If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

-1-

S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

SUSAN BLACKWELL,

Plaintiff-Appellant,

FOR PUBLICATION

March 14, 2019

v No. 328929

Oakland Circuit Court

DEAN FRANCHI and DEBRA FRANCHI, LC No. 14-141562-NI

Defendants-Appellees.

ON REMAND

Before: K. F. KELLY, P.J., and GLEICHER and SHAPIRO, JJ.

K. F. KELLY, P.J. (dissenting).

Once again, I respectfully dissent. 

In my previous dissent, I expressed consternation that an invited guest would enter a 

darkened room to confront what she claims to be unknown and unidentified dangers and then be 

heard to complain when the homeowners failed to ensure her safety. I approached the matter 

through the lens of whether the “danger” plaintiff confronted was open and obvious. Our 

Supreme Court has left intact the majority’s opposite conclusion that questions of fact remain as 

to whether the condition was open and obvious. Blackwell v Franchi, 502 Mich 918; 914 NW2d 

900 (2018), slip op, p 1. However, the Court remanded the case for us to consider defendants’ 

alternative argument that no duty existed. In essence, the Supreme Court concluded that our 

previous opinions may have placed the cart before the horse by discussing the open and obvious 

danger without first ascertaining whether defendants owed plaintiff a duty in the instance.

The Supreme Court’s order sets forth the duty owed by premises owners to licensees as 

found in Restatement Torts, 2d, § 342, p. 210:

A possessor of land is subject to liability for physical harm caused to 

licensees by a condition on the land if, but only if,
-2-

(a) the possessor knows or has reason to know of the condition and should 

realize that it involves an unreasonable risk of harm to such licensees, and should 

expect that they will not discover or realize the danger, and

(b) he fails to exercise reasonable care to make the condition safe, or to 

warn the licensees of the condition and the risk involved, and

(c) the licensees do not know or have reason to know of the condition and 

the risk involved. [Blackwell, 502 Mich 918, slip op, p 1 (quotation marks and 

citations omitted).]

The Court added:

If the defendants had no duty to warn of the condition because it did not “ 

‘involve[ ] an unreasonable risk of harm to [the plaintiff]’ ” or was not one that 

the defendants “ ‘should expect that [the plaintiff would] not discover,’ ” the 

plaintiff’s prima facie negligence claim fails, regardless of the openness and 

obviousness of the condition. . . .A question of fact as to the openness and 

obviousness of the step is irrelevant if there is no prima facie claim. There is no 

need to “attack[ ] the duty element” if the defendants owed no duty in the first 

place. [Blackwell, 502 Mich 918, slip op, p 2.]

The Court noted that defendants had argued “that the particular condition complained of here—a 

single step in a dark room—was not a condition that a licensee would not know of or have reason 

to know of that posed an unreasonable risk of harm such that the defendants had a duty to warn.” 

Id. To that end, the Supreme Court remanded:

for consideration of this issue it has not yet addressed: whether defendants owed 

plaintiff a duty to warn about the step because the plaintiff did not know or have 

reason to know of the condition and the risk involved, and it involved an 

unreasonable risk of harm, and the defendants should not have expected that a 

licensee like the plaintiff would discover or realize the danger . . . . [Id.

(quotation marks omitted)]

On remand, the majority effectively leapfrogs over our only task – determining whether 

defendants owed plaintiff a duty– and inexplicably discusses at length defendants’ “standard of 

care.” The majority relies on Case v Consumers Power Co, 463 Mich 1, 7; 615 NW2d 17 

(2000), for “guidance on how to analyze whether a particular action or omission violates a

general standard of care or general duty.” Ante, p 2. However, the case had nothing to do with 

premises liability. At issue in Case was whether the trial court erred when it instructed the jury 

that the defendant, a power company, was required to inspect and repair its electrical lines 

because electricity was inherently dangerous. The Court was asked to address the standard of 

care applicable to providers of electricity in stray voltage cases. It determined that the “general 

standard of care is always ‘reasonable care,’ and it is for the jury to determine whether the 

defendant’s conduct in a given case fell below that standard.” Case, 463 Mich at 3. 

The Case Court set forth the elements needed to establish a prima facie case of 

negligence: “(1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) 

causation, and (4) damages.” Id. at 6 (footnote omitted). “The disputed instruction in [Case]
-3-

was intended to aid the jury in determining whether defendant breached its duty to plaintiffs to 

exercise ‘reasonable care.’ ” Id. (emphasis added). Therefore, the issue in Case had nothing to 

do with whether the defendant owed the plaintiffs a duty in the first instance; rather, the issue 

was whether the defendant breached that duty. Case has no application here where our Court’s 

remand order specifically provides that “there is no need to attack the duty element if the 

defendants owed no duty in the first place.” Blackwell, 502 Mich at 918.

In keeping with the Supreme Court’s remand order in this case, I would find that the step 

at issue did not give rise to a duty to warn and, absent a duty to warn, defendants cannot be held 

liable. The step is remarkable only because it was in a dark room. However, that does not mean 

that the step posed an unreasonable risk of harm to plaintiff or that defendants should have 

expected that plaintiff would not discover the step. 

I do not mean to say that, as a matter of law, a homeowner will never owe a guest the 

duty to warn about a condition in a dark room, but, as Justice McCormack aptly notes: 

The Restatement contemplates that a licensee will discover “conditions which are 

perceptible by his senses, or the existence of which can be inferred from facts 

within the licensee’s knowledge.” Restatement, § 342, comment f, p. 212. Some 

conditions in a dark room will be more predictable than others . . .. The 

Restatement’s standard thus assigns the homeowner a duty commensurate with 

the hazard: a slipper on the floor in a dark mudroom is different than an open 

shark tank in that same dark room. I trust the Court of Appeals can evaluate 

based on the record where the 8-inch step falls on that continuum. [Blackwell, 

502 Mich 918, slip op, pp 3-4 (MCCORMACK, J., concurring).]

In reviewing the Supreme Court’s remand order, concurrence, and dissent, the issues to be 

addressed are whether the condition itself – an unremarkable step –posed (1) an unreasonable 

risk of harm or (2) whether defendants should have expected that plaintiff would not discover the 

step. 

The majority appears to concede that the unremarkable step did not pose an unreasonable 

risk of harm. It focuses entirely on whether defendants should have anticipated that plaintiff was 

not in a position to discover the step. However, there was nothing to suggest that defendants 

should have known that plaintiff would not discover the step. Defendants were entitled to 

“expect that plaintiff would ‘be on the alert to discover conditions which involve[d] risk’ to her.” 

Blackwell, 502 Mich 918, slip op, p 14 (MARKMAN, J., dissenting), quoting Restatement, § 342, 

comment f, p. 212. I agree with Justice Markman’s statement that “a social host is entitled to 

expect that social guests reasonably will discover for themselves commonplace potential dangers 

on the land without the assistance of an affirmative warning.” Id. I fully agree with Justice 

Markman’s conclusion:

I would reiterate today the principle of our common law that a social host may not 

be held liable for injuries suffered by a social guest from an allegedly dangerous 

condition of the land when the host had no reason to expect that the guest would 

reasonably fail to discover the condition. That is, hosts are not required to 

monitor or surveil their guests to ensure that they do not suffer injury from 
-4-

commonplace household conditions, conditions to which the hosts and their 

families themselves are ordinarily and routinely subject. Here, plaintiff was 

injured when she stepped into the darkened mudroom without turning on the light 

or otherwise ascertaining that it was safe to enter. In my judgment, the law 

should not hold defendants liable when they had no reason to expect that 

plaintiff—or any other guest—would fail to exercise their own reasonable 

precautions. [Id.]

Far from being a comparative negligence analysis, the focus remains on the condition at issue (an 

unremarkable step) and defendants’ reasonable expectations.

I would affirm the trial court’s order on the alternative basis that defendants owed 

plaintiff no duty under the circumstances. 

/s/ Kirsten Frank Kelly