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=2006879256&pubNum=0000595&originatingDoc=I3891d1a0e0aa11e590d4edf60ce7d742&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)


Retirement Comm, 267 Mich.App 230, 243; 704 NW2d 117

(2005)....

A motion under MCR 2.116(C)(10) "tests the factual

support of a plaintiffs claim." Walsh v. Taylor, 263

Mich.App 618, 621; 689 NW2d 506 (2004). "Summary

disposition is appropriate under MCR 2.116(C)(10) if

there is no genuine issue regarding any material fact and

the moving party is entitled to judgment as a matter of

law ." West v. Gen Motors Corp, 469 Mich. 177, 183;

665 NW2d 468 (2003). "In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings,

admissions, affidavits, and other relevant documentary

evidence of record in the light most favorable to the

nonmoving party to determine whether any genuine

issue of material fact exists to warrant a trial." Walsh, 263 Mich.App at 621. "A genuine issue of material fact

exists when the record, giving the benefit of reasonable

doubt to the opposing party, leaves open an issue upon

which reasonable minds might differ." West, 469 Mich.

at 183. [Zaher v. Miotke, 300 Mich.App 132, 139-140;

832 NW2d 266 (2013).]

A. ORDINARY NEGLIGENCE

Holcomb continues to assert that his claim sounds in ordinary

negligence, not just premises liability. However, "[w]hen a

plaintiffs injury arises from an allegedly dangerous condition

on the land, the action sounds in premises liability rather than

ordinary negligence, even when the plaintiff alleges that the

premises possessor created the condition giving rise to the

plaintiffs injury." Compau v. Pioneer Resource Co, LLC, Mich. ; 871 NW2d 210 (2015).

In Buhalis v. Trinity Continuing Care Servs, 296 Mich.App

685, 692; 822 NW2d 254 (2012), this Court described the

difference between an ordinary negligence and premises

liability action:

Michigan law distinguishes between

claims arising from ordinary

negligence and claims premised on

a condition of the land. See James

v. Alberts, 464 Mich. 12, 18-19;

626 NW2d 158 (2001). In the

latter case, liability arises solely

from the defendant's duty as an

owner, possessor, or occupier of

land. Laier v. Kitchen, 266 Mich.App

482, 493; 702 NW2d 199 (2005). If the plaintiffs injury arose from

an allegedly dangerous condition

on the land, the action sounds in premises liability rather than ordinary

negligence; this is true even when

the plaintiff alleges that the premises

possessor created the condition giving

rise to the plaintiffs injury. James, 464

Mich. at 18-19.

The distinction is important because the open and obvious

doctrine does not apply to defeat ordinary negligence claims.

Laier, 266 Mich.App at 490.

A claim can have elements sounding in both premises liability

and ordinary negligence. In Laier, for example, the defendant

landowner invited the plaintiffs deceased onto his land to

assist in the repair of a tractor. The defendant negligently

removed a vise grip from a hydraulic hose, causing the

tractor's front-end bucket loader to crash down and pin the

decedent to the machine. Id. at 485-486. This Court held: "Plaintiffs complaint stated that defendant 'owed a duty to

[the deceased] to use due care and caution in the operation

and control of the tractor and bucket.' Defendant's conduct

was thus an alleged basis of liability, independent of premises

liability." Id. at 493. However, "[i]n addition to the duty

owed concerning conduct, plaintiff alleged a duty based on

[the deceased's] status as an invitee, i.e., a duty to protect

[the deceased] from unreasonable risks of injury known to

defendant and to warn [the deceased] about those risks.

This allegation was the basis of plaintiffs claim of premises

liability[.]" Id. at 497.

*3 In Buhalis, 296 Mich.App at 689-690, the plaintiff

slipped and fell on ice on a patio near the front entrance of

the defendant's building. Other paths had been cleared from

the parking lot to the entrance, but not the location where the plaintiff fell. Id. at 690. In fact, the awnings near the

front entrance redirected rain water and melting snow onto

the patio area, which then accumulated significantly more

ice than other paths. Id. This Court held that the trial court

erroneously characterized the plaintiffs claim as sounding in

ordinary negligence, rather than in premises liability alone. Id.

at 691. In doing so, this Court noted, "If the plaintiffs injury

arose from an allegedly dangerous condition on the land,

the action sounds in premises liability rather than ordinary




Retirement Comm, 267 Mich.App 230, 243; 704 NW2d 117(2005)....

A motion under MCR 2.116(C)(10) “tests the factualsupport of a plaintiff's claim.” Walsh v. Taylor, 263Mich.App 618, 621; 689 NW2d 506 (2004). “Summarydisposition is appropriate under MCR 2.116(C)(10) ifthere is no genuine issue regarding any material fact andthe moving party is entitled to judgment as a matter oflaw .” West v. Gen Motors Corp, 469 Mich. 177, 183;665 NW2d 468 (2003). “In reviewing a motion underMCR 2.116(C)(10), this Court considers the pleadings,admissions, affidavits, and other relevant documentaryevidence of record in the light most favorable to thenonmoving party to determine whether any genuineissue of material fact exists to warrant a trial.” Walsh,263 Mich.App at 621. “A genuine issue of material factexists when the record, giving the benefit of reasonabledoubt to the opposing party, leaves open an issue uponwhich reasonable minds might differ.” West, 469 Mich.at 183. [Zaher v. Miotke, 300 Mich.App 132, 139–140;832 NW2d 266 (2013).]

A. ORDINARY NEGLIGENCE

Holcomb continues to assert that his claim sounds in ordinarynegligence, not just premises liability. However, “[w]hen aplaintiff's injury arises from an allegedly dangerous conditionon the land, the action sounds in premises liability rather thanordinary negligence, even when the plaintiff alleges that thepremises possessor created the condition giving rise to theplaintiff's injury.” Compau v. Pioneer Resource Co, LLC, –––Mich. ––––; 871 NW2d 210 (2015).

In Buhalis v. Trinity Continuing Care Servs, 296 Mich.App685, 692; 822 NW2d 254 (2012), this Court described thedifference between an ordinary negligence and premisesliability action:

Michigan law distinguishes betweenclaims arising from ordinarynegligence and claims premised ona condition of the land. See Jamesv. Alberts, 464 Mich. 12, 18–19;626 NW2d 158 (2001). In thelatter case, liability arises solelyfrom the defendant's duty as anowner, possessor, or occupier of

land. Laier v. Kitchen, 266 Mich.App482, 493; 702 NW2d 199 (2005).If the plaintiff's injury arose froman allegedly dangerous conditionon the land, the action sounds inpremises liability rather than ordinarynegligence; this is true even whenthe plaintiff alleges that the premisespossessor created the condition givingrise to the plaintiff's injury. James, 464Mich. at 18–19.

The distinction is important because the open and obviousdoctrine does not apply to defeat ordinary negligence claims.Laier, 266 Mich.App at 490.

A claim can have elements sounding in both premises liabilityand ordinary negligence. In Laier, for example, the defendantlandowner invited the plaintiff's deceased onto his land toassist in the repair of a tractor. The defendant negligentlyremoved a vise grip from a hydraulic hose, causing thetractor's front-end bucket loader to crash down and pin thedecedent to the machine. Id. at 485–486. This Court held:“Plaintiff's complaint stated that defendant ‘owed a duty to[the deceased] to use due care and caution in the operationand control of the tractor and bucket.’ Defendant's conductwas thus an alleged basis of liability, independent of premisesliability.” Id. at 493. However, “[i]n addition to the dutyowed concerning conduct, plaintiff alleged a duty based on[the deceased's] status as an invitee, i.e., a duty to protect[the deceased] from unreasonable risks of injury known todefendant and to warn [the deceased] about those risks.This allegation was the basis of plaintiff's claim of premisesliability[.]” Id. at 497.

*3 In Buhalis, 296 Mich.App at 689–690, the plaintiffslipped and fell on ice on a patio near the front entrance ofthe defendant's building. Other paths had been cleared fromthe parking lot to the entrance, but not the location wherethe plaintiff fell. Id. at 690. In fact, the awnings near thefront entrance redirected rain water and melting snow ontothe patio area, which then accumulated significantly moreice than other paths. Id. This Court held that the trial courterroneously characterized the plaintiff's claim as sounding inordinary negligence, rather than in premises liability alone. Id.at 691. In doing so, this Court noted, “If the plaintiff's injuryarose from an allegedly dangerous condition on the land,the action sounds in premises liability rather than ordinary

RE

CE

IVE

D by M

SC 11/27/2019 12:25:22 PM



http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1005474&cite=MIRRCPMCR2.116&originatingDoc=I3891d1a0e0aa11e590d4edf60ce7d742&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)







http://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=2005139337&pubNum=0000543&originatingDoc=I3891d1a0e0aa11e590d4edf60ce7d742&refType=RP&fi=co_pp_sp_543_621&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_543_621






http://www.westlaw.com/Link/Document/FullText?findType=Y&pubNum=0000595&cite=871NW2D210&originatingDoc=I3891d1a0e0aa11e590d4edf60ce7d742&refType=RP&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)



















negligence; this is true even when the plaintiff alleges that

the premises possessor created the condition giving rise to the plaintiffs injury." Id. at 692. The plaintiff fell "when she

encountered a dangerous condition on Trinity's premises."

Even though the plaintiff accused defendant's employees of

creating the hazard, "this allegation [did] not transform the claim into one for ordinary negligence." Id.

The difference between Laier and Buhalis is that the Laier

landowner took an affirmative negligent action that directly

and swiftly caused an injury. Moose Traxx took no such

affirmative action in this case. Here, as in Buhalis, Holcomb's

claim is based on a condition of the land. He asserted that

the existing landscaping obscured the line of sight between

southbound travelling pedestrians and vehicles exiting via

the driveway. This is similar to the claim in Buhalis that

the property design allowed ice to accumulate on the patio.

Accordingly, the claim sounded in premises liability. The

claim was not converted into one for ordinary negligence

simply because Holcomb alleged that Moose Traxx created

the condition by failing to adequately maintain the trees.

B. OPEN AND OBVIOUS

Moreover, the visual obstruction was an open and obvious condition, nullifying any potential liability on Moose Traxx's

part.

The law of premises liability in

Michigan has its foundation in two

general precepts. First, landowners

must act in a reasonable manner to

guard against harms that threaten the

safety and security of those who enter

their land. Second, and as a corollary,

landowners are not insurers; that is,

they are not charged with guaranteeing

the safety of every person who comes

onto their land. These principles have

been used to establish well-recognized

rules governing the rights and

responsibilities of both landowners

and those who enter their land.

Underlying all these principles and

rules is the requirement that both

the possessors of land and those

who come onto it exercise common

sense and prudent judgment when

confronting hazards on the land.

These rules balance a possessor's

ability to exercise control over the

premises with the invitees' obligation

to assume personal responsibility to

protect themselves from apparent

dangers. [Hoffner v. Lanctoe, 492 Mich. 450, 459-460; 821 NW2d 88 (2012) (citations omitted).]

*4 "To establish a prima facie case of negligence, a plaintiff

must prove that `(1) the defendant owed the plaintiff a legal

duty, (2) the defendant breached the legal duty, (3) the plaintiff

suffered damages, and (4) the defendant's breach was a

proximate cause of the plaintiffs damages.' " Hill v. Sears,

Roebuck & Co, 492 Mich. 651, 660; 822 NW2d 190 (2012),

quoting Loweke v. Ann Arbor Ceiling & Partition Co, LLC,

489 Mich. 157, 162; 809 NW2d 553 (2011). "The starting

point for any discussion of the rules governing premises liability law is establishing what duty a premises possessor

owes to those who come onto his land." Hoffner, 492 Mich. at

460. There are three common-law categories in which visitors

to one's land fall: invitees, licensees, and trespassers. One's

category decides the duty owed. Stitt v. Holland Abundant Life

Fellowship, 462 Mich. 591, 596; 614 NW2d 88 (2000).

The parties agree that Holcomb was a licensee.

A "licensee" is a person who is

privileged to enter the land of another

by virtue of the possessor's consent. A landowner owes a licensee a duty

only to warn the licensee of any

hidden dangers the owner knows

or has reason to know of, if the

licensee does not know or have reason

to know of the dangers involved.

The landowner owes no duty of

inspection or affirmative care to make

the premises safe for the licensee's visit. Typically, social guests are

licensees who assume the ordinary

risks associated with their visit. [Id.]




negligence; this is true even when the plaintiff alleges thatthe premises possessor created the condition giving rise tothe plaintiff's injury.” Id. at 692. The plaintiff fell “when sheencountered a dangerous condition on Trinity's premises.”Even though the plaintiff accused defendant's employees ofcreating the hazard, “this allegation [did] not transform theclaim into one for ordinary negligence.” Id.

The difference between Laier and Buhalis is that the Laierlandowner took an affirmative negligent action that directlyand swiftly caused an injury. Moose Traxx took no suchaffirmative action in this case. Here, as in Buhalis, Holcomb'sclaim is based on a condition of the land. He asserted thatthe existing landscaping obscured the line of sight betweensouthbound travelling pedestrians and vehicles exiting viathe driveway. This is similar to the claim in Buhalis thatthe property design allowed ice to accumulate on the patio.Accordingly, the claim sounded in premises liability. Theclaim was not converted into one for ordinary negligencesimply because Holcomb alleged that Moose Traxx createdthe condition by failing to adequately maintain the trees.

B. OPEN AND OBVIOUS

Moreover, the visual obstruction was an open and obviouscondition, nullifying any potential liability on Moose Traxx'spart.

The law of premises liability inMichigan has its foundation in twogeneral precepts. First, landownersmust act in a reasonable manner toguard against harms that threaten thesafety and security of those who entertheir land. Second, and as a corollary,landowners are not insurers; that is,they are not charged with guaranteeingthe safety of every person who comesonto their land. These principles havebeen used to establish well-recognizedrules governing the rights andresponsibilities of both landownersand those who enter their land.Underlying all these principles andrules is the requirement that boththe possessors of land and thosewho come onto it exercise common

sense and prudent judgment whenconfronting hazards on the land.These rules balance a possessor'sability to exercise control over thepremises with the invitees' obligationto assume personal responsibility toprotect themselves from apparentdangers. [Hoffner v. Lanctoe, 492Mich. 450, 459–460; 821 NW2d 88(2012) (citations omitted).]

*4 “To establish a prima facie case of negligence, a plaintiffmust prove that ‘(1) the defendant owed the plaintiff a legalduty, (2) the defendant breached the legal duty, (3) the plaintiffsuffered damages, and (4) the defendant's breach was aproximate cause of the plaintiff's damages.’ “ Hill v. Sears,Roebuck & Co, 492 Mich. 651, 660; 822 NW2d 190 (2012),quoting Loweke v. Ann Arbor Ceiling & Partition Co, LLC,489 Mich. 157, 162; 809 NW2d 553 (2011). “The startingpoint for any discussion of the rules governing premisesliability law is establishing what duty a premises possessorowes to those who come onto his land.” Hoffner, 492 Mich. at460. There are three common-law categories in which visitorsto one's land fall: invitees, licensees, and trespassers. One'scategory decides the duty owed. Stitt v. Holland Abundant LifeFellowship, 462 Mich. 591, 596; 614 NW2d 88 (2000).

The parties agree that Holcomb was a licensee.

A “licensee” is a person who isprivileged to enter the land of anotherby virtue of the possessor's consent.A landowner owes a licensee a dutyonly to warn the licensee of anyhidden dangers the owner knowsor has reason to know of, if thelicensee does not know or have reasonto know of the dangers involved.The landowner owes no duty ofinspection or affirmative care to makethe premises safe for the licensee'svisit. Typically, social guests arelicensees who assume the ordinaryrisks associated with their visit. [Id.]

RE

CE

IVE

D by M

SC 11/27/2019 12:25:22 PM














A person walking down a public sidewalk is considered to be

"on" the adjacent landowner's property. If that person is on

the sidewalk for a non-business purpose, they are a licensee.

Campbell v. Kovich, 273 Mich.App 227, 235; 731 NW2d 112

(2006).

Holcomb contends that as he was a licensee, the open and

obvious doctrine does not apply. This is not true.

A possessor of land has no duty

to give warning of dangers that

are open and obvious, inasmuch as

such dangers come with their own warning.... [W]ith regard to licensees, no liability arises if the licensee knows

or has reason to know of the danger,

or if the possessor should expect

that the licensee will discover the

danger. Hence, a possessor of land

has no obligation to take any steps

to safeguard licensees from conditions

that are open and obvious. [Pippin v.

Atallah, 245 Mich.App 136, 143; 626 NW2d 911 (2001) (citations omitted).]

Whether a condition is open and obvious is judged by an

objective standard by asking, "Would an average person

of ordinary intelligence discover the danger and the risk

it presented on casual inspection?" Price v. Kroger Co, 284 Mich.App 496, 501; 773 NW2d 739 (2009). See also

Novotney v. Burger King Corp, 198 Mich.App 470, 474; 499

NW2d 379 (1993) ("[A]n obvious danger is no danger to a

reasonably careful person.... Its nature, as well as any danger

presented, is apparent upon casual inspection by an average

user with ordinary intelligence.").

*5 As determined by the circuit court, the photographic

evidence presented by both parties revealed that the visual

obstruction was an open and obvious condition. Regardless

of whether the trees were overgrown or improperly placed,

the demarcation between the sidewalk and the driveway is

clear and obvious. That vehicles may approach the driveway from the parking lot and pedestrians from the sidewalk is

equally clear and obvious to an average user of ordinary

intelligence. As is the fact that the trees could obstruct the

view of intersecting traffic. This obvious obstruction would

place a reasonable person of average intelligence on notice to

stop and look before proceeding.

C. SPECIAL DUTY UNDER STATUTE OR ORDINANCE

Holcomb complains that a state statute and various city

ordinances require land owners to maintain trees and hedges

so they do not obstruct the view at the intersection of a

driveway and a sidewalk, and that these regulations impose a

special duty on the landowner in avoidance of the open and

obvious doctrine. Indeed, this Court has stated, "the doctrine

does not exonerate a defendant from liability where the claim

is one of a statutory duty to maintain and repair the premises."

Laier, 266 Mich.App at 490, citing Walker v. City of Flint, 213 Mich.App 18, 22; 539 NW2d 535 (1995).

First, the statute cited by Holcomb, MCL 239.5, is

inapplicable in this case. The statute requires land owners to

maintain "all hedges or hedge rows" along public roadways

at "a height not exceeding 4 1/2 feet." Id. Although trees fit

within the definition of "hedges or hedge rows," OAG, 1982,

No. 6,025, two trees planted side-by-side do not a hedge or

hedge row make.

Even if Moose Traxx violated city ordinances, such conduct

would not negate the open and obvious doctrine. Violation of

a statutory duty is negligence per se. Douglas v. Edgewater

Park Co, 369 Mich. 320, 328; 119 NW2d 567 (1963). Yet,

"[v]iolation of an ordinance is not negligence per se, but only

evidence of negligence." Stevens v. Drekich, 178 Mich.App

273, 278; 443 NW2d 401 (1989), citing Mills v. A B Dick Co,

26 Mich.App 164, 168; 182 NW2d 79 (1970). "If no duty is

owed by the defendant to the plaintiff, an ordinance violation

committed by the defendant is not actionable as negligence."

Stevens, 178 Mich.App at 278, citing Johnson v. Davis, 156 Mich.App 550, 555-556; 402 NW2d 486 (1986). Stated more

clearly, an ordinance violation standing alone "will not serve

as the basis for imposing a legal duty cognizable in negligence

theory." Wordy. Frank's Nursery & Crafts, Inc, 186 Mich.App

120, 135; 463 NW2d 442 (1990). Accordingly, even if Moose

Traxx violated the ordinances, and even if the ordinances

were enacted to prevent the type of accident that occurred in

this case, such violations without more do not establish that

Moose Traxx owed a legal duty to Holcomb. The ordinance

violation therefore does not sound in negligence, premises

liability or otherwise, and does not negate the application of

the open and obvious doctrine.




A person walking down a public sidewalk is considered to be“on” the adjacent landowner's property. If that person is onthe sidewalk for a non-business purpose, they are a licensee.Campbell v. Kovich, 273 Mich.App 227, 235; 731 NW2d 112(2006).

Holcomb contends that as he was a licensee, the open andobvious doctrine does not apply. This is not true.

A possessor of land has no dutyto give warning of dangers thatare open and obvious, inasmuch assuch dangers come with their ownwarning.... [W]ith regard to licensees,no liability arises if the licensee knowsor has reason to know of the danger,or if the possessor should expectthat the licensee will discover thedanger. Hence, a possessor of landhas no obligation to take any stepsto safeguard licensees from conditionsthat are open and obvious. [Pippin v.Atallah, 245 Mich.App 136, 143; 626NW2d 911 (2001) (citations omitted).]

Whether a condition is open and obvious is judged by anobjective standard by asking, “Would an average personof ordinary intelligence discover the danger and the riskit presented on casual inspection?” Price v. Kroger Co,284 Mich.App 496, 501; 773 NW2d 739 (2009). See alsoNovotney v. Burger King Corp, 198 Mich.App 470, 474; 499NW2d 379 (1993) (“[A]n obvious danger is no danger to areasonably careful person.... Its nature, as well as any dangerpresented, is apparent upon casual inspection by an averageuser with ordinary intelligence.”).

*5 As determined by the circuit court, the photographicevidence presented by both parties revealed that the visualobstruction was an open and obvious condition. Regardlessof whether the trees were overgrown or improperly placed,the demarcation between the sidewalk and the driveway isclear and obvious. That vehicles may approach the drivewayfrom the parking lot and pedestrians from the sidewalk isequally clear and obvious to an average user of ordinaryintelligence. As is the fact that the trees could obstruct theview of intersecting traffic. This obvious obstruction would

place a reasonable person of average intelligence on notice tostop and look before proceeding.

C. SPECIAL DUTY UNDER STATUTE OR ORDINANCE

Holcomb complains that a state statute and various cityordinances require land owners to maintain trees and hedgesso they do not obstruct the view at the intersection of adriveway and a sidewalk, and that these regulations impose aspecial duty on the landowner in avoidance of the open andobvious doctrine. Indeed, this Court has stated, “the doctrinedoes not exonerate a defendant from liability where the claimis one of a statutory duty to maintain and repair the premises.”Laier, 266 Mich.App at 490, citing Walker v. City of Flint, 213Mich.App 18, 22; 539 NW2d 535 (1995).

First, the statute cited by Holcomb, MCL 239.5, isinapplicable in this case. The statute requires land owners tomaintain “all hedges or hedge rows” along public roadwaysat “a height not exceeding 4 1/2 feet.” Id. Although trees fitwithin the definition of “hedges or hedge rows,” OAG, 1982,No. 6,025, two trees planted side-by-side do not a hedge orhedge row make.

Even if Moose Traxx violated city ordinances, such conductwould not negate the open and obvious doctrine. Violation ofa statutory duty is negligence per se. Douglas v. EdgewaterPark Co, 369 Mich. 320, 328; 119 NW2d 567 (1963). Yet,“[v]iolation of an ordinance is not negligence per se, but onlyevidence of negligence.” Stevens v. Drekich, 178 Mich.App273, 278; 443 NW2d 401 (1989), citing Mills v. A B Dick Co,26 Mich.App 164, 168; 182 NW2d 79 (1970). “If no duty isowed by the defendant to the plaintiff, an ordinance violationcommitted by the defendant is not actionable as negligence.”Stevens, 178 Mich.App at 278, citing Johnson v. Davis, 156Mich.App 550, 555–556; 402 NW2d 486 (1986). Stated moreclearly, an ordinance violation standing alone “will not serveas the basis for imposing a legal duty cognizable in negligencetheory.” Ward v. Frank's Nursery & Crafts, Inc, 186 Mich.App120, 135; 463 NW2d 442 (1990). Accordingly, even if MooseTraxx violated the ordinances, and even if the ordinanceswere enacted to prevent the type of accident that occurred inthis case, such violations without more do not establish thatMoose Traxx owed a legal duty to Holcomb. The ordinanceviolation therefore does not sound in negligence, premisesliability or otherwise, and does not negate the application ofthe open and obvious doctrine.

RE

CE

IVE

D by M

SC 11/27/2019 12:25:22 PM













http://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000043&cite=MIST239.5&originatingDoc=I3891d1a0e0aa11e590d4edf60ce7d742&refType=LQ&originationContext=document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem&contextData=(sc.Search)













D. SPECIAL ASPECTS

*6 Holcomb also contends that special aspects rendered

the visual obstruction so unreasonably dangerous that the

open and obvious doctrine must give way. To find "special

aspects," the danger must be unreasonably dangerous or

effectively unavoidable. Hoffner, 492 Mich. at 461-463.

A condition is "unreasonably dangerous" if it "present[s]

an extremely high risk of severe harm ... where there is

no sensible reason for such an inordinate risk of severe

harm to be presented." Lugo v. Ameritech Corp, Inc, 464

Mich. 512, 519 n. 2; 629 NW2d 384 (2001). A condition is

not automatically characterized as unreasonably dangerous

"merely because a particular open and obvious condition has

some potential for severe harm" or a situation in which severe

harm could occur can be imagined. Id. Rather, only "unusual"

conditions where the "risk of harm ... is so unreasonably

high" that its presence is "inexcusable" will rise to this level.

Hoffner, 492 Mich. at 462; Lugo, 464 Mich. at 518-519 n. 2.

Holcomb focuses on the severity of a pedestrian's potential

injury in a vehicle collision to argue that the obstructed view

is unreasonably dangerous. But an obstruction caused by

trees standing next to a business driveway is not unusual or

uncommon. Nor does such an obstruction rise to the level

of danger posed by "an unguarded thirty foot deep pit in

the middle of a parking lot," Lugo, 464 Mich. at 518, or

an unrailed second-story balcony at the only entrance to a

residential apartment. Woodbury v. Buckner (On Remand), 248 Mich.App 684, 694; 650 NW2d 343 (2001). It also

does not present " 'a uniquely high likelihood of harm or

severity of harm,' " such as that caused by an extremely

heavy bale of hay left suspended, and supported only by a

point of frozen adherence, over an area in which people were

working. Jimkoski v. Shupe, 282 Mich.App 1, 6; 763 NW2d 1

(2008). This case, on the contrary, involves a run-of-the-mill

situation. That an obstruction made it more difficult to see

intersecting traffic did not render the situation unreasonably

dangerous. Rather, just as at any intersection, it required both

parties to slow down or stop and look for traffic.

The condition was also not effectively unavoidable. In

Hoffner, 492 Mich. at 468-469, the Supreme Court described

the stringent factors placing a danger in this category:

Unavoidability is characterized by

an inability to be avoided, an

inescapable result, or the inevitability

of a given outcome. Our discussion

of unavoidability in Lugo was

tempered by the use of the word

"effectively," thus providing that

a hazard must be unavoidable or

inescapable in effect orfor all practical

purposes. Accordingly, the standard

for "effective unavoidability" is that a person, for all practical purposes,

must be required or compelled to

confront a dangerous hazard. As

a parallel conclusion, situations in

which a person has a choice whether

to confront a hazard cannot truly

be unavoidable, or even effectively

so. [Citation omitted, emphasis in

original.]

*7 The plaintiff in Hoffner, 492 Mich. at 469, was injured

when she slipped on ice outside the only entrance to her gym. The plaintiff noticed the ice and decided to try to enter

anyway. She was not trapped inside with no way to exit, nor

was she compelled to enter the recreational facility. Therefore,

the Court found that the danger could have been avoided by

choosing not to enter the gym. Id. at 473.

Similarly, in Joyce v. Rubin, 249 Mich.App 231, 233; 642

NW2d 360 (2002), the plaintiff was injured when she fell on

ice outside a home where she previously worked as a live-in

caregiver. The plaintiff contended that the homeowner forced her to move her belongings on a particular day despite the

wintery weather, forced her to use the front door, and refused

all efforts to make the walk safer. Id. This Court noted that

the plaintiff could have stood her ground and refused to move

that day or insisted on using a clearer path. Moreover, the

plaintiff avoided the ice after her fall by skirting through the

grass at the icy point, establishing that she could have done

so all along. Id. at 242.

This case also presents a situation where the plaintiff could

have avoided the danger. Holcomb could have turned around

when he encountered a driveway with an open and obvious

obstruction of view. Or Holcomb could have simply stopped

and looked around the trees before proceeding thereby

effectively avoiding the danger.




D. SPECIAL ASPECTS

*6 Holcomb also contends that special aspects renderedthe visual obstruction so unreasonably dangerous that theopen and obvious doctrine must give way. To find “specialaspects,” the danger must be unreasonably dangerous oreffectively unavoidable. Hoffner, 492 Mich. at 461–463.A condition is “unreasonably dangerous” if it “present[s]an extremely high risk of severe harm ... where there isno sensible reason for such an inordinate risk of severeharm to be presented.” Lugo v. Ameritech Corp, Inc, 464Mich. 512, 519 n. 2; 629 NW2d 384 (2001). A condition isnot automatically characterized as unreasonably dangerous“merely because a particular open and obvious condition hassome potential for severe harm” or a situation in which severeharm could occur can be imagined. Id. Rather, only “unusual”conditions where the “risk of harm ... is so unreasonablyhigh” that its presence is “inexcusable” will rise to this level.Hoffner, 492 Mich. at 462; Lugo, 464 Mich. at 518–519 n. 2.

Holcomb focuses on the severity of a pedestrian's potentialinjury in a vehicle collision to argue that the obstructed viewis unreasonably dangerous. But an obstruction caused bytrees standing next to a business driveway is not unusual oruncommon. Nor does such an obstruction rise to the levelof danger posed by “an unguarded thirty foot deep pit inthe middle of a parking lot,” Lugo, 464 Mich. at 518, oran unrailed second-story balcony at the only entrance to aresidential apartment. Woodbury v. Buckner (On Remand),248 Mich.App 684, 694; 650 NW2d 343 (2001). It alsodoes not present “ ‘a uniquely high likelihood of harm orseverity of harm,’ “ such as that caused by an extremelyheavy bale of hay left suspended, and supported only by apoint of frozen adherence, over an area in which people wereworking. Jimkoski v. Shupe, 282 Mich.App 1, 6; 763 NW2d 1(2008). This case, on the contrary, involves a run-of-the-millsituation. That an obstruction made it more difficult to seeintersecting traffic did not render the situation unreasonablydangerous. Rather, just as at any intersection, it required bothparties to slow down or stop and look for traffic.

The condition was also not effectively unavoidable. InHoffner, 492 Mich. at 468–469, the Supreme Court describedthe stringent factors placing a danger in this category:

Unavoidability is characterized byan inability to be avoided, an

inescapable result, or the inevitabilityof a given outcome. Our discussionof unavoidability in Lugo wastempered by the use of the word“effectively,” thus providing thata hazard must be unavoidable orinescapable in effect or for all practicalpurposes. Accordingly, the standardfor “effective unavoidability” is thata person, for all practical purposes,must be required or compelled toconfront a dangerous hazard. Asa parallel conclusion, situations inwhich a person has a choice whetherto confront a hazard cannot trulybe unavoidable, or even effectivelyso. [Citation omitted, emphasis inoriginal.]

*7 The plaintiff in Hoffner, 492 Mich. at 469, was injuredwhen she slipped on ice outside the only entrance to hergym. The plaintiff noticed the ice and decided to try to enteranyway. She was not trapped inside with no way to exit, norwas she compelled to enter the recreational facility. Therefore,the Court found that the danger could have been avoided bychoosing not to enter the gym. Id. at 473.

Similarly, in Joyce v. Rubin, 249 Mich.App 231, 233; 642NW2d 360 (2002), the plaintiff was injured when she fell onice outside a home where she previously worked as a live-incaregiver. The plaintiff contended that the homeowner forcedher to move her belongings on a particular day despite thewintery weather, forced her to use the front door, and refusedall efforts to make the walk safer. Id. This Court noted thatthe plaintiff could have stood her ground and refused to movethat day or insisted on using a clearer path. Moreover, theplaintiff avoided the ice after her fall by skirting through thegrass at the icy point, establishing that she could have doneso all along. Id. at 242.

This case also presents a situation where the plaintiff couldhave avoided the danger. Holcomb could have turned aroundwhen he encountered a driveway with an open and obviousobstruction of view. Or Holcomb could have simply stoppedand looked around the trees before proceeding therebyeffectively avoiding the danger.

RE

CE

IVE

D by M

SC 11/27/2019 12:25:22 PM


















E. AMENDMENT

Finally, Holcomb contends that the circuit court should have

granted his motion to amend his complaint to add a claim

that the visual obstruction amounted to a public nuisance. We

review such claims for an abuse of discretion. Tierney v. Univ of Mich. Regents, 257 Mich.App 681, 687; 669 NW2d 575

(2003).

MCR 2.116(I)(5) provides that when a court grants summary

disposition under MCR 2.116(C)(10), "the court shall give the

parties an opportunity to amend their pleadings as provided by MCR 2 .118, unless the evidence then before the court shows

that amendment would not be justified." MCR 2.118(A)(1)

grants a party the right to file one amendment within 14 days

of receiving the defendant's answer. All other amendments

require the court's permission or a stipulation of the parties. MCR 2.118(A)(2). The court rules dictate that "[1]eave shall

be freely given when justice so requires." Id. "Leave to amend

should be denied only for particularized reasons, such as

undue delay, bad faith, or dilatory motive on the movant's

part, repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party,

or where amendment would be futile." Jenks v. Brown, 219 Mich.App 415, 420; 557 NW2d 114 (1996).

Holcomb had already amended his complaint twice. Even

after two amendments, Holcomb asserted (without seeking

to amend) that his premises liability count included a count

for ordinary negligence, and claimed that the facts underlying his premises liability claim also supported a public nuisance

count. Holcomb's efforts to recharacterize his premises

liability count were his third attempt to amend his complaint.

Holcomb was throwing darts until he could get a claim to stick

to the detriment of Moose Traxx, which had to repeatedly

research and rework its theory.

*8 Moreover, another amendment to add a public nuisance

claim would have been futile.

"A public nuisance involves the unreasonable interference with a right common to all members of the general public."

Adkins v. Thomas Solvent Co, 440 Mich. 293, 304 n. 8;

487 NW2d 715 (1992). "No better definition of a public

nuisance has been suggested than that of an act or omission

which obstructs or causes inconvenience or damage to the

public in the exercise of rights common to all Her Majesty's

subjects." Garfield Twp v. Young, 348 Mich. 337, 341-

342; 82 NW2d 876 (1957) (quotation marks and citation

omitted). [Sholberg v. Truman, 496 Mich. 1, 6-7; 852

NW2d 89 (2014).]

" 'It is not necessary, however, that the entire community

be affected, so long as the nuisance will interfere with those

who come in contact with it in the exercise of a public

right.' " Garfield Twp, 348 Mich. at 342, quoting Prosser, Torts, § 71, pp 401, 402.

As described by this Court, the "unreasonable interference"

underlying a public nuisance claim includes:

(1) conduct that significantly interferes with public health, safety, peace,

comfort, or convenience; (2) conduct

that is prescribed by law; (3) conduct

of a continuing nature that produces a permanent or long-lasting effect, and,

as the actor knows or has reason to

know, has a significant effect on public

rights. [Wagner v. Regency Inn Corp, 186 Mich.App 158, 163; 463 NW2d

450 (1990).]

To be considered a public nuisance,

the activity must be harmful to the

public health, or create an interference

in the use of a way of travel, or affect

public morals, or prevent the public

from the peaceful use of their land and

the public streets. The question in each

case is one of fact, and in each case

we must consider the facts peculiar to

that particular case. [Garfield Twp, 348

Mich. at 342 (citations omitted).]

Consistent with these standards, the Supreme Court has found

a public nuisance in the face of an actual obstruction on a

public highway. See Long v. New York Central R Co, 248

Mich. 437; 227 NW2d 739 (1929) (where the flagman's

shanty was erected within the curbline of the road, impeding

traffic). But we are not faced with an actual obstruction to

the roadway. Rather, we are faced with an alleged obstruction




E. AMENDMENT

Finally, Holcomb contends that the circuit court should havegranted his motion to amend his complaint to add a claimthat the visual obstruction amounted to a public nuisance. Wereview such claims for an abuse of discretion. Tierney v. Univof Mich. Regents, 257 Mich.App 681, 687; 669 NW2d 575(2003).

MCR 2.116(I)(5) provides that when a court grants summarydisposition under MCR 2.116(C)(10), “the court shall give theparties an opportunity to amend their pleadings as provided byMCR 2 .118, unless the evidence then before the court showsthat amendment would not be justified.” MCR 2.118(A)(1)grants a party the right to file one amendment within 14 daysof receiving the defendant's answer. All other amendmentsrequire the court's permission or a stipulation of the parties.MCR 2.118(A)(2). The court rules dictate that “[l]eave shallbe freely given when justice so requires.” Id. “Leave to amendshould be denied only for particularized reasons, such asundue delay, bad faith, or dilatory motive on the movant'spart, repeated failure to cure deficiencies by amendmentspreviously allowed, undue prejudice to the opposing party,or where amendment would be futile.” Jenks v. Brown, 219Mich.App 415, 420; 557 NW2d 114 (1996).

Holcomb had already amended his complaint twice. Evenafter two amendments, Holcomb asserted (without seekingto amend) that his premises liability count included a countfor ordinary negligence, and claimed that the facts underlyinghis premises liability claim also supported a public nuisancecount. Holcomb's efforts to recharacterize his premisesliability count were his third attempt to amend his complaint.Holcomb was throwing darts until he could get a claim to stickto the detriment of Moose Traxx, which had to repeatedlyresearch and rework its theory.

*8 Moreover, another amendment to add a public nuisanceclaim would have been futile.

“A public nuisance involves the unreasonable interferencewith a right common to all members of the general public.”Adkins v. Thomas Solvent Co, 440 Mich. 293, 304 n. 8;487 NW2d 715 (1992). “No better definition of a publicnuisance has been suggested than that of an act or omissionwhich obstructs or causes inconvenience or damage to thepublic in the exercise of rights common to all Her Majesty'ssubjects.” Garfield Twp v. Young, 348 Mich. 337, 341–

342; 82 NW2d 876 (1957) (quotation marks and citationomitted). [Sholberg v. Truman, 496 Mich. 1, 6–7; 852NW2d 89 (2014).]

“ ‘It is not necessary, however, that the entire communitybe affected, so long as the nuisance will interfere with thosewho come in contact with it in the exercise of a publicright.’ “ Garfield Twp, 348 Mich. at 342, quoting Prosser,Torts, § 71, pp 401, 402.

As described by this Court, the “unreasonable interference”underlying a public nuisance claim includes:

(1) conduct that significantly interfereswith public health, safety, peace,comfort, or convenience; (2) conductthat is prescribed by law; (3) conductof a continuing nature that produces apermanent or long-lasting effect, and,as the actor knows or has reason toknow, has a significant effect on publicrights. [Wagner v. Regency Inn Corp,186 Mich.App 158, 163; 463 NW2d450 (1990).]

To be considered a public nuisance,

the activity must be harmful to thepublic health, or create an interferencein the use of a way of travel, or affectpublic morals, or prevent the publicfrom the peaceful use of their land andthe public streets. The question in eachcase is one of fact, and in each casewe must consider the facts peculiar tothat particular case. [Garfield Twp, 348Mich. at 342 (citations omitted).]

Consistent with these standards, the Supreme Court has founda public nuisance in the face of an actual obstruction on apublic highway. See Long v. New York Central R Co, 248Mich. 437; 227 NW2d 739 (1929) (where the flagman'sshanty was erected within the curbline of the road, impedingtraffic). But we are not faced with an actual obstruction tothe roadway. Rather, we are faced with an alleged obstruction

RE

CE

IVE

D by M

SC 11/27/2019 12:25:22 PM

























of visibility at the intersection of a sidewalk and a business

driveway. "[A]n unreasonable interference with a public right includes significant interference with the public safety."

Askwith v. Sault Ste Marie, 191 Mich.App 1, 6; 477 NW2d

448 (1991). As described in relation to a public nuisance

claim against the government in avoidance of governmental

immunity:

This is not to say that any interference

with public safety is sufficient to

establish a public nuisance. If this were

the case, then every case involving

negligence by the government would

necessarily compel the conclusion

that the public nuisance exception to

immunity would be applicable. That

is, any negligence by the government

that results in injury to a plaintiff

necessarily involves interference with

the public safety. To conclude that

any such interference with the public

safety is tantamount to being a public

nuisance would result in the exception

consuming the rule. Clearly, the public

nuisance exception is not so broad. The limitations on the exception are

End of Document

clearly expressed in the Restatement:

the interference must be unreasonable.

[Id. at 6-7 .]

*9 The same reasoning is true in relation to the open and

obvious doctrine. If every land condition that interferes in any

small way with public safety could be considered a public

nuisance, the open and obvious doctrine would be swallowed

whole.

This small and obvious visual obstruction at the intersection

of a public sidewalk with a private business's parking lot does

not constitute a public nuisance. Accordingly, the circuit court

did not abuse its discretion in denying Holcomb's third request

to amend the complaint.

We affirm.

SHAPIRO, J. (concurring).

I concur in the result only.

All Citations

Not Reported in N.W.2d, 2016 WL 805635

© 2019 Thomson Reuters. No claim to original U.S. Government Works.




of visibility at the intersection of a sidewalk and a businessdriveway. “[A]n unreasonable interference with a publicright includes significant interference with the public safety.”Askwith v. Sault Ste Marie, 191 Mich.App 1, 6; 477 NW2d448 (1991). As described in relation to a public nuisanceclaim against the government in avoidance of governmentalimmunity:

This is not to say that any interferencewith public safety is sufficient toestablish a public nuisance. If this werethe case, then every case involvingnegligence by the government wouldnecessarily compel the conclusionthat the public nuisance exception toimmunity would be applicable. Thatis, any negligence by the governmentthat results in injury to a plaintiffnecessarily involves interference withthe public safety. To conclude thatany such interference with the publicsafety is tantamount to being a publicnuisance would result in the exceptionconsuming the rule. Clearly, the publicnuisance exception is not so broad.The limitations on the exception are

clearly expressed in the Restatement:the interference must be unreasonable.[Id. at 6–7 .]

*9 The same reasoning is true in relation to the open andobvious doctrine. If every land condition that interferes in anysmall way with public safety could be considered a publicnuisance, the open and obvious doctrine would be swallowedwhole.

This small and obvious visual obstruction at the intersectionof a public sidewalk with a private business's parking lot doesnot constitute a public nuisance. Accordingly, the circuit courtdid not abuse its discretion in denying Holcomb's third requestto amend the complaint.

We affirm.

SHAPIRO, J. (concurring).I concur in the result only.

All Citations

Not Reported in N.W.2d, 2016 WL 805635

End of Document © 2019 Thomson Reuters. No claim to original U.S. Government Works.

RE

CE

IVE

D by M

SC 11/27/2019 12:25:22 PM





received by msc 11/27/2019 12:25:21 pm · michigan defense trial counsel’s brief amicus curiae...

Documents