Open and Obvious Hazards While Entering the Workplace may be Effectively Unavoidable
Name: ESTATE OF DONNA LIVINGS v SAGE'S INVESTMENT GROUP, LLC
Court/ Judge: Michigan Supreme Court—Opinion by Justice David VIVIANO, joined by Chief Justice MCCORMACK and Justices BERNSTEIN and CAVANAGH
Decided: June 30, 2021.
The Michigan Supreme Court authored a new decision on June 30, 2021 in Estate of Donna Livings v. Sage's Investment Group, LLC. The decision provides that a plaintiff may create a question of fact as to whether an open and obvious hazard is effectively unavoidable if an employee is forced to confront the hazard to enter the work place.
The Plaintiff, Livings, was heading into work from the employee parking lot and slipped on ice as she crossed the lot on foot to get to work. Livings sued her employer, Grand Dimitre's of Eastpointe Family Dining; and the owner of the property Sage's Investment Group, LLC and T &J Landscaping who also leased space from Sage's. Livings alleged negligence under premises liability against all three (3) defendants. Sage's moved for Summary Disposition which was denied based on the trial court's finding a question of fact, but granted for the remaining defendants. Sage's sought appeal where the decision was affirmed, and thereafter Sage's sought further appeal with the Supreme Court who granted leave and heard oral argument from the parties. Livings died in March of 2020 and her estate was substituted as the plaintiff.
A hazard can be deemed effectively unavoidable to prevent application of the Open and Obvious Doctrine if the plaintiff confronted the hazard to enter their place of employment for purposes of work. In these circumstances, the Court held that it is possible for a defendant to foresee that the employee will confront the hazard. The fact that the employee could have failed to report to work as required by their employer is not a reasonable alternative. The standard for being effectively unavoidable is that a person must be required or compelled to confront the dangerous hazard. Accordingly, the trial courts addressing this issue will need to consider whether a reasonable person in the plaintiff's circumstances would have used had any available alternatives to avoid the hazard.
The Court's opinion is narrow, and application of this standard will heavily depend on the facts in the case, but the key is whether alternative methods of access were available and would have been used by a reasonable person in the employee's circumstances. If an employee could have avoided the condition through the use of due care under the circumstances, then the condition was not effectively unavoidable. Another consideration is whether the employee would need to breach the employer's policies in order to avoid the condition and what the consequences of that breach might be. What a court cannot conclude however, is that a hazard was avoidable simply because the employee could have elected to skip work or breach other requirements of their employment.
It should be noted that while this decision diverges from the precedent set in Hoffner v Lanctoe, 492 Mich 450 (2012), it does not overrule the underlying principle of the decision. Rather, the Court believed that confronting a hazard while going to work, for work purposes, fits into the special circumstances established in Hoffner to create a question of fact as to whether the hazard was effectively unavoidable. The dissenting justices were concerned with the deviation from precedent, and that a plaintiff focused or subjective inquiry will lead to inconsistent rulings based on special circumstances of each plaintiff at issue. While this is a valid concern moving forward, the voluminous Opinion appears to be limited to premises liability actions resulting from the employer/employee relationship. There are no indications currently that the Court will apply this reasoning to find that hazards are effectively unavoidable in other invitee contexts, such as a person having to run into a grocery store to buy food or pick up a prescription medication at pharmacy. However, the language in the Opinion does indicate a potential for future application outside the employee relationship with the right set of facts.
Ultimately, the application will likely be determined on a case-by-case basis, and we intend to closely monitor the evolution of this decision and its progeny to provide additional guidance.