While on the ice hockey rink at the Westland Sports Arena, plaintiff Gary Singerman was hit in the eye by a hockey puck and sustained severe damage. The questions presented are whether the possessor of land can be held liable to a business invitee for inadequate lighting despite the open and obvious nature of the danger, and whether the defendants can be held liable when they did not enforce the rules requiring that a helmet be worn, even though a helmet would not have prevented the injury. We would reverse the decision of the Court of Appeals and would reinstate the trial court's orders granting summary disposition in favor of defendants.
On August 1, 1989, plaintiff joined a group of people who were playing pick-up hockey. Joseph Eller had rented the ice rink at Westland Sports Arena for a preseason skatearound. Mr. Eller had invited plaintiff to join in when he met him at an airport the day before. Plaintiff is an experienced hockey player, and had been a member of the coaching staff of Eastern Michigan University Hockey Club the previous season. However, it is unclear from the record whether plaintiff was to be a participant in the game or an observer on the ice. Plaintiff testified that he went to the sports arena as a coach to observe the players who either had been members of the Eastern Michigan University Hockey Club or had aspirations of joining the team.
Plaintiff went onto the ice wearing no protective equipment. Plaintiff testified that he was passing pucks back and forth to the players while warming up. When the other players broke into a full-ice scrimmage, plaintiff was leaning on the goalie net at one end. When the scrimmage moved toward his end, plaintiff attempted to move out of the way, to the side of the goal. Plaintiff testified that he saw a player take the shot that hit him, but that due to poor lighting, he was unable to react as he normally would and avoid the puck that struck him.
Plaintiff filed suit against the City of Westland, Westland Sports Arena, Tamara McKinstry (manager of the sports arena), Cindy Blayle (assistant manager of the sports arena), and Municipal Service Bureau, Inc. (an agency created by the City of Westland to operate the sports arena). All defendants filed motions for summary disposition, which the trial court granted.
This Court granted defendants leave to appeal. 453 Mich. 949 (1996). We now reverse the decision of the Court of Appeals and reinstate the circuit court's orders of summary disposition in favor of defendants.
Appellate review of a motion for summary disposition is de novo. A motion for summary disposition brought under MCR 2.116(C)(8) tests the legal sufficiency of a claim and is tested on the pleadings alone. All factual allegations must be taken as pleaded, as well as any reasonable inferences that may be drawn therefrom. Lepp v. Cheboygan Area Schools, 190 Mich.App. 726, 728, 476 N.W.2d 506 (1991). The motion must be granted if no factual development could justify the plaintiff's claim for relief. A motion brought under MCR 2.116(C)(10) tests the factual support for a claim. In ruling on the motion, the court must consider
Plaintiff's claims in tort are based on his status as a business invitee. "In the ordinary case, an invitee who enters land is entitled to nothing more than knowledge of the conditions and dangers he will encounter if he comes." 2 Restatement Torts, 2d, § 343 A, comment e, p. 219.
In Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 418 N.W.2d 381 (1988), this Court held that owners and occupiers of land are in a special relationship with their invitees. The possessor of land has a duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land. A business invitor or merchant may be held liable for injuries resulting from negligent maintenance of the premises or defects in the physical structure of the building. However, the Court recognized that this duty is not absolute, and that the duty 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. Williams, supra at 499-500, 418 N.W.2d 381.
In Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 96, 485 N.W.2d 676 (1992), this Court again recognized the open and obvious danger exception to a premises owner's duty to exercise due care to protect a business invitee from dangerous conditions
The Court went on to say that "[i]f the conditions are known or obvious to the invitee, the premises owner may nonetheless be required to exercise reasonable care to protect the invitee from the danger." Id. at 97, 485 N.W.2d 676. As an exception to an exception, clearly this rule must remain narrowly drawn and be applied with restraint.
In Bertrand v. Alan Ford, Inc., 449 Mich. 606, 537 N.W.2d 185 (1995), this Court found that the plaintiff could pursue her case against a car dealer for injury caused by a fall from steps in the dealer's service area. Despite the open and obvious nature of the danger normally presented by steps, the Court said that there were special aspects of those particular steps which were sufficiently unique that the risk of harm remained unreasonable.
In the instant case, plaintiff first alleges that there was inadequate lighting in the arena as a result of both insufficient maintenance and improper design. Plaintiff claims that his injury resulted from this inadequate lighting because he was not able to see and avoid the puck.
For the purposes of the motions for summary disposition, it is undisputed that plaintiff was an invitee, that the lack of proper lighting was a hazardous condition, and that the poor lighting was an open and obvious danger which the invitee might reasonably be expected to discover. Thus, the only issue presented is whether the defendants should anticipate the harm despite plaintiff's knowledge of the hazardous condition. Riddle v. McLouth Steel Products, supra.
In this case, the Court of Appeals held that, although the dangerous condition was open and obvious, defendants had a duty to exercise due care where the injury is foreseeable despite the open and obvious nature of the danger.
We disagree with the panel's reasoning in this matter.
In Bertrand, the plaintiff was injured when she fell backward off a step after holding the door open for other customers to pass from the lounge area of the car dealership to the service area. This Court found that there was a genuine issue whether the construction of the step, when considered with the placement of the vending machines and the cashier's window, along with the hinging of the door, created an unreasonable risk of harm, despite the obviousness or the invitee's knowledge of the danger of falling off the step. The Court referred to one of the illustrations accompanying comment f of Restatement of Torts, § 343 A:
Under the general rule there would be no duty because the danger was open and obvious. However, the Court found that there were unusual aspects of the particular steps that made the risk of harm unreasonable. Bertrand, supra at 614, 537 N.W.2d 185.
However, here there was nothing unusual about the inadequate lighting in the hockey rink to cause such a duty to remain. Plaintiff was an adult and an experienced hockey player. The lighting in the rink is alleged to have been consistently inadequate, not subject
Plaintiff also alleges that his injury resulted from defendants' failure to enforce
Thus, plaintiff is not alleging that enforcement of the rules would have caused him to wear a helmet and thereby be protected from the injury. Rather, he alleges that if defendants had removed him from the ice he would not have been in that place at that time.
Had plaintiff's injury been one that could have been prevented by wearing a helmet, we might resolve the question of proximate cause differently.
Because we find that plaintiff cannot recover under either theory of negligence he alleges, the inadequate lighting and the failure to enforce the helmet requirement, we do not address the remaining issues. We would reverse the decision of the Court of Appeals and would reinstate the trial court's orders granting summary disposition in favor of defendants.
BOYLE and RILEY, JJ., concurred with WEAVER, J.
MALLETT, Chief Justice (concurring in part and dissenting in part):
Although I agree with parts I, II, and III(B) of the majority opinion, I respectfully dissent from part III(A). I believe that the "open and obvious" doctrine does not bar the plaintiff's cause of action for defective lighting.
Thus, the fact that a hazard is open and obvious does not absolutely absolve the possessor of land of liability. A possessor of land may still be liable to invitees if he should anticipate that the hazard will cause injury. This Court restated this rule in Bertrand v. Alan Ford, Inc., 449 Mich. 606, 611, 537 N.W.2d 185 (1995):
In this case, the state of the lighting in the Westland Sports Arena would have been obvious to any person in the arena with normal vision. The obviousness of the defect, however, does not end the inquiry. The question then becomes whether the possessors of the Westland Sports Arena should have anticipated that the defective lighting could cause an injury, even though the state of the lighting was obvious.
The Westland Sports Arena is held open to the public, and hockey players who rent the rink should be able to expect that the rink operator will take reasonable steps to make the rink safe. In addition, the possessor of a public ice rink should anticipate that inadequate lighting will cause an injury. Hockey is a fast-paced game that requires quick reflexes. Inadequate lighting will certainly interfere with a player's ability to react to the puck.
Most importantly, the operators of Westland Sports Arena not only should have anticipated that the defective lighting would cause injury, they did anticipate that the lighting would cause injury. In two separate memos, Tamara McKinstry, the arena manager, requested that the lights be fixed for safety reasons. Also, in her deposition testimony, she acknowledges that adequate lighting is necessary to the protection of persons playing hockey.
Plaintiff may be comparatively negligent for going on the ice despite knowledge of the inadequate lighting and for positioning himself near the goal. Under Michigan's system of "true" comparative negligence, however, a plaintiff's negligence alone will not support a defendant's motion for summary disposition. Placek v. Sterling Heights, 405 Mich. 638, 660, 275 N.W.2d 511 (1979). Consequently, the plaintiff's negligence, if any, does not relieve the possessor of the Westland Sports Arena from the general duty of maintaining a safe premises for its invitees.
BRICKLEY and CAVANAGH, JJ., concurred with MALLETT, C.J.
The first issue that we must address concerns whether the trial court properly applied the open and obvious danger doctrine set forth in Riddle, supra, to the facts of this case. We find that the trial court overlooked the possibility that defendants could be held liable for foreseeable harm despite the open and obvious nature of the danger.
The Supreme Court in Riddle discussed two potential theories of liability: failure to warn where a danger is not open and obvious, and failure to exercise due care where injury is foreseeable despite the open and obvious nature of the danger. Id. at 96-97, 485 N.W.2d 676. In the present case, the trial court found that defendants had no duty to warn because of the open and obvious nature of the danger. The court then concluded that defendants had no duty to plaintiff whatsoever. We find that the trial court erred in this conclusion because it overlooked the duty of care where injury is foreseeable despite the open and obvious nature of the danger. Id. [Id. at 680-81.]