In Michigan, premises liability hinges on the condition of the premises, but the conduct of the landowner may also be a significant factor. Three cases from the Michigan Supreme Court illustrate the interplay of the condition of the property and conduct of the landowner in the determination of premises liability.
Premises Liability and Criminal Activity
In the consolidated cases of Mason v Royal Dequindre, Inc., and Goodman v Fortner, the high court held that merchants can be liable in tort for failing to take reasonable measures to protect their invitees from harm caused by the criminal acts of third parties. Both cases involved injuries to patrons of bars.
No Premises Liability if Criminal Activity Not Known
In Mason, the court found that the criminal attack upon the plaintiff was unforeseeable where the plaintiff was not a participant in a previous fight which involved his assailant. When the plaintiff left the bar after looking for his friend who was involved in the fight with the assailant, the assailant struck him breaking his nose and jaw. The incident occurred on the premises of the defendant bar.
In finding that the bar had no duty to take reasonable measures to protect the plaintiff, the court stated that the plaintiff had no involvement in the original altercation, was not near the area where the initial fight occurred and, after the two involved in the previous fight were separated, the bouncers from the bar escorted them out. In that the defendant was unaware that the plaintiff was in danger when he left the bar, and that the assailant was still on the premises, the facts did not support a finding that the attack was foreseeable.
Premises Liability if Criminal Activity Foreseeable
In Goodman, however, the court found that there was ample evidence that the defendant knew or should have known about an ongoing altercation because the plaintiff was personally threatened, the plaintiff had specifically requested the bars bouncers to call the police and when the bouncers opened the door to allow the plaintiff to leave, the assailants were visible, audible and yelling at the plaintiff.
Therefore, the defendant was on notice that the plaintiff was in danger, and, given two previous shootings had occurred in the defendant's parking lot not long before the subject shooting, the court found that a reasonable jury could also find that the defendant did not take reasonable steps to prevent the plaintiff's injury. Although the defendant forcefully removed the assailants from the bar, they did not attempt to remove the assailants from the property. The court also noted that the defendant failed to call the police when the plaintiff requested it.
The Mason and Goodman decisions follow the national trend which is that there is no duty for a premises owner regarding the criminal act of a third person unless the harm was foreseeable to the premises owner. Although not expressly articulated in these decisions, Mason and Goodman employ the "totality of circumstances" test which is also applied on a national scale.
Premises Liability and the Function of the Building
The majority of States have held that a municipal corporation is liable for a dangerous or defective building if the defect is related to the functioning of the building.
In DeSanchez v Michigan Dept. of Mental Health, the court found that a public building defect claim was not barred by the defense that hospital staff members' proper supervision of the patients using that building would have prevented the harm from occurring. Plaintiff brought suit alleging that a dangerous or defective condition existed in the Ypsilanti Regional Psychiatric Hospital, where the decedent hanged himself from an overhead dividing bar inside a toilet stall while he was on general suicidal precautions.
Plaintiffs argued that the design of the bathroom was dangerous or defective in light of suicidal tendencies of its users. Defendants argued that the exception for public buildings should apply, which would dictate liability only for failure to repair or maintain the building and not the design. Further, Defendants argued that they had government immunity for the tort liability of the inadequate supervision of the nursing staff. [M.C.L. § 691.1407(1).]
The court determined that the government was not immune from dangerous or defective condition of the building itself in light of the uses of the building or the room. Further, the court reasoned that the lack of supervision of the plaintiff did not excuse a true building defect.
In order for the plaintiff to prevail, the court found that he was not required to present evidence that more extensive supervision could not have prevented the suicide or that such supervision could not have been reasonably implemented in order to defeat the defendant's motion for summary disposition. The court stated that as long as a physical defect in a public building coincided in causing an injury, the government entity having control of the building may be liable even if negligent supervision is involved.
Premises Liability and Open and Obvious
In Singerman v Municipal Service Bureau, Inc., the supreme court issued a divided opinion regarding the "open and obvious danger" defense. The majority rule is that a premises owner owes no duty to its invitee regarding an "open and obvious" danger. [See Lugo v. Ameritech Corp., Inc. for a discussion of the doctrine.] Most of these States have held that where the condition remains unreasonably dangerous despite the "open and obvious" character of the condition, only then will a premises owner be required to act affirmatively to warn and/or to protect the invitee.
Plaintiff argued that he sustained an eye injury when hit by a hockey puck during a hockey scrimmage at the arena in which he was playing. Plaintiff claimed the injury was caused by inadequate lighting and the defendant's failure to enforce rules requiring coaches and players to wear helmets. The court noted that the owners and occupiers of land have a special relationship with their invitees but that there was nothing unusual about the inadequate lighting in a hockey rink to cause such a duty to remain.
The plaintiff was an adult and an experienced hockey player. There was nothing to prevent the plaintiff from realizing that the rink was inadequately lighted, nor was there any chance that he would forget the potentially hazard condition because the condition was constantly before him. Finally, the plaintiff was not compelled to use the rink for work or profit, or any other overriding or substantial motivation. He chose to participate in a dangerous sport under the conditions that he knew to be dangerous.
All of the justices agreed that the plaintiff could not proceed on the theory that the defendant was negligent for failing to enforce wearing of helmets when plaintiff failed to show that the alleged negligence caused the harm. The court split 3 to 3 on the duty that a possessor owes to invitees when there is an open and obvious danger on the premises. The split opinion resulted in affirmance of the Court of Appeals decision granting summary disposition.
The court noted that owners and occupiers of land have a special relationship with their invitees but that there was nothing unusual about the inadequate lighting in a hockey rink to cause such a duty to remain.
As the cases above illustrate Michigan courts will find liability if a dangerous condition is either known to exist or is foreseeable. However, the courts do not make a landowner the insurer of safety for conditions that they do not know about or for an open and obvious condition.