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____________________________________ Michigan Supreme Court Lansing, Michigan 48909

C hief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion

Stephen J. Markman

FILED JULY 3, 2001

ODIS LUGO, Plaintiff-Appellee,

v No. 112575 AMERITECH CORPORATION, INC., Defendant-Appellant.

BEFORE THE ENTIRE BENCH TAYLOR, J. This premises liabil ity action arises from a fall in a parking lot possessed by defendant. Plaintiff apparently fell after stepping in a pothole in the parking lot. The circuit court granted summary disposition in favor of defendant, but the Court of Appeals reversed, rejecting defendant’s position that plainti ff’ s claim was barred by the “open and obviousdanger” doctrine. We reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court. The pothole was open and obvious, and plaintiff has not provided evidence of s peci al aspects of the condition to justify imposing liability on defendant despite the open and obvious nature of the danger. I Plaintiff was walking through a park ing lot toward defendant’s buil ding to pay a telephone bill when she apparently stepped in a pothole and fell. Plaintiff testified at her deposition that she was not watching the ground and that she was concentr ating on a truck in the parking lot at the time. However, she also testified that nothing would have prevented her from seeing the pothole. Defendant moved for summary disposition, claiming that the pothole constituted an open and obvious danger from which it had no duty to protec t pl aintiff. 1 The circuit court granted the motion, stating: I am going to take the position that there is no material question of fact. I think it is quite clear that t he lady was walking along without paying proper attention to the circumstances where she was walking, and there is a legal duty to look

1 The motion for summary dispositionwas filed under both MCR 2.116(C)(8) and (C)(10). While not expressly stated, it is clear that the trial court granted the motion under subsection(C)(10) because the trial court’s discussion involved evidence beyond the pleadings. 2where you are walking. I can’t be anymore precise than that. The Court of Appeals rever sed the grant of summary dispositionin a two-to-one de cision . The Court of Appeals majority concluded that the circuit court erred in holding that plaintiff’s legal duty to look where she was walking barredher claim. The Court stated that, under principles of comparative negligence, a plaintiff’s negligence can only reduce the amount of recovery, not eliminate alto gether a defendant’s liability. The Court also determined that the open and obvious danger rule did not apply because there was a genuine issue of material fact regarding whether defendant shouldhave expected that a pedestrian might be distracted by the need to avoid a moving vehicle, or might even reasonably step into the pothole to avoid such a vehicle. We disagree wi th the holding of the Court of Appeals. Further, while we do not embrace the reasoning of the circuit court, we agree with its result. II The proper focus in this case is the extent of the open andobvious doctrine inpremises liability cases. In general,

a premises possessor owes a duty to an invitee to exercise reasonable care to protect the invitee from an unreason abl e risk of harm caused by a dangerous condition on the land. Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 N W2d 185 3(1995). However, this duty does not generally encompass removal of open and obvious dangers: [W]here the dang ers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, an invitor owes no duty to protect or warn the inv itee unless he should anticipate the harm despite knowledge of it on behalf of the invitee. [ Riddle v McLouth Steel Products Corp, 440 Mich 85, 96; 485 NW2d 676 (1992).] Accordingly, the open and obvious doctrine should not be viewed as some type of “exception” to the duty generally owed invitees, but rather as an integral part of the definition of that duty. This Court further elaborated in Bertrand, supra at 611: When§§ 34 3 and 343A [of the Restatement Torts, 2d] are read together, the rule generated is that if the particular activity or condition creates a ri sk o f harm only because the invitee does not discover the condition or realize its danger, thenthe open and obvious doctrine will cut off liability if the invitee should have discovered the condition and realized its danger. On the ot he r hand, if the risk of harm remains unreasonable, despite its obviousness or despite knowledge o f it by the invitee, then the circu mstanc es may be such that the invitor is required to undertake reasonable precautions. In sum, the general rule is that a premises possessor is not required to protect an invitee from open and obvious dangers, but, if special aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to prot ect invitees from that risk. 4The following language fr om Be rtrand provides a more concrete discussion of these abstract concepts: Wi th t he axiom being that the duty is to protect invitees from unreasonable risks of harm, the underlying principle is that even though invitors have a duty to exercise reasonable care in protecting their invitees, they are not absolute insurers of the safety of their invitees. Quinlivan[ v The Great Atlantic & Pacif ic T ea Co, Inc, 395 Mich 244, 261; 235 NW2d 732 ( 1975 ).] Consequently, because the danger of tripping and falling on a step is generally open and obvious, the failure to warn theory cannot establish liability. However, th ere may be special aspects o f th ese particular steps that make the risk of harm unreasonable, and, accordingly, a failure to remedy the dangerous condition may be found to have breachedthe duty to keep the premises rea sonably safe. [ Bertrand, supra at 614.] Consistent with Bertrand, we conclude that, with regard to openand obvious dangers, the critical question is whether there is evidence that creates a gen uine issue of material fact r egar ding whether there are truly “special aspects” of the open and obvious condition that differentiate the risk from typical open and obvious risks so as to create an unreasonable risk of harm, i.e., whether the “special aspect” of the condition shouldprevail in imposing liability upon the defendant or the openness and obviousness of the condition should prevail in barring liability. Anillust rati on of such a situation might involve, for example, a commercial building with only one exit for the general public where the floor is covered with standing water.

5While the condition is open and obvious, a customer wishing to exit the store must leav e the store through the water. In other words, the open and obvious condition is effectively unavoidable. Similarly, an open and obvious condition might be unreasonably dangerous because of special aspec ts that impose an unreasonably high risk of severe harm. To use another example, consider anunguarded thirty foot deep pit in the middle of a parking lot. The condition might well be open and obvious, and one would likely be capable of avoiding the danger. Nevertheless, this situation would present such a substantial risk of deathor severe injury to one who fell in the pit that it wouldbe un reasonably dangerous to maintain the condition , at least absent reasonable warnings or other remed ial measures being taken. 2 In sum, only those special

2 In considering w heth er a condition presents such a uniquely dangerous potential for severe harm as to constitute a “special aspect” and to avoid barrin g liab ility in the ordinary manner of an open and obvious danger, it is important to maintain the proper perspective, which is to consider the risk posed by the condition a priori, that is, before the incident involved in a particular case. It would, for example, be inappropriate to conclude in a retros pe ctive fashion that merely because a particular plaintiff, in fact, sufferedharm or even severe harm, that the condition at issue ina case posed a uniquely high risk of severe harm. This is because a plaintiff may suffer a more or less severe injury because of idiosyncratic reasons, such as having a particular susceptibility to injury or engaging inunforeseeable conduct, that are immaterial to whether an open and obvious danger is neverthel ess unreasonably dangerous . Thus, contrary to the possible implication of Justice Weaver’s concurrence, this opini on d oes not allow the imposition of liability merely (continued...) 62 (...continued) because a particular open and obvious condition has some potential for severe harm. Obviously, the mere ability to imagine that a condi tio n could result in severe harm under highly unlikely circumstances does not mean that such harm is reasonably foreseeable. However, we believe that it would be unreasonable for us to fail to recognize that unusual open and obvious conditions could exist that are unreasonably dangerous because they present an extremely high risk of severe harm to aninvitee who fails to avoid the risk in circumstances where there is no sensible reason for such an inordinate risk of severe harm to be presented. We consider it unnecessary to express a view as to how Singerman v Municipal Service Bureau, Inc, 455 Mich 135; 565 NW2d 383 (1997), should have been decided. Nevertheless, we do not perceive why Justice Weaver concludes that this opinion would seem to require that “the question whether the risk of harm caus ed b y the lighting defect [in Singerman ] was unreasonable despite its obviousness would be for the jury.” Post at 3-4. We express no view on that question. Further, as reflected in the result of the present case, this opinion does not preclude a grant of summary disposition in favor of a defendant in a premises liability actionwhere no reasonable person could conclude that the open and obvious condition at issue involvedspecial aspects that presented an unreasonable risk to invitees. Finally, to get to the heart of this, what concerns us about Justice Weaver’s position is that it might be taken to meanno matter what the open and obvious peril, even a thirtyfoot-deep unguarded or unmarked pothole, if it was open a nd obv ious , no tort claim would lie. While we imagine that Justice Weaver would deny that such a result would follow from her position, she seems to reject the idea “that the degree of potential harm is relevant to whether the risk of harm posed by a condition remains unreasonable despite its obviousness.” Post at 2. Yet, it appears obvious to us that the degree of potential harm from an open and obvious condition may, in some unusual cir cum stances, be the key factor that makes such a conditionunreasonably dangerous. To consider our admittedly extreme example, while it is reasonable to expect invitees to avoid common potholes, that does not mean it is reasonable to leave a gaping hole in a parking lot even though the difference in the degree of harm likely to follow from an (continued...) 7aspects that give rise to a uniquely high likelihood of harm or severity of harm if the risk is not avoided will serve to

remove that condition from the open and obvious danger doctrine. 3 How ever, typical open and obvious dangers (suc h a s ordinary potholes in a parking lot) do not give rise to these special aspe cts. 4 Using a common pothole as an example, the conditionis open and obvious and, thus, cannot form the basis of liability against a premises possessor. The condition does not involve an especially high likelihood of injury. Indeed,

an“ordinarily prudent” person, Bertrand, supra at 615, would typically be able to see the pothole and avoid it. Further, there is little risk of severe harm. Unlike falling an extended distance, it cannot be expectedthat a typical person tripping on a pothole and falling to the ground would suffer

2 (...continued) invitee’s failure to avoid the hazard is the only ma terial difference between the two situations.

3 Contrary to the indication of Justice Weaver’s concurrence, post at 1, our conclusion regarding the special aspects of an open and obvious condition that are required in order to remove such a condition from th e sco pe of the open andobvious doctrine is not mere “dicta.” On the contrary, the lack of such special aspects in the present case forms the basis of our holding that defendant was entitled to a grant of summary disposition in its favor.

4 Indeed, the result t hat we reach in the present case underscores that vitality of the open and obvious doctrine as a bar to liability in cases involving typical open and obvious conditions such as the common pothole at issue in this case. 8severe injury.

III Applying these general principles to the case at hand, we conclude that defe ndan t was entitled to summary disposition under MCR2.116(C)(10), which provides for summary disposition when“[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” Further, the party opposing a motion for summary disposition (inthis case plaintiff) is requiredbyMCR 2.116(G)(4) to “set forth specific facts showing that there is a genuine issue for trial” with regard to the issues raised in the summary disposition motion. In this case, the disputed issue

was whether plai ntiff’ s claim was barred by the open and obvious danger doctrine. The evidence submitted to the trial court allows for no genuine issue of material fact with respect to whether plaintiff’s claim was ba rred b y the open and obvious danger doctrine. This case simply involved a common pothole in a parking lot. While plaintiff argues that the pothole was filledwith debris, the evidence presented to the trial court simply does not allow a reasonable inference that the pothole

was obsc ure d by debris at the time of plaintiff’s fall.

9Indeed, plaintiff’s testimony at her deposition was that she did not see the pothole because she “wasn’t looking down,” not because of any debris obscuring the pothole. The present case is substantially similar to Maurer v Oakland Co Parks & Recreation Dep’t, one of the two consolidatedcases decided by this Court in Bertrand. In Maurer, the plaintiff slipped andfell on an“unmarked cement step” as she was leaving a rest room area at a park. Th e plaintiff alleged that the defendant was negligent for not marking the step with a contrasting color or warning of the existence of the step. Bertrand, supra, at 618 . Similar to plaintiff in the present case tr ippi ng over the pothole because she did not see it, the plaintiff in Maurer testified at her deposition that she “just didn’t see the step there.” Id. at 619. The Bertrand Court heldthat the defendant in Maurer was entitled to summary disposition on the basis of the open and obvious danger doctrine because the p laintiff had shown nothing unusual about the step: The plaintiff’s only asserted basis for finding that the step was dangerous was that she didnot see it. We hold that the plaintiff has failedto establish anything unusual about the step

. . . . Because the plaintiff has not presented any facts that the step posed an unreasonable risk of harm, the trial court properly granted summary disposition. [ Id. at 621 (emphasis in the original).] 10Insum, the plaintiff in Maurer could not avo id summary dispositionbecause the evidence showed only that she tripped andfell on a common step th at s he failed to notice. 5 Likewise, the evidence in the present case reflects that plai nti ff tripped and fell on a common pothole because she failedto notice it. While plaintiff argues that moving vehicles in the parking lot were a distrac tion, there is certainly nothing “unusual” about vehicles being driven in a parking lot, and, accordingly, this is not a facto r tha t removes this case from the open and obvious danger doctrine. In Bertrand, this Court stated: [B]ecause steps are the type of everyday occurrence that people encounter, under most circumstances, a reasonably prudent person will look where he is going, will observe the steps, and will take appropriate ca re for his own safety. Under ordinary circumstances, the overriding public policy of encouraging people to take reasonable care for their own safety precludes imposing a duty on the possessor of land to make ordinary st ep s “foolproof.” Therefore, the risk of harm is not unreasonable. [ Id. at 616-617.] Likewise, potholes in pavement are an“ev eryday occurrence” that ordinarily should be observed by a reasonably prudent

5 This should not be understood as meaning that the claim of the plaintiff in Maurer was barred because she didnot use appropriate care for her own safety. The level of care used by a particular plaintiff is irrelevant to whether the condition created or allowed to continue by a premises p osse ssor is unreasonably dangerous. Rather, the important poin t is t hat the plaintiff in Maurer offered nothing to distinguishthe steps at issue from ordinary steps in terms of the danger that they presented. 11person. Accordingly, in light of plaintiff’s failure to show special aspects of the pothole at issue, i t did not pose an unreasonable risk to her. While we agree with the result reached by the trial court, we consider it important to disapprove part of its apparent rationale. The trial court’s remarks indicate that it may have granted summary disposition infavor of defendant because the plaintiff “was walking along without paying proper attent ion to the circumstances where she was walking.” However, in resolving an issue regarding the open and obvious doctrine, the question is whether the condition of the premises at issue was open and obvious and, if so, whether there were special aspects of the situation that nevertheless made it unreasonably dangerous. In a situ ati on where a plaintiff was injured as a result of a risk that was truly out sid e the open and obvious doctrine and that posed an unreasonable ris k o f harm, the fact that the plaintiff was also negligent would not bar a c ause of a ction. This is because Michigan follows the rule of comparative negligence. Under comparative negligence, where both the plaintiff and the defendant are culpable of negligence with r egar d to the plaintiff’s injury, this reduces the amount of damages the plai ntiff may recover but does not preclude recovery altogether. See, e.g., Riddle, supra at 98 (under comparative

12negligence, “a defendant may present evidence of a plaintiff’s negligence in order to reduce liability”). Ac cordingly, it is important for courts in deciding summary disposition motion s bypremises possessors in “open andobvious” cases to focus on the objective nature of the conditionof the premises at issue, not on the subjective de gree of care used by the plaintiff. In the present case, there was no evidence of special aspects that made the open and obvious pothole unreasonably dangerous. IV There is much agreement between our opinion and the

concurrence authored by Jus tice Cavanagh. We agree “that a premises possessor is not generally required to protect an invitee from open and obvious dangers.” Post at 2. We also agree that, consistent with the 2 Restatement Torts, 2d, §§ 343 and 343A, circumstances may arise in which an open and obvious condition is nevertheless unreasonably dangerous so as to give rise to a duty upon a premises possessor to in some

manner remove or otherwise appropriately protect invitees ag ain st the danger. We further agree that any comparative negligence by an invitee is irrelevant to whether a premises possessor has breachedits duty to that invitee inconnection withan open and obvious danger because an invitee’s comparative neglig ence can only serve to reduce, not

13eliminate, the extent of liability. As we understand it, Justice Cavanagh’s basic position is that the inquiry into whether an open and obvious condition is unreasonably dangerous should not be focused on whether that conditioninvolves spe cial aspects that distinguish it from ordinary open and obvious conditions. We disagree because we believe that this “special aspects” inquiry serves to concretely focus trial courts on the showing that must be made inevaluating motions for summary disposition in this context. Inour view, this approach is consist ent w ith § 343A of the Restatement, which indicates that a possessor of land is only liable to invitees for harm caused by an obvious condition if the possessor should “anticipat e t he harm.” Post at 5. Simply put, there must be something out of the ordinary, in other words, special, about a particular open a nd o bvious danger in order for a premises possessor to be expected to anticipate harm from that condition. Indeed, it seems obvious to us that if an open and obvious condition lacks some type of special aspect regarding t he l ikelihood or severity of harm that it presents, it is not unreasonably dangerous. We cannot imagine an open and obvious condition that is unreasonably dangerous, but lacks special aspects making it so. 6

6 Justice Cav anagh states that “[a] more correct statement of the law [in Bertrand, supra ] would have been to (continued...) 14Justice Cavanagh agrees with our conclusion that plaintiff has failed to establish that the pothole in the present case “presented an unreasonable risk of harm.” Post at 21. In this opinion, we explain concretely why that is so. It is because the evidence proffered by plaintiff establishes nothing more than the existence of a common, ordinary pothole. Because of the great variety of circumstances in which premises liability claims may be raised, it may be practically impossible to demarcate the extent of a premises possessor’s duties with great precision. Nevertheles s, w e believe that

our approach, focusing on the existence or absence of special aspects of an open and obvious danger, will guide the trial courts in considering whether particular open andobvi ous conditions posed an unreasonable risk of harm bet ter than wouldbe the case without this further exposition of the open and obvious doctrine. Finally, in response to Justice Weaver’s concurrence, this opinion does not require a premises owner or possessor to be an “insurer of the s afety of invitees.” Post at 5. Indeed, our resolution of the present case in favor of

6 (...continued) say that the duty to exercise reasonable care is not breached in cases i nvolving ordinary steps.” Post at 18. We agree that ordinary steps cannot be considered to present an unreasonably dangerous risk of harm. This is consistent with our focus on the existence or absence of special aspects of an open and obvious condition. 15defendant would belie any such a claim. However, a premises possessor does have a duty to undertake reasonable efforts to make its premises reasonably safe for its invitees. This opinionattempts to provide a further explanation of the scope of that duty. For the above reasons , w e reverse the judgment of the Court of Appeals and reinstate the judgment of the c irc uit court. C ORRIGAN , C.J., and Y OUNG and M ARKMAN , JJ., concurred with T AYLOR , J.

16S T A T E O F M I C H I G A N SUPREME COURT

ODIS LUGO,

v Plaintiff-Appellee, No. 112575 AMERITECH CORPORATION, INC., Defendant-Appellant.

_____________________________ CAVANAGH, J. ( concurring ). This premises liability suit arises out of the plaintiff’s claim that she fell and injured herself after stepping into a pothole in the defendant’s parking lot. The circuit court granted defendant summary disposition, and the Court of Appeals reversed. The majority now reverses the Court of Appeals, and holds that (1) the pothole was open and obv ious , and (2) there is no justification for imposing liability onthe defendant despite the open and obvious nature of the danger presented by the pothole because the plaintiff failedto provide evidence that the pothole had “special aspects.”I jointhe m ajority’s decision to reverse the Court of Appeals and reinstate the judgment of the circ uit court because I agree that the plaintiff failed to establish a basis for imposing liability despite the open andobvious nature of the pothole. I also join the majority’s statement that the trial co urt erred in focusing on the plaintiff’s subjective degree of fault. However, I write separately to express my disagreement with the majority’s “special aspects” analysis. I would instead prefer to work with the premises liability law already offered by this Court and to adopt an approach more true to the Restatement. I. The Majority Approach The majority offers an approach to open and obvious danger cases that focuses on the sp ecial aspects of a condition: Insum, the general rule is that a premises possessor is not required to prote ct an invitee from open and obvious dangers, b ut, if special aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to protect invitees from that risk. [Slip op at 5.] I agree with the majority that a premises possessor is not generally required to protect an invitee from open and obvious dangers. Also, I agree with the majority that there are exceptions to the general rule. However, I disagree with the majority that the issue can be simply summarized in terms of

2whether “special aspects” of a condition make the risk of harm unreasonably dangerous. Instead, the C ourt must make two inquiries: (1) whether the possessor may be held l iabl e pursuant to the terms of 2 Restatement Torts, 2d, § 343, and (2) whether liability is suspended under § 343A. In order to determine whether liability should be i mpose d, a thorough considerationof the historical underpinnings of the open and obvious danger doctrine is in order. I offer such an analysis inthis opinion, with the hope that the majority opinion will not be read as limiting the scope of the doctrine. II. The Open and Obvious Danger Doctrine and the Restatement Approach Recovery has been barred in pr emise s liability cases involving open and obv iou s dangers for at least a century. See, e.g., Caniff v Blanchard Navigation Co , 66 Mich 638; 33 NW 744 (1887). The Restatement approach has been key to Michigan’s o pen and obvious danger law for almost as long. The first explicit reference incorporating the Restatement approach is Goodman v Theatre Parking, Inc , 286 Mich 80; 281 NW 545 (1938), where the plaintiff sought damages for a sp rainedankle sustained after stepping on a cinder in the defend ant' s parking lot. 1 Since that time, the Restatement

1At the time, 2 Restatement Torts, Negligence, under title of business visitors , § 343, set forth the following standard of care: (continued...) 3has been cited repeatedly, even after its text was cha nged. See Quinliven v Great Atlantic & Pacific Tea Co, Inc , 395 Mich 244; 235 NW2d 732 (1975)(quoting the Restatement with approval). It is safe to say that the cu rren t version of Restatement §§ 343 and 343A form the basis for Michigan’s open and obvious decisional law. 2 A. What the Restatement says The applicable sections of the Restatement provide as follows: § 343. DANGEROUS CONDITIONS KNOWN TO OR DISCOVERABLE BY POSSESSOR A

possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reaso nable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to

1 (...continued) Apossessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but onlyif, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them. [ Goodman at 82.]

2 Section 343A was added to the Restatement after § 343, but the two sections are to be read together, as is indicated by comment (a) to § 343. 4protect them against the danger. § 343A. KNOWN OR OBVIOUS DANGERS (1) A possessor of land is n ot lia ble to his invitees for physical harm caused to them by any act ivity or condition on the land whose danger is knownor obvious to them, unless t he possessor should anticipate the harm despite such knowledge or obviousness. (2) In determining whether the possessor shou ld anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated. I read § 343 as pro viding a standard of care to be applied in cases where there exists a dangerous condition on the premises that the possessor knows about or could reasonably discover. 3 I f the possessor is charged with knowledge of the condition or the court finds that he could reasonably discover the condition, he can be liable if (1) he fails to exercise reasonable care to protect his invitees even though the possessor should realize that the condition poses

anunreasonable risk of harm to an invitee, and (2) he should realize that an invitee will e ither fail to discover the condition, or fail to appreciate the danger of the condition if it is discovered, or fail to protect himself from the danger even if discovered or realized.

3As will be explained, however, the Court has not provided a uniform inter pretation of the Restatement, and there has been some debate about whether the Restatement discusses duty or standard of care. 5More instructive is the text of comment (a) to § 343, whichprovides that “This section should be read together with § 343A, which de als with the effect of the fact that the conditionis known to the invitee, or is obvious to him . . . . In the interest of brevity the limitation is not repeated inthis section.” Comment (a) is helpf ul i n two ways: it illustrates that hidden or u nknown conditions can be distinguishedfrom known or obvious conditions and that § 343A is a rule designed to limit liability, whereas § 343 is designed to allow for the imposition of liability. It is important to realize that the comments to § 343A begin by saying, “The rule stated in this subsection applies to all persons who enter or remain on land in the capacity of invitees, as defined by § 332.” (Emphasis added.) Thus, though §§ 343 and 343A must be read together, I believe that § 343A needs to be read as its own rule, and not as an exceptionto § 343. The general rule provided by § 343A is that a possess or of land is not liable to his invitees for injuries caused by activities or conditions onthe land whose danger is known or obvious. The second clause of subsection (1) of § 343A provides the exception to thi s rule: if the posse ssor of land should anticipate the harm to the invit ee despite the invitee’s knowledge or the condition’s obviousness, the possessor will not be relieved of liability under the general open and obvious rule. 6B. Where does the Restatement come into play? The second imperative point to understand about Restatement §§ 343 and 343A is that they refer to the impositionof liability; they do not discuss whether a duty exists. In fact, one of the very first cases incorporating the Restatement into our jurisprudence stated, “2 Restatement of the Law of Torts, Negligence, under title of ‘business visitors,’ § 343, sets forth the following standardof ca re whichwe believe is applicable here . . . .” Nash v Lewis , 352 Mich 488, 492; 90 NW2d 480 (1958). In my view, § 343 and § 343A assume that a duty has been imposed by virtue of the possessor and invitee relationship, but that liability nonetheless can be limited under certain circumstances. Unfortunately, the Restatement does not explicitly lay out the standard of care, it simply says that a possessor of land “is subject to liability” in § 343 c ases , or “is not liable” in § 343A cas es. Thus, the Restatement only explicitly provides a liability shield. However, the Restatement’s use of phrases such as “should expect,” “unreasonable risk,” and “reasonable care” indicate that a premises possessor must protect his invitees “from an unreasonable risk of harm caused by a dangerous condition of the land that the landowner knows or should know the invitees will not discover, realize, or protect them selv es against.” Bertrand v Alan Ford, Inc , 449 Mich 6 06, 609; 5 37 NW2d 185 7(1995). Once this premises liability rule is plugged into the language of the Restatement, we would be left with the following rule in known or obvious danger cases: A possessor

owes his invitees a duty of reasonable care in order to protect them from an unreasonable risk of harm caused by a dangerous condition on the land; he breaches that duty by failing to protect his invitees from harm, though h e shou ld have anticipated that harm would result from the known or obvious danger despite the condition’s obvio usness or the invitee’s knowledge of the danger. Whenthe invitor breaches his duty of care in this manner, he can be subject t o liability for physic al harm caused to his invitees by a condition on the land if the conditions of § 343 are met. A

second inquiry would then be whether, despite the possibility that liability could normally be imposed against the possessor because he has failed to reasonably protect his invitee, the possessor can nonetheless avoid liability on the basis that the danger was known or obvious to the invitee. When the danger is obvious, or when the invitee knows of it, § 343A of the Restatement would suspend liability unless the pos sessor should anticipate harm flowing from the conditi o n despite the invitee’s knowledge of the condit ion or the obviousness of the condition.

8C. How the cases confuse the issue, and what contributory negligence has to do with it Unfortunately, the Restatement approach can be somewhat diff icu lt to apply because it bears some similarity to the contrib utory negligence doctrine. I believe that these similarities have caused Michigan’s case law on the open and obvious doctrine to be somewhat imprecise. The potential for confusionstems from the fact that, in bothcontributory negligence and in open and obviou s cases, liability can be suspended because of action(or inaction) on the part of the plaintiff. In both instances, a particular defendant may be absolved of liability for negligence even thoughhe owes a duty to the plaintiff. Despite that similarity, though, there is a distinct difference between the openand obvious rule and the rule of contributory negligence. In contributory negligence cases, a defendant is absolved of liability even where he acts completely negligently. Contributory negligence, a defensi ve m echanism, is based on the policy that damages are not recoverable wher e th e plaintiff and the defendant are both partially at fault. The openand obvious danger doctrine, on the other hand, relies on the standard of care. Where the defendant fails to protect his invitees from an unreasonable risk of harm posed by a foreseeable danger, he will be liable. If the defendant is absolved from liability under the open and obvious doctrine,

9the reason for the absolution is not that the plaintiff acted negligently. Instead, the reason is that the open and obvious danger of the conditionis a “circumstance” under the standard of care. The possessor will be deemed to have acted reasonably under those circumstances. The ide a t hat defendants should prevail where the plaintiff fails to heed an open and obvious danger has been aroundfor a while, but, unfortunate ly, th e focus on the standardof care has beenlost in some instances. The reason is partially that the open and obvious doctrine predates Michigan’s shift from contributory negligence to comparative negligence. In the era of contributory negligence, failure to precisely separate concepts of duty, liability, and standard of care bore little consequence because plaintiffs could lose simply by virtue of their own negligence. As Justice Levin pointedout in dissent in Riddle v McLouth Steel Products , 440 Mich85; 485 NW2d 676 (1992), these cont ribu tory negligence

cases sometimes expressed their holdin gs in terms of a “noduty” rule: that a possessor owes no duty to protect his invitees from open and obvious dangers. For example, in Caniff, the plaintiff sought to recover damages for an injury sustained when he fell through a hatchway left open on the deck of a ship. The Court denied recovery. The primary reasons for the denial were that (1) the plaintiff was an experienced sailor who was familiar with 10ships and who knew that hatchways were often left open while the ship was at port and, therefore, had reasonto expect that the hatchway he fell into would have been left open, (2) that the plaintiff failed to ex ercise due care when he walked carelessly forward in the dark, (3) that the plaintiff’s actions constituted inexcusable negligence, and (4) that the general premises liability rule would not apply in cases where the plaintiff knows or should know that danger exists because it is upon the plaintiff to avoid the peril. In other words, reducedto its simplest terms, Caniff held that the plaintiff should have known better and should have looked where he was going. In Garrett v WS Butterfield Theatres , Inc , 261 Mich 262; 246 NW 57 (1933), the plaintiff was injured while entering a restroom. The entryway required patrons to step down into the restroom. Plaintiff failed to see the step, and fell upon entry. The Cou rt stated that “[d]ifferent floor levels in private and public buildings, connected by steps, are so common that the possibility of their presence is anticipated by prudent persons. The construction is not negligent unless, by its cha ract er, location, or surrounding circumstances, a reasonably prudent person would not be likely to expect a step

or see it.” Id . at 263-264. The Court denie d recover y, stat ing that the defendant was not guilty of negligence because it owed no duty to “prevent careless persons from 11hurting themselves.” Id. at 264. Althoughthese two early cases cited by the parties addressedthe liability issue by stating that no duty was owed by t he defenda nt to the plaintiff, it seems to me that the

reasonfor the holding in both cases was that the plaintiff shouldhave expected and heeded the danger. I posit that contributory negligence principles actually would require a two-stepinquiry: (1) would the premises owner normally owe a duty to the plaintiff to keep the premises re asonab ly safe, and (2) would the premises owner be relieved of liability because of the affirmative defense of contributory negligence? Inthese cases, inorder to bar recovery onthe basis of the plaintiff’s actions, the Court wouldhave had to conclude either that there was no duty to keep the premises reasonably safe, that the premises were reasonably safe, or that the duty to keep the premises reasonably safe was offset by the plaintiff’s duty to care for his own safety. If the court were t o find tha t no duty existed, there would be no prima fa cie case o f negligence. Were the court to find that the premises were reasonably safe, there would be no breach of the standard of care. If it were the plaintiff’s own failure to protect himself that barred liability despite an unreasonable risk, liability would have been suspended under the contributory negligence doctrine.

12Two later cases seemed to recognize that t here is a difference between the duty owed and the effect of contributory negligence on that duty. In Ackerberg v Muskegon OsteopathicHosp , 366 M ich 59 6; 115 NW2d 290 (1962), the plaintiff sued the d efen dant for injuries sustained when he fell from a platform located outside a hospital entrance. The trial court denied recovery on two grounds. First, it held that the plaintiff failed to show a duty or its breach. Second, it held that the plaintiff failed to exercise reasonable care for his own safety and that the claim was barred because of the plaintiff’s contributory negligence. The language used by the Ackerberg trial court seemed to be in line with Caniff and Garrett . However, this Court reversed, stating that jury questions existed regarding both whether the defendant hospital had a du ty to construct a guardrail and whether the plaintiff was guilty of contributory negligence. Another relevant case is Quinliven , in which the plaintiff slipped and fell on some ice in the defendant’s parking lot. This Court held that the defendant owed a duty to the plaintiff to use reasonable care to protect against the hazards arising from the accumulation of ice and snow. The

case emphasized that business invitors owe invitees a duty to “be re asonably sure that [the invitor] is not inviting [the invitee] in to danger, and to that end, he must exercise ordinary care and prudence to render the premises reasonably 13safe for the visit.” Quinlivenat 251 (quoting Blakely v White Star Line , 154 Mich 635, 637; 118 NW 482 (1908)). Quinlivenoverruled prior case law that said no duty was owed in cases involving the natural accumulation of ice and snow. Yet, the Court also noted that the plaintiff’s actions could be considered in the context of contributory negligence. In my view, Quinlivencorrectly determined the defendant’s duty by referencing the relationship between the parties as well as the danger presented, and then viewed the plaintiff’s negligence as affecting liability rather than alleviating the duty owed. In Placek v Sterling Heights , 405 Mich 638; 275 NW2d 511 (1979), this Court made the move from contributory to comparative negligence. If a plaintif f’s ne gligence is considered in terms of liability rather than in terms of duty, the move would not necessarily have a huge effect on the scheme of analysis applied in premises liability cases, though it would have an effect on the plaintiff’s ability to recover. For example, i f the Caniff case were analyzed under a Quinlavenapproach, the defendant ship o wner could have prevailedon one of two theories: (1) the ship was reasonably safe, and or dinarycare was exercised despite the fact that the hatch was left open, or (2) it was unreasonable to leave the hatch open, but the plaintiff nonetheless would lose because his own failure to exercise due care for his own 14safety contributed to his injury and barred recovery. Under comparative negligence principles, the defendant could still prevail i f the ship was deemed reasonably safe despite the open hatch, but the ship owner would not necessarily prevail inthe second instance. As such, there is a significant difference between an interpretation of the open and obvious doctrine that says, “a defendant owes a duty to invitees to keep his premises reasonably safe, but that duty does not extendto protection against open and obvious dangers,” and to say that, “a defendant owes a duty to keep his premises reasonably safe, but he will not be held liable if the plaintiff fails to heed open and obvious dangers.” It is this distinction that lies at the crux of the present case. D. Post-contributory cases What makes this case particularly difficult is that, in

anattempt to be faithful to prior precedent, some of this Court’s decisions that attemptedto apply the open and obvious danger doctrine in a post-contributory era confused the issue inadvertently. One such opinion, which I authored, is Williams v Cunningham Drug Stores, Inc , 429 Mich 495; 418 NW2d 381 (1988). In Williams , a store customer was injured after fleeing the store directly behind an arme d r obber. The primary focus in Williams was whether a business owner has a duty to his invitees to insure against harm resulting from a third-party cri minal act. However, in a portion of the 15opinionI wrot e that the duty a possessor of land owes his invitees “does not extend to conditions from whic h a n unreasonable risk cannot be anticipated or to dangers so obvious and apparent that an invitee might be expected to discover them himself.” Id . at 500. The statement was supported with a citation to Restatement § 343A. But it would have been more precise to say t hat liability would be suspended in suchcircumstances. A better explanation of the duty issue was presented by the opinion’s discussion of § 343, whichnoted that invitors have a special relationship with invitees and that possessors of land owe a duty to their invitees to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition on the land. A

better approach to the Restatement is the one that I stated in a later opinion: When§§ 343 and 343A are read together, the rule generated is that if the particular act ivity or condition creates a risk of harm only because the inv it ee does not discover the condition or realize its danger, t hen th e open and obvious doctr in e will cut off liability if the invitee shouldhave discovered the condition and realized its danger. Onthe other hand, if the risk of harm remains unreasonable, despite its obviousness or despite knowledge of it by the invitee, then the circumstances may be such that the i nvitor is required to undertake reasonable precautions. The issue then becomes the standard of care and is for the jury to decide. [ Bertrand at 611.]

16Bertrand indicated that Williams sh ould not be read too broadly. Bertrand cited Williams for the proposition that an invitor is no t relieved of the duty to exercise reasonable

care to protect invitees against known or disc ove rable dangerous conditions , even in cases where there would be no duty to warn. Bertrand went on to say that a duty exists by virtue of the relationship between the parties, and then the opinion examined whether the duty had been breached. I continue to believe that Bertrand correctly focusedon liability and on breach. Yet, given the discussions of late, I think Bertrand also may have been less precise in its terminology than it could have been. For example, at one point, I wrote, Under ordinary circumstances, the overriding public policy of encouraging people to take reasonable care for their own safety precludes imposing a duty on the possessor of land to make ordinary steps “foolproof.” Therefore, the risk of harm is not unreasonable. However, where there is something unusual about the steps, because of their “character, location, or surrounding conditions,” then the duty of the possessor of land to exercise reasonable care remains. If th e pr oofs created a questionof fact that the risk of harm was unreasonable , the existence of duty as well as br eachbecome questions for the jury to dec ide . [ Id. at 616-617.] This portion of the opinion directly followed a discussion of

cases decided under contributory negligence, and was an attempt to incorporate the language of some prior cases. A

more correct statement of the law would have been that the

17duty to exercise reasonable care is not breached in cases involving ordinary steps. In that context, it may have been

more evident that Bertrand’s “unusual” characteristics discussionrelated to the foreseeability and unreasonableness of the risk of harm, rather than creating a special new rule. It should also be noted that the differing viewpoints I expressed in Williams and Bertrand are due in part to this Court’s intervening decision in Riddle v McL outh Steel Products . The majority in Riddle held, in pert ine nt part, that a n invitor has no duty to warn invitees of openan d obvious dangers. Justice Levin wrote a dissenting opinion, which I believe to be the more correct approach. In a nutshell, Justice Levin noted that the issue is a standard of care issue, not a duty issue. He also pointed out that the “no-duty” rule actually

came about as one way of expressing that a plaintiff was contributorily negligent. The defendant’s duty should be tied to the relationship between the parties, and that duty would be owed regardless of whether a comparative neg lige nce or contributory negligence system is in place. A finding of comparative negligence would assume that the defendant was in fact negligent, because comparative negligence is used only as

a tool for apportioning damages after a breach of duty on the part of the defendant has been found. The primary questions for th e jury to resolve in premises liability cases are, 18first, whether the defendant has breached his du ty of care, and, second, whether his liability is somehow limited by the plaintiff’s comparative neglig enc e. It is within this framewo rk that the Restatement approach to the open and obvious danger doctrine must be viewed. I agree with Justice Levin’s approach. III. Why the Majority Approach is Wrong Inlight o f th e principles underlying the open and obvious doctrine, I believe that it would be a serious mistake to rephrase the open and obvious rule in yet another imprecise fashion. I further believe that the majority is in error. Insupport of the “special asp ects ” test, the majority offers the following quotation from Bertrand at 614: Withthe axiom being that the dutyis to protect invitees from unreasonable risks of harm, the underlying principle is that even though invitors have a duty to exercise reasonable care in protecting their invitees, they are not absolute insurers of the safety of their invitees. Quinlaven. . . . Consequently, because the danger of tripping and falling ona step is generally open andobvious, the failure to warnt heory cannot establishliability. However, there may be special aspe cts of these particular steps that make the risk of harm unreasonable, and, accordingly, a failure to remedy the dangerous condition may be foundto have breached t he d uty to keep the premises reasonably safe. [Slip op at 5 (emphasis added).] While Bertrand recognized that if a condition has special aspects that render it unreasonably dangerous, the possessor may be subject to liability; the quoted language in no way

19implies that the possessor only has a duty to undertake reasonable precautions to protect his invitees when a condition has special aspects. Bertrand was intended as an application of the Restatement approach to open and obvious dangers. Considered inthe context of the language of the Restatement, it is clear that Bertrand ’s focus was on whether the possessor failed to

exe rcise reasonable care to protect his invitees against an unreasonable risk of harm flowing from a conditio n that the possessor knew about or should have discovered through the exercise of reasonable care, and whether the possessor should have expected that the invitees would not discover or realize the danger or would fail to pr ote ct themselves against it. Secondarily, Bertrand considered whether harm should have been anticipated by the possessor. Inmy view, special aspects of a particular conditionmay be relevant to a determination whether liability should be imposed; however, consideration of special aspects should be made in the context of the Restatement test. For example, if

a condition has special aspects that render it unusual, it is possible that a court could conclude that the possessor should have known that the condition couldpose an unreasonable risk of danger to his invitees. If the court then concludes that the possessor knew about the condition or could have discovered it by the exercise of reasonabl e c are, that the 20possessor should have expected that the invitees would not discover or realize the danger or would fa il to protect themselves against it, and that the possessor fail ed t o exercise reasonable care in protecting his invitees, the court couldhold that the defendant is subject to liability pursuant to § 343. Moreover, the special aspects of a particular conditionon the land might be relevant to a det erm ination whether the possessor should have an tic ipated that the conditionon his land would cause harm to h is in vitees. If so, the liability shield of § 343A could be lifted. In s um, while “special aspects” may be considered in determining whether liability should be suspended, the existence or absence of special aspects in a particular case will n ot necessarily be outcome determinative. Instead, pursuant to the Restatement, courts must focus on whether an unreasonable d anger is presented, whether harm should be anticipated, and whether the duty of care has been breached. IV. An Alternative Approach I believe that the appropriate questions that should be taken up in this case are those posed by the Restatement. I would conclude that the plaintiff has failedto establish that the pothole in the defendant’s parkin g lo t presented an unreasonable risk of harm. Because § 343 of the Restatement provides that a possessor can be liable only when a condition involves an unreasonable risk of ha rm, the plaintiff cannot 21prevail. Likewise, the plaintiff has failedto establish that the defendant should have anticipated that she would be injured by the pothole. Rather, as the majority asserts, the pothole was the type of open and obvious condition that a reasonably prudent person would avoid. Therefore, under § 343A, the defendant is not liable for the physical harm caused by the condition. The plaintiff has failedto establish a material issue of fa ct. T he circumstances of this case reveal that the liability cannot be imposed against the defendant. Therefore, I join the majority’s decision to reverse. K ELLY , J., concurred with C AVANAGH , J.

22S T A T E O F M I C H I G A N SUPREME COURT

ODIS LUGO,

v Plaintiff-Appellee, No. 112575 AMERITECH CORPORATION, INC., Defendant-Appellant.

____________________________________ W EAVER , J. ( concurring ). I concur in the result of Plaintiff pr esen ted no evidence the that majority opinion. the pothole was unreasonably dangerous despite its obviousness. I write separately because the majority unnecessarily introduces—in dicta—a new standard by which open and obvious defects will be deemed unre ason ably dangerous despite their opena nd o bvious presence. Rather than introduce new standards into the open and obvious doctrine, I would remain true to existing precedent. See, e.g., Riddle v McLouth Steel Products Corp , 440 Mich 85, 96; 485 NW2d676 (1992), and Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 500; 418 NW2d 381 (1988). The majority’s new standard focuses on special aspects ofanopen and obvious condition that give rise to the “unreasonab le risk of severe harm.” Slip op at 6 (emphasis added). 1 This standard has no precedent inMichigan’s common law of the open and obvious doctrine. Th is C ourt has not suggested—until today—that the degree of potential harm is relevant to whether the risk of harm posed by a condition remains unreasonable despite its obviousness. Inan apparent effort to provide guidanc e to t he bench andbar, the majority presents unlikely hypothetical examples. Whenlaunching new legal principles from a factual vacuum, it would be more helpful to apply this new severe-harm standard to an actual case that came before this Court, such as Singerman v Municipal Service Bureau, Inc , 455 Mich 135; 565 NW2d 383 (1997). Singermanwas left unresolved by a threethree split. It is indeed unfortunate that the majority fails to take this opportunity to clarify its new standardby

1 The maj ority also offers a new definition of dicta to justifyits adoption of the new severe-harm standard. The majoritystates that “the lack of such special aspects [i.e., the unreasonable risk of severe harm] in the present case forms the basis of our holding that defendant was entitled to a grant of summary disposition in its favor.” Slip op at 9, n 3. This explanation, in my view, acknowledges that the se vere-harmstandard is “dicta.” “Dicta” is defined a s “[o]pinions of a judge which do not embody the resolution or determination of t he s pecific case before the court. Expressions in court’s opinion which go beyond the facts before court and therefore are individual views of author and not binding in subsequent cases as legal precedent.” Black’s LawDictionary, 6 th ed. T he sever e-harm standard is not at issue on the facts of this case, is not brief ed by th e part ies , and is not essential to the determination of this case. 2application to the facts of this recent case. In Singerman , the plaintiff alleging negligence suedthe operator of a public hockey rink. Plaintiff was an experiencedhockey player who joined or was observing a pickup game. Plaintiff went o nto th e ice without protective equipment and, at one point, stood leaning on the goal net. As the scrimmage moved his way, plaintiff was hit in the eye by a puck shot on goal, and he sustained severe damage. Plaintiff testified that he saw the player take the shot, but

was unable to avoid the puck because of po or lighting. The issue presented was whether the defendant should have anticipatedthe harm despite plaintiff’s knowl edge of the hazardous condition. Because severe harm is inherent to hockey, indeed the plaintiff in Singermanlost an eye, it would seem under the majority’s severe-harm standard the question whether the risk of harm caused by the lighting defect was unreasonable despite its obviousness would be for the jury. This, despite the fact that the lighting in the rink was alleged to be consistently inadequate and there was no chance that plaintiff would forget the potentially hazardous condition “because the condition was consta ntly before him.” Singermanat 144 ( W EAVER , J . , opinion). I beli eve that Singermanwas an appropriate case for summary disposition in favor of the defendant because the

3openand obvio us danger of the inadequate lighting was not unreasonably dangerous despite the potential for severe harm. Contrary to the majority’s suggestion that my position wouldallow “no tort claim [to] lie,” slipop at 8 , my positionsimply remains true to well-established articulations of the open and obvious doctrine. These articulations focus

oncircumstances that make a risk unreasonable despite its openness and obviousness, rather than on the na ture of the potential harm. See, e.g., Riddle , supra at 96 (holding that “[w]here the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, an invitor owes no duty to protect or warn the invitee unless he should anticipate the harm despite knowledge of it on behalf of the invitee”); Williams v Cunningham Drug Stor es, Inc, supra at 500 (stating that “[t]he dut y a possessor of land owes his invitees is not absolute . . . . It does not extend to conditions from which an unr easonable risk cannot be anticipated or to dangers so obvious and apparent that an invitee may be expected to discover them himself. Furthermore, ‘the occupier is not an insurer of the

sa fety of invitees, and his duty is only to exercise reasonable care for their protection’”).

4