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The Path Less Traveled: Danger of Falling in a Ravine at Night is Open and Obvious

Premises Liability / May 7, 2019

Roe v Mich Int’l Speedway & Live Nation Worldwide, unpublished opinion per curiam of the Court of Appeals, issued April 18, 2019 (Docket No. 342857), underscores that the open and obvious doctrine – which the Supreme Court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.

“The standard for determining if a condition is open and obvious is whether an average user with ordinary intelligence would have been able to discover the danger and risk presented upon casual inspection.” Roe, unpub op at 2.

A land owner may still have liability for an open and obvious condition if “special aspects” make the risk presented by that condition “unreasonable.” Id. at 3. 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.

As Judge Gleicher’s partial concurrence and partial dissent illustrates, premises liability is ultimately a negligence theory and liability must be based on some fault on the part of the property owner or possessor.

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