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Court of Appeals Finds it Obvious that Open and Obvious Doctrine Applies to Trip and Fall in Retail Aisle
Barriger v Bon-Ton Department Stores, unpublished opinion per curiam of the Court of Appeals, issued June 20, 2019 (Docket No. 339317), underscores that when a plaintiff’s injury arises from an allegedly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.
“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.” Barriger, unpub op at 5. In Barriger, an “orange rug” that was “a wholly different color than the rest of the carpet” was held to be open and obvious. Id.
Barriger, unpub op at 3, also rejected the argument that the “standard for storekeepers … is separate from the open and obvious danger doctrine….” The panel cited Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich App 710, 715-718 (2007) for the proposition that “the open and obvious danger doctrine” applies “to claims alleging that a shopkeeper failed to keep store aisles safe for customers.” Barriger, unpub op at 3.
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