Opinion
No. 123459.
October 3, 2003.
Leave to Appeal Denied.
No. 123459; Court of Appeals No. 239627.
I concur in the denial of the application for leave to appeal in this case. I write separately to note that Justice CAVANAGH'S position is inconsistent with the law in this state. Contrary to the thrust of his statement, the determination of whether a particular open and obvious condition is nonetheless unreasonably dangerous is made using an objective, not subjective, standard. As we said concerning the merits of the reasonable person standard in Radtke v. Everett, 442 Mich 368 (1993), the chief advantage of this standard is that it allows triers of fact to look to "a community standard rather than an individual one, and at the same time to express their judgment of what that standard is in terms of the conduct of a human being." Id. at 390-391, quoting Restatement Torts, 2d, § 283, comment c. With regard to premises liability, we recently reaffirmed that this standard applies there also when we said in Lugo v. Ameritech Corp, 464 Mich 512, 518 n 2 (2001), that whether "a plaintiff . . . [has] a particular susceptibility to injury . . . [is] immaterial to whether an open and obvious danger is nevertheless unreasonably dangerous." See also Lauff v. Wal-Mart Stores, Inc, 2002 US Dist LEXIS 19080 (WD Mich, 2002) (an invitee's blindness is immaterial to whether an open and obvious danger is unreasonably dangerous). It is thus the case that the Court of Appeals decision affirming the trial court's order granting summary disposition, which followed the law, was proper.
My fellow justices who are voting to deny leave to appeal should be thankful that there is not an open and obvious doctrine that applies to legal analysis. If there were, they would be found to have clearly stumbled over what is so plain in this case-what is open and obvious to the sighted is not necessarily open and obvious to the blind.
Leave should be granted to explore how this Court's explanation of the open and obvious doctrine in Lugo v. Ameritech Corp, Inc, 464 Mich 512 (2001), relates to those with disabilities. At the very least, this issue presents a factual question for the jury regarding whether plaintiff behaved reasonably such that he would be able to discover open and obvious impediments. I would grant leave to appeal.
KELLY, J. I join in the statement of Justice CAVANAGH.