A Michigan Court of Appeals panel has again affirmed summary disposition for the defendant homeowner on an injured guest’s premises liability claim on remand from the Michigan Supreme Court despite that court’s decision last year that set a new framework for the open and obvious danger doctrine.

“Kandil-Elsayed  [v. F & E Oil, Inc.] did not alter the limited duty owed to licensees or the types of evidence that might demonstrate breach of that limited duty,” the panel said. “And our holding in Hassen I was not based on the open and obvious doctrine, but on plaintiff’s failure to demonstrate a genuine issue of material fact concerning defendant’s alleged breach of the limited duty owed by defendant to plaintiff.”

The unpublished decision, Hassen v. Hopson (MiLW 08-107750, 6 pages), was issued by Judges Michelle M. Rick, Mark T. Boonstra, Colleen A. O’Brien.

Bloomfield Hills attorney Kelly Kruse of Leonard & Kruse represented the plaintiff and Christian Huffman of Garan Lucow Miller in Detroit represented the defendant. Neither could be reached for comment.

Social visit

Myreka Hassen made a social visit to Anesha Hopson’s home in January 2021. When Hassen left after dark, she fell on the stairs leading from Hopson’s back door, injuring her ankle.

Hassen brought a premises liability complaint, claiming Hopson breached her duty to keep her property safe for visitors, as well as a breach of duty under a theory of ordinary negligence theory, saying building code violations on Hopson’s property were evidence of her negligence.

Hopson moved for summary disposition under MCR 2.116(C)(10). The Kent Circuit Court granted the motion, saying the case sounded only in premises liability and, since Hassen was a licensee, Hopson owed no duty to warn her of dangers that she would know or have reason to know existed.

The trial court also held that the open and obvious danger doctrine would bar the ordinary negligence claim even if it could consider the building code violations that Hassen alleged.

Finally, the trial court rejected Hassen’s argument that the ice on the steps presented any special aspects that would make it effectively unavoidable or otherwise unreasonably dangerous.

First appeal

In 2022, the Court of Appeals affirmed the trial court’s decision in Hassen I, saying Hassen was a licensee and that Hopson had a limited duty to warn of hidden hazards of which she was, or should have been, aware.

Hassen failed to show that Hopson owed her an affirmative duty to inspect the premises and make the steps safer, and that Hopson didn’t breach the limited duty owed. The court declined to reach the issue of whether the “open and obvious” doctrine articulated in Lugo v. Ameritech barred Hassen’s claim.

Thus, since Hassen’s ordinary negligence claim sounded in premises liability, the trial court made no error dismissing it.

In lieu of granting leave to appeal, the Michigan Supreme Court vacated the portion of Hassen I that reviewed Hassen’s premises-liability claim and remanded to the appellate court for reconsideration in light of 2023’s Kandil-Elsayed decision.

Affirmed again

On remand, the appellate panel again affirmed the decision from the Kent County Circuit Court.

“Because the trial court found that defendant would have been entitled to summary disposition even without applying the open and obvious doctrine, and because our holding in Hassen I was not based on the open and obvious doctrine or otherwise affected by Kandil-Elsayed we affirm,” the judges said.

The Michigan Supreme Court said in Kandil-Elsayed that Lugo was wrongly decided and set a new framework for the open and obvious doctrine.

“That said, Kandil-Elsayed did not ‘abolish’ the doctrine,” the panel pointed out. “Instead, it declared that the open and obvious nature of a condition is relevant to the element of breach and, assuming that an otherwise actionable premises liability claim has been established, whether the plaintiff’s damages should be reduced on the basis of comparative fault.”

The now-controlling framework says a land possessor “owes a ‘duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land.’ If the plaintiff establishes that the land possessor owed plaintiff a duty, the next step in the inquiry is whether there was a breach of that duty. … [T]he fact-finder may consider, among other things, whether the condition was open and obvious and whether, despite its open and obvious nature, the land possessor should have anticipated harm to the invitee. If breach is shown, as well as causation and harm, then the jury should consider the plaintiff’s comparative fault and reduce the plaintiff’s damages accordingly. A determination of the plaintiff’s comparative fault may also require consideration of the open and obvious nature of the hazard and the plaintiff’s choice to confront it.”

The appeals court held in Gabrielson v. The Woods Condo Ass’n, Inc. that “the rule of law announced in Kandil-Elsayed should operate retroactively and applies to all cases currently pending on direct appeal.”

Here, the trial court held that the open and obvious doctrine barred Hassen’s claim and that Hopson didn’t violate the limited duty owed to Hassen as a licensee.

“The trial court’s alternative grounds for affirmance comport with the record evidence,” the panel said. “Although plaintiff did dispute whether defendant had applied salt to the stairs, it was undisputed that she saw defendant clearing snow from the stairs when she arrived. Her own deposition testimony indicated that she had navigated the stairs in the dark and was therefore aware of the condition of both the stairs and the lighting before her fall.”

And while Hassen also claimed that Hopson negligently failed to repair a loose handrail, she “only speculates that she might have been able to avoid her injury if she had been able to grab a sturdier handrail after falling; she does not allege that the handrail itself caused her fall or injury.”

The panel affirmed summary disposition for Hopson on the alternative grounds stated by the trial court and the appeals court in Hassen I.