Court of Appeals Considers Slippery Premises Liability Question, Again Finding “Black Ice” Open and Obvious and not “Effectively Unavoidable”

Haggart v Hills of Regency I Condominium Assoc, unpublished opinion per curiam of the Court of Appeals, issued February 21, 2019 (Docket No. 341007) underscores that the open and obvious doctrine – which the Supreme Court has described “as an integral part of the definition of” a property owner’s duty, Lugo v Ameritech Corp, 464 Mich 512, 516 (2001) – continues to be a formidable defense to a wide range of premises liability claims.

“Whether a danger is open and obvious depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection.” Haggart, unpub op at 3-4, quoting Hoffner v Lanctoe, 492 Mich 450, 461 (2012).

A landowner may still have liability for an open and obvious condition, but only if “special aspects” make the risk presented by that condition “unreasonable.” Haggart, unpub op at 4. A condition presents “special aspects” when “the danger is unreasonably dangerous or when the danger is effectively unavoidable.” Id. “Neither a common condition nor an avoidable condition is uniquely dangerous.” Id.

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