good morning mark runs out on behalf of the plaintiff appellant as i have already advised your clerk i'd like to reserve five minutes for medical twenty six years ago the machine supreme court decided a case called riddle versus macleod s adopted for the first time what has become known in michigan is the open an obvious danger defense since riddle was decided as the court probably knows it is completely changed the landscape if you will of michigan premises liability law it is generated how it was cases hundreds and hundreds of cases this case another premises liability case as two factors in it one of which i think is unique to the hundreds of cases that the michigan courts have addressed on open an obvious danger the other one is quite unusual in michigan law with respect to open obviously unique factor is i believe in every single case to the michigan courts have encountered in the subject of open obvious danger the person who slips the person who trips is the person who's injured in this case is unusual unique in fact  because the person who is injured in this case is not the person who tripped or slipped it's the person that the person who slipped or tripped was carrying the second unusual thing about this case obviously is that involved a one published michigan court of appeals case on the subject is the braiding case break in recognizes that there are basically two strains of michigan law on the subject one of which is of course the open to obvious danger defen adopted by the supreme court in riddle the other one is a long line of michigan case law that recognizes that the standard of care applicable to a child a minor is different than that which applies to an property and there's danger on the property the michigan courts have found on line of cases that even a trespassing child is entitle to protection in that circumstance is something that certainly would not apply to an adult what the braking court ultimately found was that there would they would recognize that the open obvious danger defense doesn't fact apply to a minor but it applies differently it applies instead of to a reasonably careful adult as it does in all the other cases involving adults it would be construed from the perspective of the child reasonably careful  minor and the trial judge and the district court judge in this case did in fact recognize brigham and did in fact recognize that break in required perspective the perspective of the child then the district court however didn't apply the break in doctrine instead applied a doctrine that applied the adult standard applied to the mother i think i should tell you in light of the dearth of the michigan case law on the subject i are going to case on tuesday of this week in the michigan court of appeals i think the court should be aware of the case i argued largely because there's so little case law in michigan on this subject but i have a ca cake on tuesday before a panel of the mission court of appeals that does involve a number of factors that in a play here the the question is whether the negligence of a parent can in fact be applied to a child's claim it also will address the question i assume it's going to address obviously i'm not writing the opinion of the question of the open an obvious danger defense as it applies to a child something that obviously pregnant addressed the third issue that's involved in this case that i argued on tuesday is whether the open obvious danger offense even applies to a child under the age of seven because michigan law does recognize that the negligence of a child  a child under the age of seven is incapable of negligence either being sued for or being charged with comparative fault as a result the case just sort of court knows is good when she o case law on the subject and i really do anticipate that goodwin is going to be a published opinion because of the importance of the issues that are addressed in that particular case i think the case might be something that the court might have in its possession i don't know how it's going to be decided but the but the point is under brady and the district court in this case should have adopted the perspective of the child that would break in says we have in this world was the child the child is twenty one months old i believe so while that age have much of a perspective and if the answer is no then are you saying that if a child is involved it's strict liability or no absolutely not absolutely not because you think about this number one the plaintiff in this case has to establish that this in this  platform whatever it is for motorcycles is in fact negligent that's not strict liability i believe if the defendant has protected its interests that is why i don't wake at any trial i believe also that the mother's potential negligence would in fact be something under michigan law that would subtract from any recovery that the child might have so we have a situation where clearly the plain ff has to prove that number one it was in fact negligent to have this this motorcycle matter whatever you have there's no strict liability to that the plaintiff would also i think have to account for the negligence of the mother and of again as i mentioned goodwin has that issue in it there's a question of whether the parents negligence could in fact could in fact be attributed under michigan law to reduce the award that's record for the for the plaintiff for the child but this is not this is pretty far from strict liability and of course they have to prove causation as well i'm struggling to figure out that even if you had something which needed to be looked at under the open and obvious danger standard but you're talking about somebody who can't perceive and on an obvious danger we are talking about one to facts that's what the open obvious dangerous is one the facts they the defendant has obviously multiple to francis to a case of this type they would i presume under braking if braking applies in this situation simply seems to say to me that this is a question that must be presented to the jury whether it is in fact open and obvious from the perspective of the trial but the fact is that's the only defense they would lose in if in point of fact this case gets reversed please this is not a situation of some sort of automatic girls liability if they don't have open an obvious danger correct  it was it was open and obvious of the conditions for a woman and just the sound would seem to be irrelevant the whole case term turned turns on whether the conditions were open and obvious to the mother would you agree with that no i don't agree with that i know what i'm out on the stand is impossible for the baby to know anything about whether the condition was of one and because if that's true and i assume a jury would be presented with that situation governed by michigan premises liability law the child is injured the child is in invitee all my position is that this is this child is treated separately from the the mother and that's all it's the separation of the mother and the child that's what braden is about i mean obviously if there's an order in the answer is no then you would say that that regardless of what the danger would've looked like to someone else it's not open and obvious the simple fact is we have a defense it's an objective standard that's what open and obvious danger has become in michigan law it's an objective standard the question presented to the break in court was this if you have an objective standard a reasonable person standard is that reasonable person standard are going to apply to the injury to a child that occurs on somebody else's property and what the court of appeal said in that case was no we are not going to apply a reasonable person parenthesis adult standard we are going to apply a reasonable minder of that child's capabilities there's no question there's no question that if this child if this child was walking in the country and tripped over the state ok there is no question that that would in fact be governed by a break and no question now the question is is it different because he's being held in his mother's arms and my suggestion is that brigand does not  versus fourteen years old versus twenty one years old is immaterial to this whole situation the minor didn't have an in judge clay you hit it on the had the man who was being carried by her mom by his mother he had no ability to do anything other than sit there and hang on so whether or not he was able to appreciate that there was a slight elevation difference in the parking lot has nothing to do with this case the question is what duty did my client to these invitees under the circumstance and what we know is that they don't contest that this is open and obvious that's not being contested here all they're arguing is that someone who actually wasn't the person that tripped on it shouldn't be subject to that doctor and i would agree i would disagree with mr gross not also that it's a defense quote unquote what the open obvious doctrine is in the state of michigan is a definition of the duty owed a landowner promises oh no it's not a defense it sets forth what is the duty that that promises promises owner of us and what we acknowledge in the state of michigan is that there is something there to be seen a quote unquote defect and i'm not conceding that this is a condition in the parking lot that you see everywhere you can walk outside of this courtroom in cincy similar things that are intended to be there ok they're claiming it's a quote unquote assignment error here was these invitees to warn or protect him from this quote unquote defect the fact that the injured party was twenty one months old has nothing to do with it in the situation because he was not the one that tripped this is no different in the situation what now what caused that her tripping on the quote unquote defect and do i have a cause of action against lifetime fitness i'm a forty seven year old male who can appreciate what's going on there i mean invitee did they owe me a obvious but i still side with the person behind me didn't and it wasn't open so we would have a three part exactly you would have i would have a claim against mrs kinnaman for being negligent in tripping and falling into me but would life time fitness into that circumstance a duty they wouldn't and that's what michigan law says the purpose of the open and obvious doctrine is in you have this here to a lesser extent than we do up in michigan but we can't you know with the phrase lost cycles it's an acknowledgement that it would be economically impossible for for premises owners business owners to make completely flat surfaces everywhere it's an acknowledgement that look life is not perfect our world is not perfect and you can't force a business owner to make sure everything is completely flat so if there's something there to be seen it's there to be seen and a business owner does not have a duty to warn or protect of it it's that's immaterial we have case on the state of michigan where someone that's blind trips and falls over something there's no duty oh to a blind person that's any greater than someone's sight if you're carrying a package and you're in front of you and you can't see that's immaterial this is the same situation here the court got this right judge lawson hit it on the head this is what he said in his opinion whether a reasonable two year old being carried by his mother would discover the danger and appreciate the risk of harm posed by the motorcycle parking pad is immaterial the relevant inquiry as in robinson which was the case i had blood on the report is whether an average person with ordinary intelligence would have discovered the elevated motorcycle parking pad in the parking lot upon casual inspection the relevant inquiry was what duty did we know we didn't owe twenty one month old the twenty one month old child that got hurt any heightened duty because he was being carried in his mother's arms that day if in my circumstance where i get injured by mrs kim and falling into me my lifetime didn't owe me any heightened duty because i wasn't the one that directly tripped on the on the alleged defect none whatsoever we can't have that we can't separate it based on well ok this this invitee directly got injured versus being caught you know in the in the that's collateral damage by someone who tripped and fell that's not what the law in the state of michigan is here so the you know the cases that come with the one case that's being relied upon by this breaking case means nothing to this case that's a case where there was an attractive nuisance child child climbed to jacob's ladder ten feet up in fell and broke his wrists and the question was whether or not he was old enough to appreciate that there wasn't enough straw beneath a ladder to in the event that he fell to  fall that was the relevant inquiry in that case not similar at all to what we have here the second aspect of i was granted summary judgment on the open obvious doctrine but i'd also argue that what we're looking at here is not an unreasonable danger it's a parking lot it's an intended motorcycle parking pad that is put there because if you put your kickstand down on an asphalt parking lot specially during the summer months there's a good chance that your kickstands going to start sinking into the asphalt so you will see it in a lot of parking lots there are dedicated motorcycle parking pads this was one of them was there a slight height differential between the asphalt and the concrete yes there was it was maybe an inch but it was an intended feature of the parking lot it was not a defect it was not something that it heaved it was not a pothole it wasn't cracked so what are we talking about here if there's  steps from the parking lot up to the sidewalk is that a defect because someone may have missed it no it's not that's an intended intended feature just because someone trips and falls on something doesn't make automatically make it dangerous or make it a defect and that's what we have here we can't just because the fall occurred doesn't mean that this was a dangerous defect or a dangerous instrumentality on the on the  now the fact is defective one side of the chisel down convinced judge lawson at least in his opinion that it was a recognition that the that the defendants were aware of some danger presented by that that is enough for the issue of is far fetched to say the least let me just say something about duty in premises liability law in light of the arguments that's been made duty in premises liability law is completely different than duty in any other area of michigan law in one very important respect and that is if i manufacture a product for example my duty exists before there's any injury to my duty is i have to design that  project the product correctly before there's any injury that's my duty what's different about duty in michigan premises liability law is it's not determined believe it or not until after an injury occurs and why is that it's because the who gets injured and the character of who gets injured does in fact have to be factored into the question of duty the most obvious example is  invitee we don't know who is going to be injured and the fact is that michigan has adopted one other characteristic of the person being injured as reflective of duty and that's minority status that's what bryggen is about we can't talk about duty before the injury occurs because we don't know who has been injured because who gets injured counts under michigan prime premises liability law and my