Disaster averted: Michigan retailers still get to use the open-and-obvious doctrine in premises liability cases


It’s pretty basic, really. If a person slips or trips over something that they saw or could have seen, that person doesn’t get to recover from the property owner for the resulting injuries. That’s the upshot of the open-and-obvious doctrine. It’s rooted in the idea that we are all responsible, first and foremost, for our own safety. And it’s frequently the first line of defense in a premises liability action.

But that wouldn’t have been the case for retail stores if the majority in Quinto v Woodward Detroit CVS, LLC, (Apr. 29, 2014) had their way. Fortunately for store owners, a poll of all of the judges on the Court of Appeals kept the law as-is, which means that retailers still won’t be liable when customers slip or trip over open and obvious conditions in their stores.

In Quinto, the plaintiff was injured when she tripped over a platform used for display items in the defendant’s store. She said that she was looking at cereal and didn’t see the floor-level platform. She sued the defendant, alleging a premises liability claim. The trial court granted summary disposition for the defendant under the open-and-obvious doctrine. The Court of Appeals, in a split-opinion, affirmed—reluctantly.

The majority explained that the Michigan Supreme Court has held that store owners have a duty to provide “reasonably safe aisles for customers.” And relying on a 1972 Supreme Court decision involving the now-defunct contributory negligence doctrine, the majority said that so-called “self-service stores” (read: most all retailers) are “fundamentally different” from other properties because the proprietors put up displays that are intended to attract the customer’s attention. The majority concluded that the open-and-obvious doctrine shouldn’t be an available defense for self-service stores in premises liability cases. It offered a policy-based rationale, opining that eliminating the open and obvious doctrine for retailers would “allow[] the greatest degree of commercial freedom and access while also minimizing the social costs of unnecessary injuries.” It cited no studies and relied solely on its own inferences for that rationale.

But the majority had to stop short of adopting its preferred policy. The Supreme Court had never considered whether the open-and-obvious doctrine applies to floor-level hazards in self-service stores. But a prior panel of the Court of Appeals had addressed the issue and held that the open and obvious doctrine doesapply to floor-level hazards in self-service stores. That led to the majority’s reluctant affirmance of the trial court’s ruling for the defendant.

The majority also called to convene a special panel of the Court of Appeals to decide whether the law should be changed. Judge Cavanagh, writing in dissent, saw no need to call for a departure from existing law.

All of the Court of Appeals judges were polled. When the votes were tallied, a majority voted to keep the law as-is.

The ultimate result in Quinto is good news for retailers, whose costs-of-doing-business likely would have increased substantially had they been held liable for every trip and slip on a readily apparent object on the floor of their stores. It’s also likely good news for other businesses. While the majority limited its discussion to self-service stores, there is little reason to believe that its rationale couldn’t or wouldn’t be extended to restaurants that have TVs or artwork on their walls. And once the “self-service store restriction” is lifted, the rule could plausibly extend to any other businesses or properties that have some “distracting” aspect to them.

But we don’t have to cross that bridge. The open-and-obvious doctrine remains a viable defense in Michigan.

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