____________________________________________________________________________________________ 

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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 Opinion Robert P. Young, Jr. 

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 liability 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 plaintiff’s claim was barred by the “open and obvious
 
danger” 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 special 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 parking lot toward
 

defendant’s building 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 concentrating 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 protect plaintiff.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 the lady was walking along without


paying proper attention to the circumstances where


she was walking, and there is a legal duty to look
 

1The motion for summary disposition was 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.
 

2
 
where you are walking. I can’t be anymore precise


than that.
 

The Court of Appeals reversed the grant of summary
 

disposition in a two-to-one decision. The Court of Appeals
 

majority concluded that the circuit court erred in holding
 

that plaintiff’s legal duty to look where she was walking
 

barred her claim. The Court stated that, under principles of
 

comparative negligence, a plaintiff’s negligence can only
 

reduce the amount of recovery, not eliminate altogether 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
 

should have 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 with 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
 

and obvious doctrine in premises liability cases. In general,
 

a premises possessor owes a duty to an invitee to exercise
 

reasonable care to protect the invitee from an unreasonable
 

risk of harm caused by a dangerous condition on the land.
 

Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185
 

3
 
(1995). However, this duty does not generally encompass
 

removal of open and obvious dangers:
 

[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. [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 §§ 343 and 343A [of the Restatement


Torts, 2d] are read together, the rule generated is


that if the particular activity or condition
 

creates a risk of harm only because the invitee
 

does not discover the condition or realize its
 

danger, then the open and obvious doctrine will cut


off liability if the invitee should have discovered


the condition and realized its danger. On the
 

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 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 protect
 

invitees from that risk.
 

4
 
The following language from Bertrand provides a more
 

concrete discussion of these abstract concepts:
 

With the 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 & Pacific Tea 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, there may be special aspects


of these particular steps that make the risk of


harm unreasonable, and, accordingly, a failure to


remedy the dangerous condition may be found to have


breached the duty to keep the premises reasonably


safe. [Bertrand, supra at 614.]
 

Consistent with Bertrand, we conclude that, with regard to
 

open and obvious dangers, the critical question is whether
 

there is evidence that creates a genuine issue of material
 

fact regarding 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 should prevail in imposing liability upon the
 

defendant or the openness and obviousness of the condition
 

should prevail in barring liability.
 

An illustration 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.
 

5
 
While the condition is open and obvious, a customer wishing to
 

exit the store must leave 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 aspects that
 

impose an unreasonably high risk of severe harm. To use
 

another example, consider an unguarded 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 death or severe injury to one who fell in
 

the pit that it would be unreasonably dangerous to maintain
 

the condition, at least absent reasonable warnings or other
 

remedial measures being taken.2 In sum, only those special
 

2
 In considering whether a condition presents such a


uniquely dangerous potential for severe harm as to constitute


a “special aspect” and to avoid barring liability 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 retrospective


fashion that merely because a particular plaintiff, in fact,


suffered harm or even severe harm, that the condition at issue


in a 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 in unforeseeable conduct,


that are immaterial to whether an open and obvious danger is


nevertheless unreasonably dangerous. Thus, contrary to the


possible implication of Justice Weaver’s concurrence, this


opinion does not allow the imposition of liability merely


(continued...)
 

6
 
 

2(...continued)


because a particular open and obvious condition has some


potential for severe harm. Obviously, the mere ability to


imagine that a condition 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


an invitee 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 caused by 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 action where no reasonable


person could conclude that the open and obvious condition at


issue involved special 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


mean no matter what the open and obvious peril, even a thirtyfoot-deep unguarded or unmarked pothole, if it was open and


obvious, 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 circumstances, be the key factor that makes such a


condition unreasonably 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...)
 

7
 
aspects 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
 

However, typical open and obvious dangers (such as
 

ordinary potholes in a parking lot) do not give rise to these
 

special aspects.4 Using a common pothole as an example, the
 

condition is 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 expected that 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 material


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 the scope of the open


and obvious 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 that 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.
 

8
 
severe injury.
 

III
 

Applying these general principles to the case at hand, we
 

conclude that defendant was entitled to summary disposition
 

under MCR 2.116(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
 

(in this case plaintiff) is required by MCR 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 plaintiff’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 barred by the open and obvious danger
 

doctrine. This case simply involved a common pothole in a
 

parking lot. While plaintiff argues that the pothole was
 

filled with debris, the evidence presented to the trial court
 

simply does not allow a reasonable inference that the pothole
 

was obscured by debris at the time of plaintiff’s fall.
 

9
 
Indeed, 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
 

consolidated cases decided by this Court in Bertrand. In
 

Maurer, the plaintiff slipped and fell on an “unmarked cement
 

step” as she was leaving a rest room area at a park. The
 

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 tripping 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 held that the defendant in Maurer was
 

entitled to summary disposition on the basis of the open and
 

obvious danger doctrine because the plaintiff had shown
 

nothing unusual about the step:
 

The plaintiff’s only asserted basis for
 

finding that the step was dangerous was that she


did not see it. We hold that the plaintiff has


failed to 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).]
 

10
 
In sum, the plaintiff in Maurer could not avoid summary
 

disposition because the evidence showed only that she tripped
 

and fell on a common step that she failed to notice.5
 

Likewise, the evidence in the present case reflects that
 

plaintiff tripped and fell on a common pothole because she
 

failed to notice it. While plaintiff argues that moving
 

vehicles in the parking lot were a distraction, there is
 

certainly nothing “unusual” about vehicles being driven in a
 

parking lot, and, accordingly, this is not a factor that
 

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 care 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 steps


“foolproof.” Therefore, the risk of harm is not


unreasonable. [Id. at 616-617.]
 

Likewise, potholes in pavement are an “everyday 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 did not 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


possessor is unreasonably dangerous. Rather, the important


point is that the plaintiff in Maurer offered nothing to


distinguish the steps at issue from ordinary steps in terms of


the danger that they presented.
 

11
 
person. Accordingly, in light of plaintiff’s failure to show
 

special aspects of the pothole at issue, it 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 in favor of defendant
 

because the plaintiff “was walking along without paying proper
 

attention 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 situation where a
 

plaintiff was injured as a result of a risk that was truly
 

outside the open and obvious doctrine and that posed an
 

unreasonable risk of harm, the fact that the plaintiff was
 

also negligent would not bar a cause of action. 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 regard to the
 

plaintiff’s injury, this reduces the amount of damages the
 

plaintiff may recover but does not preclude recovery
 

altogether. See, e.g., Riddle, supra at 98 (under comparative
 

12
 
negligence, “a defendant may present evidence of a plaintiff’s
 

negligence in order to reduce liability”).
 

Accordingly, it is important for courts in deciding
 

summary disposition motions by premises possessors in “open
 

and obvious” cases to focus on the objective nature of the
 

condition of the premises at issue, not on the subjective
 

degree 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 Justice 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
 

against the danger. We further agree that any comparative
 

negligence by an invitee is irrelevant to whether a premises
 

possessor has breached its duty to that invitee in connection
 

with an open and obvious danger because an invitee’s
 

comparative negligence can only serve to reduce, not
 

13
 
eliminate, 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
 

condition involves special 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
 

in evaluating motions for summary disposition in this context.
 

In our view, this approach is consistent with § 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 “anticipate the harm.” Post at 5.
 

Simply put, there must be something out of the ordinary, in
 

other words, special, about a particular open and obvious
 

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 the likelihood 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 Cavanagh states that “[a] more correct
 

statement of the law [in Bertrand, supra] would have been to


(continued...)
 

14
 
Justice 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. Nevertheless, we 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 and obvious
 

conditions posed an unreasonable risk of harm better than
 

would be 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 safety 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 involving 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.
 

15
 
defendant 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
 

opinion attempts to provide a further explanation of the scope
 

of that duty.
 

For the above reasons, we reverse the judgment of the
 

Court of Appeals and reinstate the judgment of the circuit
 

court.
 

CORRIGAN, C.J., and YOUNG and MARKMAN, JJ., concurred with
 

TAYLOR, J.
 

16
 
S 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
 

obvious, and (2) there is no justification for imposing
 

liability on the defendant despite the open and obvious nature
 

of the danger presented by the pothole because the plaintiff
 

failed to provide evidence that the pothole had “special
 

aspects.”
 
I join the majority’s decision to reverse the Court of
 

Appeals and reinstate the judgment of the circuit court
 

because I agree that the plaintiff failed to establish a basis
 

for imposing liability despite the open and obvious nature of
 

the pothole. I also join the majority’s statement that the
 

trial court 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 special aspects of a
 

condition:
 

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 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
 

2
 
whether “special aspects” of a condition make the risk of harm
 

unreasonably dangerous. Instead, the Court must make two
 

inquiries: (1) whether the possessor may be held liable
 

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 imposed, a thorough
 

consideration of the historical underpinnings of the open and
 

obvious danger doctrine is in order. I offer such an analysis
 

in this 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 premises liability cases
 

involving open and obvious 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 open 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
 

sprained ankle sustained after stepping on a cinder in the
 

defendant's parking lot.1 Since that time, the Restatement
 

1
 At the time, 2 Restatement Torts, Negligence, under


title of business visitors, § 343, set forth the following


standard of care:
 

(continued...)
 

3
 
has been cited repeatedly, even after its text was changed.
 

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 current 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 reasonable
 

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)


A possessor of land is subject to liability


for bodily harm caused to business visitors by a


natural or artificial condition thereon if, but


only if, 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.
 

4
 
protect them against the danger.
 

§ 343A. KNOWN OR OBVIOUS DANGERS
 

(1) A possessor of land is not liable to his


invitees for physical harm caused to them by any


activity or condition on the land whose danger is


known or obvious to them, unless the possessor


should anticipate the harm despite such knowledge


or obviousness.
 

(2) In determining whether the possessor


should 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 providing 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 If 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
 

an unreasonable risk of harm to an invitee, and (2) he should
 

realize that an invitee will either 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. 


3
 As will be explained, however, the Court has not


provided a uniform interpretation of the Restatement, and


there has been some debate about whether the Restatement
 

discusses duty or standard of care.
 

5
 
More instructive is the text of comment (a) to § 343,
 

which provides that “This section should be read together with
 

§ 343A, which deals with the effect of the fact that the
 

condition is known to the invitee, or is obvious to him . . .
 

. In the interest of brevity the limitation is not repeated
 

in this section.” Comment (a) is helpful in two ways: it
 

illustrates that hidden or unknown conditions can be
 

distinguished from 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
 

exception to § 343. The general rule provided by § 343A is
 

that a possessor of land is not liable to his invitees for
 

injuries caused by activities or conditions on the land whose
 

danger is known or obvious. The second clause of subsection
 

(1) of § 343A provides the exception to this rule: if the
 

possessor of land should anticipate the harm to the invitee
 

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. 


6
 
 

B. Where does the Restatement come into play?
 

The second imperative point to understand about
 

Restatement §§ 343 and 343A is that they refer to the
 

imposition of 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 standard of care
 

which we 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 cases, or “is not
 

liable” in § 343A cases. 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 themselves against.”
 

Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 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 he should
 

have anticipated that harm would result from the known or
 

obvious danger despite the condition’s obviousness or the
 

invitee’s knowledge of the danger. When the invitor breaches
 

his duty of care in this manner, he can be subject to
 

liability for physical 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
 

possessor should anticipate harm flowing from the condition
 

despite the invitee’s knowledge of the condition or the
 

obviousness of the condition.
 

8
 
C. How the cases confuse the issue, and what contributory


negligence has to do with it
 

Unfortunately, the Restatement approach can be somewhat
 

difficult to apply because it bears some similarity to the
 

contributory 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 confusion stems from the fact that, in
 

both contributory negligence and in open and obvious 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
 

though he owes a duty to the plaintiff. Despite that
 

similarity, though, there is a distinct difference between the
 

open and 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 defensive mechanism, is based on
 

the policy that damages are not recoverable where the
 

plaintiff and the defendant are both partially at fault. The
 

open and 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,
 

9
 
the reason for the absolution is not that the plaintiff acted
 

negligently. Instead, the reason is that the open and obvious
 

danger of the condition is a “circumstance” under the standard
 

of care. The possessor will be deemed to have acted
 

reasonably under those circumstances. 


The idea that defendants should prevail where the
 

plaintiff fails to heed an open and obvious danger has been
 

around for a while, but, unfortunately, the focus on the
 

standard of care has been lost 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
 

pointed out in dissent in Riddle v McLouth Steel Products, 440
 

Mich 85; 485 NW2d 676 (1992), these contributory negligence
 

cases sometimes expressed their holdings 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
 

10
 
ships and who knew that hatchways were often left open while
 

the ship was at port and, therefore, had reason to expect that
 

the hatchway he fell into would have been left open, (2) that
 

the plaintiff failed to exercise 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,
 

reduced to 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 Court 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 character, 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 denied recovery,
 

stating that the defendant was not guilty of negligence
 

because it owed no duty to “prevent careless persons from
 

11
 
hurting themselves.” Id. at 264.
 

Although these two early cases cited by the parties
 

addressed the liability issue by stating that no duty was owed
 

by the defendant to the plaintiff, it seems to me that the
 

reason for the holding in both cases was that the plaintiff
 

should have expected and heeded the danger. I posit that
 

contributory negligence principles actually would require a
 

two-step inquiry: (1) would the premises owner normally owe a
 

duty to the plaintiff to keep the premises reasonably safe,
 

and (2) would the premises owner be relieved of liability
 

because of the affirmative defense of contributory negligence?
 

In these cases, in order to bar recovery on the basis of
 

the plaintiff’s actions, the Court would have 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 to find that no duty existed, there would be no prima
 

facie case of 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. 


12
 
Two later cases seemed to recognize that there is a
 

difference between the duty owed and the effect of
 

contributory negligence on that duty. In Ackerberg v Muskegon
 

Osteopathic Hosp, 366 Mich 596; 115 NW2d 290 (1962), the
 

plaintiff sued the defendant 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 duty 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 reasonably sure that [the invitor] is not inviting [the
 

invitee] into danger, and to that end, he must exercise
 

ordinary care and prudence to render the premises reasonably
 

13
 
safe for the visit.” Quinliven at 251 (quoting Blakely v
 

White Star Line, 154 Mich 635, 637; 118 NW 482 (1908)).
 

Quinliven overruled 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, Quinliven correctly 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 plaintiff’s negligence 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, if the Caniff case were analyzed under a
 

Quinlaven approach, the defendant ship owner could have
 

prevailed on one of two theories: (1) the ship was reasonably
 

safe, and ordinary care 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
 

14
 
safety contributed to his injury and barred recovery. Under
 

comparative negligence principles, the defendant could still
 

prevail if the ship was deemed reasonably safe despite the
 

open hatch, but the ship owner would not necessarily prevail
 

in the 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
 

extend to 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
 

an attempt to be faithful to prior precedent, some of this
 

Court’s decisions that attempted to 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 armed robber. 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 criminal act. However, in a portion of the
 

15
 
opinion I wrote that the duty a possessor of land owes his
 

invitees “does not extend to conditions from which an
 

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 that liability would be
 

suspended in such circumstances. A better explanation of the
 

duty issue was presented by the opinion’s discussion of § 343,
 

which noted 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 activity


or condition creates a risk of harm only because
 

the invitee does not discover the condition or
 

realize its danger, then the open and obvious


doctrine will cut off liability if the invitee


should have discovered the condition and realized
 

its danger. On the 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 invitor is


required to undertake reasonable precautions. The
 

issue then becomes the standard of care and is for
 

the jury to decide. [Bertrand at 611.]
 

16
 
 

Bertrand indicated that Williams should not be read too
 

broadly. Bertrand cited Williams for the proposition that an
 

invitor is not relieved of the duty to exercise reasonable
 

care to protect invitees against known or discoverable
 

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 focused on
 

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 the proofs created a
 

question of fact that the risk of harm was
 

unreasonable, the existence of duty as well as


breach become questions for the jury to decide.


[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
 

17
 
duty 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
 

discussion related 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 McLouth Steel
 

Products. The majority in Riddle held, in pertinent part,
 

that an invitor has no duty to warn invitees of open and
 

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 negligence 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 the jury to resolve in premises liability cases are,
 

18
 
first, whether the defendant has breached his duty of care,
 

and, second, whether his liability is somehow limited by the
 

plaintiff’s comparative negligence. It is within this
 

framework 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
 

In light of the 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.
 

In support of the “special aspects” test, the majority
 

offers the following quotation from Bertrand at 614:
 

With the 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.
 

Quinlaven . . . . 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, there may be special
 

aspects of these particular steps that make the


risk of harm unreasonable, and, accordingly, a


failure to remedy the dangerous condition may be


found to have breached the duty 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
 

19
 
implies 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
 

in the context of the language of the Restatement, it is clear
 

that Bertrand’s focus was on whether the possessor failed to
 

exercise reasonable care to protect his invitees against an
 

unreasonable risk of harm flowing from a condition 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 protect themselves against it.
 

Secondarily, Bertrand considered whether harm should have been
 

anticipated by the possessor.
 

In my view, special aspects of a particular condition may
 

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 could pose 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 reasonable care, that the
 

20
 
possessor should have expected that the invitees would not
 

discover or realize the danger or would fail to protect
 

themselves against it, and that the possessor failed to
 

exercise reasonable care in protecting his invitees, the court
 

could hold that the defendant is subject to liability pursuant
 

to § 343. Moreover, the special aspects of a particular
 

condition on the land might be relevant to a determination
 

whether the possessor should have anticipated that the
 

condition on his land would cause harm to his invitees. If
 

so, the liability shield of § 343A could be lifted.
 

In sum, 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 not necessarily be outcome determinative. Instead,
 

pursuant to the Restatement, courts must focus on whether an
 

unreasonable danger 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 failed to establish that
 

the pothole in the defendant’s parking lot 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 harm, the plaintiff cannot
 

21
 
prevail. Likewise, the plaintiff has failed to 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 failed to establish a material issue of
 

fact. The circumstances of this case reveal that the
 

liability cannot be imposed against the defendant. Therefore,
 

I join the majority’s decision to reverse.
 

KELLY, J., concurred with CAVANAGH, J.
 

22
 
S 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. 

____________________________________ 

WEAVER, J. (concurring). 

I concur in the result of 

Plaintiff presented 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 unreasonably dangerous despite their
 

open and obvious 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 NW2d 676 (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 of
 
 

an open and obvious condition that give rise to the
 

“unreasonable risk of severe harm.” Slip op at 6 (emphasis
 

added).1 This standard has no precedent in Michigan’s common
 

law of the open and obvious doctrine. This Court 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. 


In an apparent effort to provide guidance to the bench
 

and bar, the majority presents unlikely hypothetical examples.
 

When launching 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). Singerman was left unresolved by a threethree split. It is indeed unfortunate that the majority fails
 

to take this opportunity to clarify its new standard by
 

1The majority also offers a new definition of dicta to


justify its adoption of the new severe-harm standard. The
 

majority states 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


severe-harm standard is “dicta.” “Dicta” is defined as
 

“[o]pinions of a judge which do not embody the resolution or


determination of the specific 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
 

Law Dictionary, 6th ed. The severe-harm standard is not at
 

issue on the facts of this case, is not briefed by the


parties, and is not essential to the determination of this


case.
 

2
 
 

application to the facts of this recent case. 


In Singerman, the plaintiff alleging negligence sued the
 

operator of a public hockey rink. Plaintiff was an
 

experienced hockey player who joined or was observing a pickup game. Plaintiff went onto the 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 poor lighting. The
 

issue presented was whether the defendant should have
 

anticipated the harm despite plaintiff’s knowledge of the
 

hazardous condition. 


Because severe harm is inherent to hockey, indeed the
 

plaintiff in Singerman lost 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
 

constantly before him.” Singerman at 144 (WEAVER, J.,
 

opinion). I believe that Singerman was an appropriate case
 

for summary disposition in favor of the defendant because the
 

3
 
open and obvious danger of the inadequate lighting was not
 

unreasonably dangerous despite the potential for severe harm.


 Contrary to the majority’s suggestion that my position
 

would allow “no tort claim [to] lie,” slip op at 8, my
 

position simply remains true to well-established articulations
 

of the open and obvious doctrine. These articulations focus
 

on circumstances that make a risk unreasonable despite its
 

openness and obviousness, rather than on the nature 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
 

Stores, Inc, supra at 500 (stating that “[t]he duty a
 

possessor of land owes his invitees is not absolute . . . .
 

It does not extend to conditions from which an unreasonable
 

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
 

safety of invitees, and his duty is only to exercise
 

reasonable care for their protection’”).
 

4