Supreme Court Says “Open and Obvious” is Obviously Not Open to the Defense

The open and obvious doctrine does not apply to ordinary negligence claims. McMaster v DTE Electric Co, ___ Mich ___; ___ NW2d ___ (2019) (Docket No. 159062).

In McMaster, the Plaintiff was injured “when a large steel pipe rolled out of a container and struck him in the leg” as he was preparing to unload the container from a truck. McMaster v DTE Electric Co, unpublished opinion per curiam of the Court of Appeals, issued November 8, 2018 (Docket No. 339271), pp 1-2. Last week, the Supreme Court definitively stated that this “cause of action does not sound in premises liability but rather in ordinary negligence.”

The Supreme Court decided McMaster in only a 1-page memorandum order, so the precedential weight of this ruling is debatable. Such an order can be binding precedent “if it constitutes a final disposition of an application and contains a concise statement of the applicable facts and reasons for the decision.” DeFrain v State Farm, 491 Mich 359, 369-370 (2012).

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