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A Rose by Any Other Name: Court of Appeals Reaffirms That the Open and Obvious Doctrine Cannot be Avoided by Simply Pleading “Ordinary Negligence”
Richard v Meijer, Inc, unpublished opinion per curiam of the Court of Appeals, issued April 23, 2019 (Docket No. 342766) underscores that when a plaintiff’s injury arises from an allegedly dangerous condition on the premises, the action sounds in premises liability rather than ordinary negligence, even when the plaintiff alleges that the premises possessor created the condition.
In premises liability, a landowner has no duty to protect or warn an invitee of open and obvious conditions “because such dangers, by their nature, apprise an invitee of the potential hazard, which the invitee may then take reasonable measures to avoid.” Richard, unpub op at 6.
“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 a casual inspection.” Richard, unpub op at 6. In Richard, “water or clear liquid” on “the white tile floor” of a retail store was held to be open and obvious where the Plaintiff and other witnesses testified that it was visible immediately after the accident. Id. at 1, 7.
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