Under Michigan’s open-and-obvious doctrine, injured plaintiffs generally cannot recover damages for dangerous conditions that they knew about or should have known about. In Rivera v Lowe’s Home Center, LLC (Docket No. 348032), the Michigan Court of Appeals emphasized that the doctrine only comes into play after the plaintiff identifies a defect in the land that presents an unreasonable risk of harm. Because Plaintiffs Lawrence and Kerrie Rivera failed to present any evidence that the parking lot and crosswalk at issue were dangerous or defective, the Court of Appeals affirmed summary disposition in favor of the defendants. Collins Einhorn’s Richard Joslin and Fawzeih Daher were defense counsel in the trial court and on appeal, playing a pivotal role in the victory.
Background on Rivera
Lawrence was struck by a car in the parking lot of a Lowe’s home improvement store. He claimed that he became pinned between two vehicles while walking inside a crosswalk approaching the retailer. Subsequently, Rivera and his wife filed a premises-liability action against Lowe’s. Among other things, they alleged that the crosswalk’s markings were confusing, violated recognized safety standards, and were unreasonably dangerous. After exchanging discovery with Lowe’s—including a surveillance video of the incident, the Riveras amended their complaint to add Lowe’s landlord as a defendant.
In lieu of answering the complaint, the landlord moved for summary disposition on three grounds. Lowe’s concurred in the motion.
First, the landlord asserted, based on the surveillance video, that Rivera wasn’t struck by a car while inside the crosswalk. Rather, the car hit him as he was “walking through ‘the traffic lane for cars turning into parking lanes.’” Rivera, unpub op at 2. Consistent with the landlord’s contention, the surveillance video showed a large SUV stop just before the crosswalk for a pedestrian. It then showed the Riveras walking around and behind that vehicle. While they were behind the SUV, an approaching car failed to stop, rear-ending the SUV and hitting Lawrence.
Second, the landlord contended that the Riveras couldn’t establish that the parking lot posed an unreasonable risk of harm. Third, the landlord argued that the car’s failure to stop was the sole proximate cause of the accident.
The trial court granted the landlord’s motion for summary disposition, forming the basis of the appeal.
The Court of Appeals’ Ruling
The Riveras challenged the trial court’s grant of summary disposition on three grounds. They argued that (1) summary disposition was premature; (2) special aspects precluded the application of the open-and-obvious doctrine; and (3) the surveillance video was inadmissible because it hadn’t been authenticated.
Addressing the video first, the Court of Appeals held that the recording was substantively admissible evidence, and the landlord was not required to lay a foundation for its admission before the trial court could consider it. The Court also noted that the Riveras received a copy of the video before the landlord filed the motion for summary disposition. So they had plenty of time to address any concerns about its authenticity. Thus, the trial court properly considered the evidence.
Looking next to the open-and-obvious doctrine, the Court considered the Riveras’ claim that “the crosswalk that Rivera avoided had ‘special aspects’ rendering it defective and dangerous, and those aspects proximately caused the accident.” Rivera, unpub op at 3. Quoting Lugo v Ameritech Corp, Inc, 464 Mich 512, 519; 629 NW2d 384 (2001), the Court explained that “special aspects” are “conditions on the land that create a ‘uniquely high likelihood of harm’ or serious injury.” Rivera, unpub op at 3-4. The Court also noted that Richardson v Rockwood Ctr, 275 Mich App 244, 248-249; 737 NW2d 801 (2007), “held that even those parking lots lacking signs or ‘other traffic control devices’ did not harbor any special aspects.” Rivera, unpub op at 4. Because the Riveras failed to identify any specific special aspects in the parking lot, the Court of Appeals held that summary disposition was proper. Additionally, considering the video evidence and Richardson’s holding, there wasn’t a fair chance that further discovery would uncover factual support for the Riveras’ position. “[T]he mere invocation of a term like ‘special aspects’ does not establish a triable issue of fact.” Id.
Lastly, the Court of Appeals explained that the circuit court’s exclusive reliance on the open-and-obvious doctrine was misplaced. The lower court skipped an important first step: “determining whether the parking lot or the crosswalk was unreasonably dangerous.” Id. The Riveras claimed that they would present evidence on this issue after discovery closed. But they failed to produce an affidavit under MCR 2.116(H) or other documentary evidence supporting their argument that summary disposition was premature. The Court of Appeals explained that a mere promise to produce supporting evidence in the future cannot forestall summary disposition. Because the Riveras failed to carry their burden by presenting evidence indicating that the parking lot was dangerous, dismissal was proper.
Rivera is an important reminder that courts and litigants must consider the first step in the premises-liability analysis before jumping to the open-and-obvious doctrine. The starting point is determining whether the premises at issue is unreasonably dangerous. If there’s no evidence of an unreasonable risk of harm, it’s unnecessary to consider whether the alleged danger was open and obvious. Rivera also provides insight regarding the arguments and facts necessary to obtain—or preclude—summary disposition on open-and-obvious grounds.
More broadly speaking, Rivera may reflect a distinction in the Court of Appeals’ approach to premises-liability actions involving parking lots based on whether the area had traffic control signals or signs. In Richardson, 275 Mich App 244, the Court held that parking lots that lack signs or other traffic control devices are commonplace and do not harbor special aspects. That case remains good law. Rivera, on the other hand, seems to suggest that summary disposition would have been inappropriate if the Riveras had provided some evidence that the parking lot at issue was confusing, defective, or dangerous. That would be similar to another unpublished opinion issued after Richardson: Fowler v Menard, Inc. (Docket No. 310890).
In Fowler, a customer died after being struck by a car while walking in a crosswalk in Menard’s parking lot. The plaintiff presented expert testimony that the parking lot design combined with the lack of signage was “substandard for safety.” Fowler, unpub op at 2. The Court of Appeals majority affirmed the trial court’s denial of summary disposition, agreeing that there were issues of fact as to whether the crosswalk constituted a special aspect. But it suggested that its holding was tailored to the specific facts in that case: the crosswalk was designed to alter the nature of the parking lot, and the expert report supported a finding that the crosswalk gave pedestrians a sense of safety or distracted them from known risks. Still, the dissent explained that Richardson already held that lack of signage in a parking lot is a common condition and doesn’t constitute a special aspect.
Future decisions will likely provide further insight regarding the application of the open-and-obvious doctrine in cases involving parking lots.
If you have questions about the nuances of Michigan’s open-and-obvious doctrine, please feel free to contact the author, Christopher J. Petrick. More information about Collins Einhorn’s General and Automotive Liability Practice Group is available here.