Novotney v. Burger King Corp. , 188 Mich. App. 705 ( 1991 )

Murphy, J.

We granted rehearing of this appeal to reconsider the circuit court’s order granting summary disposition in favor of defendants. We now reverse.

This is a negligence case arising out of a fall that occurred on defendants’ premises. Plaintiffs were business invitees at defendants’ restaurant and, while leaving the restaurant, plaintiff Luella Novotney, an elderly woman, slipped on a ramp directly adjacent to the sidewalk coming out of the restaurant and is alleged to have fractured and severely sprained her left ankle. The ramp was a handicap access ramp, apparently the same color and made up of the same materials as the adjacent sidewalk, and gradually declined on its sides to the level of the parking lot. Plaintiff testified at deposition that she did not realize that the ramp gradually declined and that she lost her balance when her foot came down lower than she expected. It was claimed that the ramp’s gradual slope down to the parking lot caused her to fall and fracture her ankle. At the hearing on the motion for summary disposition, plaintiffs presented the affidavit of their construction safety expert, who opined that the ramp was defective in that it was improperly designed or maintained. The trial court, in granting defendants summary disposition, concluded that the nature of the ramp and any danger presented by the ramp was open and obvious.

The question presented by the trial court’s conclusion in this case is whether plaintiffs’ claim fails because there is no duty to warn a business invitee of an open and obvious danger.

Although it has been stated that the occupier of land is not an insurer of the safety of the invitee, there remains the basic duty to exercise reasonable care for the protection of the invitee. Kroll v Katz, 374 Mich 364, 373; 132 NW2d 27 (1965); Powers v Huizing, 9 Mich App 437, 441; 157 NW2d 432 (1968); Prosser & Keeton, Torts (5th ed), § 61, p 425. This is so because there is an implied representation made by the occupier of the land to the invitee that it has been prepared for the invitee’s reception. Prosser & Keeton, 422. Thus, the land must be reasonably safe for the visit. Torma v Montgomery Ward & Co, 336 Mich 468; 58 NW2d 149 (1953). The duty of the possessor of land to an invitee is adequately set forth in a standard jury instruction, SJI2d 19.03.

Defendants rely on Williams v Cunningham Drug Stores, Inc, 429 Mich 495; 418 NW2d 381 (1988), for the proposition that an occupier of land does not owe a duty with respect to dangers which are so obvious and apparent that the invitee may be expected to discover them himself. Although such dicta does appear in Williams, we do not read the holding in Williams to stand for that proposition. Unlike this case, Williams did not deal with a claimed physical defect in the business owner’s premises. Further, the issue addressed in Williams was a limited one, to-wit, "whether a merchant’s duty to exercise reasonable care includes providing armed, visible security guards to protect invitees from the criminal acts of third parties.” Id., 500. We conclude that Williams is neither factually nor legally controlling.

Recently, however, this Court did examine the application of the so-called "no duty to warn of an open and obvious danger rule” in a premises liability case. In Riddle v McLouth Steel Products Corp, 182 Mich App 259, 263-266; 451 NW2d 590 (1990), this Court held that the no-duty rule should be abolished in Michigan, stating in part:

We believe that the no-duty rule, like assumption of the risk, should be abolished in Michigan. See Felgner v Anderson, 375 Mich 23, 54; 133 NW2d 136 (1965). Both the invitee and invitor have a. duty to exercise reasonable care under hazardous circumstances. Public policy supports apportionment of damages according to fault. Therefore, the invitee’s knowledge of a dangerous condition is properly considered as it relates to the invitee’s negligence and mitigation of damages in accordance with comparative negligence principles. See, e.g., Forche v Gieseler, 174 Mich App 588, 597; 436 NW2d 437 (1989). The obviousness of the danger may relate to the negligence of both the invitor and the invitee. However, it does not automatically absolve the invitor of liability. [Id., 266.]

See also Pressley v VFW Memorial Home, Inc, 185 Mich App 709; 462 NW2d 830 (1990). We are in agreement with Riddle and Pressley.

A rule of law which provides that a business invitor who creates or allows an open and obvious danger on his premises has no duty to its invitees to correct it because it is open and obvious is not rational. Rather, questions concerning the conduct of the invitee and the obviousness of the danger as they relate to whether either the invitor or the invitee, or both, were negligent are better resolved by the trier of fact. Riddle, supra. Cf. Quinlivan v Great Atlantic & Pacifíc Tea Co, Inc, 395 Mich 244, 261; 235 NW2d 732 (1975) (the hazards of snow and ice accumulation are not obvious to all; the invitee’s conduct was relevant in the context of contributory negligence).

In the present case, plaintiffs were able to establish questions of fact concerning whether the handicap access ramp was defective and whether the hazard created by the ramp was open and obvious. Therefore, summary disposition was inappropriate.

Reversed and remanded.

Michael J. Kelly, J., concurred.