We granted leave to appeal in this case to decide whether a plaintiff who suffers injury after slipping and falling in the parking lot of a bar where plaintiff has become visibly intoxicated may, notwithstanding the exclusivity provision of the dramshop act, MCL 436.1801(10),
On March 6, 1996, during a blizzard, plaintiff entered defendant's bar and consumed nine alcoholic drinks in approximately three hours. After leaving the bar, plaintiff, who was visibly intoxicated and had a blood alcohol content of 0.25 percent,
Over defense objection to an instruction on M Civ JI 19.03, the trial court delivered both the "Duty Of Possessor Of Land, Premises, Or Place Of Business To Invitee" instruction
Defendant appealed, raising the issues of instructional error and error in the calculation of damages. Plaintiff cross-appealed, contending that the trial court erred in denying his motion for additur or
Defendant sought leave to appeal in this Court, arguing that a premises liability cause of action that is alleged to be grounded in the consumption of alcohol is a dramshop action in another guise and, thus, because of the exclusivity provision of the dramshop act, plaintiff should be precluded from pursuing any other cause of action, including a premises liability action.
II. STANDARD OF REVIEW
Statutory interpretation is an issue of law that is reviewed de novo. G.C. Timmis & Co. v. Guardian Alarm Co., 468 Mich. 416, 419, 662 N.W.2d 710 (2003).
Defendant argues that plaintiff's premises liability cause of action is precluded by the exclusivity provision of the dramshop act, MCL 436.1801(10), which provides:
Moreover, because the act also provides that "[t]he alleged visibly intoxicated person shall not have a cause of action pursuant to this section ...," MCL 436.1801(9), defendant argues that plaintiff, as the alleged visibly intoxicated person, has no cause of action at all under the dramshop act.
Plaintiff does not contest that, if his cause of action, in fact, did arise from defendant's unlawful "selling, giving, or furnishing" of alcohol, he would be barred from bringing this cause of action by the dramshop act. However, plaintiff instead asserts that the act does not preclude a premises liability action filed by a visibly intoxicated person against the dramshop that unlawfully served alcohol to that person.
We agree with plaintiff. Here, plaintiff's action arises from injuries he sustained after he slipped and fell in defendant's icy and snow-covered parking lot. That is, plaintiff's action is based on the claim that defendant did not sufficiently protect him as an invitee from a dangerous condition on the premises, specifically defendant's icy and snow-covered parking lot. Accordingly, this is not an action arising from the unlawful "selling, giving, or furnishing" of alcohol. MCL 436.1801(3). Rather, it is an ordinary premises liability action. This is made evident by considering that, had plaintiff not been served any alcohol at all by defendant, but still sustained the same injuries, plaintiff would not be precluded from asserting a premises liability action for such injuries on the basis of his invitee status.
Accordingly, the Court of Appeals erred when it stated:
Rather, defendant's knowledge that plaintiff was intoxicated does not affect the legal duties it owes to plaintiff. That is, although defendant served plaintiff alcohol and was apparently aware that plaintiff was intoxicated, defendant does not owe plaintiff any heightened duty of care. Rather, in determining whether defendant breached its duty, the fact-finder must decide only whether a reasonably prudent person would have slipped and fallen on the ice and snow in defendant's parking lot, or whether that reasonably prudent person should have been warned by defendant of the dangerous condition.
If plaintiff's extent of intoxication were considered in determining defendant's duty of care to plaintiff, such consideration, in our judgment, would circumvent the dramshop act's prohibition against permitting a visibly intoxicated person from collecting monetary damages arising from defendant's unlawful "selling, giving, or furnishing" of alcohol to such plaintiff. MCL 436.1801(9)(10). The dramshop act protects dramshop owners by prohibiting a visibly intoxicated person from recovering damages that have arisen from the dramshop unlawfully "selling, giving, or furnishing" alcohol to such person. In our judgment, the statutory protection would be nullified if dramshop owners, in premises liability actions, were held to a higher duty of care because they unlawfully sold alcohol to a visibly intoxicated person. Accordingly, a dramshop owner, as with any other property owner, has a duty toward the reasonably prudent invitee; he does not, however, have a heightened duty in the case of the visibly intoxicated invitee. Concomitantly, there is no diminished standard of reasonable conduct on the part of a visibly intoxicated invitee in comparison with any other invitee.
Defendant raises one last argument concerning the jury instructions. The "Note on Use" of M Civ JI 19.05 states that "this instruction [pertaining to the obligations of a premises possessor to diminish the hazards arising from the accumulation of ice and snow] should be used where applicable instead of the more general M Civ JI 19.03 [pertaining to the obligations of a premises possessor to warn of open and obvious dangers]...." By virtue of the "instead of" language, defendant argues that § 19.03 and § 19.05 are mutually exclusive and that the trial court erred in giving § 19.03. Defendant argues that § 19.05 applies in a single specific situation — where there is an accumulation of ice and snow — and that in such a situation, the trial court should only have instructed on § 19.05. We disagree. Under Lugo, a premises possessor has a duty to "protect" an invitee from dangers that are either not "open and obvious," or, although "open and obvious," contain "special aspects" that make such dangers "unreasonably dangerous." Lugo, supra at 516-517, 629 N.W.2d 384. Because the duty to "protect," as that term was used in Lugo, is broader and more general than either the duty to "warn," § 19.03, or the duty to "diminish" a hazard caused by ice and snow, § 19.05, we believe that the duty to "protect" encompasses both the duty to "warn" and the duty to "diminish" in these instructions. Accordingly, to the extent that the "Note on Use" of § 19.05 implies that § 19.03 and § 19.05 are mutually exclusive, such an implication is unwarranted under Lugo, and the trial court did not err on this ground in delivering both instructions.
However, we believe that § 19.03 is an inaccurate instruction. Under Lugo,
We further believe that § 19.05 sets forth an inaccurate instruction. Under Lugo, a premises possessor must protect an invitee against an "open and obvious" danger only if such danger contains "special aspects" that make it "unreasonably dangerous." Lugo, supra at 517, 629 N.W.2d 384. Thus, in the context of an accumulation of snow and ice, Lugo means that, when such an accumulation is "open and obvious," a premises possessor must "take reasonable measures within a reasonable period of time after the accumulation of snow and ice to diminish the hazard of injury to [plaintiff]" only if there is some "special aspect" that makes such accumulation "unreasonably dangerous."
We agree in part with the Court of Appeals and hold that the dramshop act does not preclude plaintiff's premises liability cause of action because plaintiff's injuries arose from something other than defendant unlawfully "selling, giving, or furnishing" alcohol to plaintiff.
MAURA D. CORRIGAN, C.J., and CLIFFORD W. TAYLOR and ROBERT P. YOUNG, JR., JJ., concur.
CORRIGAN, C.J. (concurring).
I concur with the majority's reasoning and decision to remand this case for further proceedings. I agree that a premises owner has no duty to protect an invitee from open and obvious dangers on a premises unless "special aspects" render the condition "unreasonably dangerous." Lugo v. Ameritech, 464 Mich. 512, 517, 629 N.W.2d 384 (2001).
I do not consider the more difficult questions whether plaintiff's cause of action is precluded by the dramshop act and whether Manuel v. Weitzman, 386 Mich. 157, 163, 191 N.W.2d 474 (1971) should be overruled because those arguments were never presented in the circuit court. Defendant raised the dramshop act's exclusivity provision
CAVANAGH, J. (concurring in part and dissenting in part).
I agree with the majority that the exclusivity provision of the dramshop act, MCL 436.1801(10), does not preclude plaintiff's premises liability claim. I also agree that, under the unique facts of this case, consideration of plaintiff's intoxication with regard to defendant's duty of care in a premises liability action may circumvent the spirit of the dramshop act. I must, however, concur in the result only.
Unlike the majority, I believe that M Civ JI 19.03 and 19.05 remain accurate instructions under Michigan law. Moreover, I am troubled by the majority using this case as a vehicle to rewrite Michigan premises liability law and to unwisely extend the rationale of Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 629 N.W.2d 384 (2001). Until today, the precise application and scope of the majority's "special aspects" analysis was unclear. See, e.g., Brousseau v. Daykin Electric Corp., 468 Mich. 865, 657 N.W.2d 720 2003) (MARKMAN, J., dissenting). Unfortunately, the majority opinion today ends that debate.
Today's decision is simply the latest installment in the majority's systematic dismantling of the Restatement of Torts approach. The majority effectively states that the Restatement approach is dead because Lugo, and only Lugo, is the law in Michigan. In revising M Civ JI 19.03, the majority signals the death knell to the protections previously afforded the citizens of this state and, as a practical matter, overrules decades of well-reasoned precedent.
I remain committed to the view that the majority's singular approach is wrong and inconsistent with Michigan's premises liability jurisprudence.
I. M Civ JI 19.03
I agree with the majority that a premises possessor is generally not required to protect an invitee from open and obvious dangers. This is the approach advanced by 2 Restatement Torts, 2d, § 343A, an approach which "has been key to Michigan's open and obvious danger law...." Lugo, supra at 528, 629 N.W.2d 384 (CAVANAGH, J., concurring); see also Bertrand v. Alan Ford, Inc., 449 Mich. 606, 609, 537 N.W.2d 185 (1995); Perkoviq v. Delcor Homes-Lake Shore Pointe, Ltd., 466 Mich. 11, 16, 643 N.W.2d 212 (2002). As noted by the Restatement, however, there are exceptions to this general rule, and these exceptions cannot be conveniently summarized by a "special aspects" analysis.
The applicable Restatement sections provide:
Comment f to § 343A is particularly enlightening and states in relevant part:
It is within this context that the proposed revisions to M Civ JI 19.03 must be examined. The instruction provides in pertinent part:
On the bases of the Restatement and Michigan law, I believe M Civ JI 19.03 to be an accurate instruction.
For example, in Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 485 N.W.2d 676 (1992), this Court made it clear that the open and obvious doctrine is not an absolute bar to liability. In Riddle, this Court noted that "where 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."
It becomes obvious that the "special aspects" of a particular condition may be a critical question in determining whether liability should be imposed upon a possessor in open and obvious danger cases. The majority concludes that under its "special aspects" analysis, "the fact-finder must consider the `condition of the premises,' not the condition of the plaintiff." Ante at 578. Although this may be a relevant inquiry, the condition's "special aspects" are by no means dispositive. Additionally, solely focusing on a condition's "special aspects" reads the "unless" clause out of Michigan premises liability law.
Rather, the "special aspects" endeavor must be made within the framework set forth by the Restatement as adopted by this Court. Thus, under Michigan practice, other inquiries are required in making a liability determination and a court's analysis simply does not end with the condition's "special aspects." Stated differently, "The liability of an owner or occupier should not be determined solely by the condition of the premises, natural or artificial, but rather by the occupier's conduct in relation to those conditions — that is, considering all of the circumstances, was due care exercised." Littlejohn, Torts [1974 Annual survey of Michigan law], 21 Wayne L. R. 665, 677-678 (1975). M Civ JI 19.03 recognizes this point of law and, therefore, remains an accurate instruction.
Consider the following hypothetical example, an elaboration of the facts presented in Sidorowicz v. Chicken Shack, Inc., 469 Mich. 912, 673 N.W.2d 106 (2003). During remodeling, a particular restaurant has a six-foot hole in its floor. The restaurant owner decides it would be beneficial to remain open during remodeling. The owner conspicuously places large signs at the entrance and throughout the restaurant indicating the presence of the hole. The owner further places a giant red flag in the center of the hole. Patrons can easily avoid the hole by traveling down one of two alternate aisles. A blind person enters the restaurant to grab a bite to eat. The owner knows that the invitee is blind. The invitee is wearing sunglasses, carries a white cane, has a sign around his neck that reads, "I am blind," and even orally states to the owner, "I am blind and cannot see."
The hole is properly considered a dangerous condition on the land. Further, the condition would arguably be considered open and obvious to a reasonably prudent person.
In its assessment of the above hypothetical example, the majority states, "By imposing an obligation upon a homeowner or other premises possessor, not merely to make his or her premises reasonably safe under ordinary circumstances, but also under every conceivable circumstance, Justice CAVANAGH in his concurrence/dissent, ... would impose a substantially increased legal burden upon such persons." Ante at 577 n. 10 (emphasis added). I am troubled by this assertion because, unlike the majority, I do not believe that a blind person entering a restaurant is an extraordinary or uncommon event. Moreover, I question the wisdom of any rule of law that only applies under so-called "ordinary" or idyllic circumstances. The Restatement approach seeks to protect those who cannot protect themselves, including the more than forty-three million Americans with disabilities. Apparently, the majority's oversimplified Lugo approach takes a different view.
In sum, I am troubled by the majority's overreliance on Lugo's "special aspects" analysis. By focusing solely on this analysis, the majority repudiates the Restatement approach and, at the very least, unwisely eliminates the "unless" clause from Michigan jurisprudence.
II. M Civ JI 19.05
I share in the concerns expressed by Justice Weaver and likewise disagree with the majority's decision to revise M Civ JI 19.05 to solely reflect its Lugo standard. In Quinlivan v. The Great Atlantic & Pacific Tea Co., Inc., 395 Mich. 244, 261, 235 N.W.2d 732 (1975), this Court stated, "While the invitor is not an absolute insurer of the safety of the invitee, the invitor has a duty to exercise reasonable care to diminish the hazards of ice and snow accumulation." Such a duty requires "that reasonable measures be taken within a reasonable time after an accumulation...." Id. M Civ JI 19.05 accurately reflects the rule announced in Quinlivan and followed in this state for nearly thirty years.
In qualifying M Civ JI 19.05 with its Lugo standard, the majority has added uncertainty to Michigan premises liability law. In response to the dissent, the majority claims that Quinlivan"must be understood in light of this Court's subsequent decisions in Bertrand and Lugo." Ante at 579 n. 13. However, neither Bertrand nor Lugo involved the accumulation of ice and snow. Further, today's opinion,
Additionally, even if the majority opinion is read narrowly, i.e., that the Lugo qualification only applies where it is first determined that the accumulation is open and obvious, today's approach significantly alters the duty traditionally imposed upon possessors of land. Nothing in Quinlivan suggests that an invitor must diminish the hazards of ice and snow only if the accumulation involves "special aspects" or is "unreasonably dangerous." I share in the concerns set forth by Justice Weaver regarding this line of reasoning. Because M Civ JI 19.05 accurately reflects Quinlivan and Quinlivan remains the law, I must respectfully disagree with the majority's decision to revise this instruction in light of Lugo.
MARILYN J. KELLY, J., agrees.
WEAVER, J. (concurring in part and dissenting in part).
I concur in the result only with the majority's decision to vacate the jury verdict for plaintiff.
I agree that, under the specific facts of this case, the licensee's knowledge of plaintiff's intoxication is irrelevant with regard to whether the bar breached its common-law duty of care to plaintiff. However, I dissent from the majority's extension of the "special aspect test" from Lugo v. Ameritech Corp. Inc., 464 Mich. 512, 629 N.W.2d 384 (2001), to cases such as this one involving the natural accumulation of snow and ice.
Without explanation, the majority changes the law regarding the duty of premises possessors to invitees with respect to accumulations of snow and ice. Almost thirty years ago, this Court in Quinlivan v. The Great Atlantic & Pacific Tea Co., Inc., 395 Mich. 244, 260-261, 235 N.W.2d 732 (1975), recognized that although snow and ice accumulations are obvious, the "rigorous duty" owed by invitors to protect invitees from unreasonable harm justified the imposition of a uniform duty on invitors regarding accumulations of snow and ice. Quinlivan, therefore, held that premises possessors owed a duty to invitees to take "reasonable measures ... within a reasonable time after an accumulation of ice and snow to diminish the hazard of injury to the invitee." Id.
However, in this case the majority holds:
While Quinlivan clarified a premises possessor's duty regarding all snow and ice accumulations, the majority confuses this area of premises liability law by holding that some kinds snow and ice are more dangerous than others. Now, in cases involving snow and ice, it must first be established that the accumulation was open and obvious. Most such accumulations will, by the very nature of an accumulation, be open and obvious.
In Michigan, where accumulations of snow and ice abound, every citizen's duty with respect to all accumulations of snow and ice should be unambiguous. Changes by this Court regarding that duty should be well-reasoned and obvious. Lugo did not involve an accumulation of snow and ice.
Therefore, I dissent from the majority extending the Lugo "special aspects" test to accumulations of snow and ice. I concur only in the decision of the majority in vacating the jury verdict for plaintiff because, under the facts of this case, the licensee's knowledge of plaintiff's intoxication is irrelevant to whether the bar
"(1) Does the claim against `the tavern owner' arise out of an unlawful sale, giving away, or furnishing of intoxicants? If so, the dramshop act is the exclusive remedy.
"(2) If the claim arises out of conduct other than selling, giving away, or furnishing of intoxicants, does the common law recognize a cause of action for the negligent conduct? If so, then the dramshop act neither abrogates nor controls the common-law action. If not, there is no independent common-law claim."
Further, we are perplexed how Justice WEAVER, in light of her concurring opinion in Lugo, supra at 544, 629 N.W.2d 384, in which she asserted that only the open and obvious standard should apply in determining whether a homeowner or other premises possessor is liable to an invitee for a dangerous condition on his premises, would now disavow the majority's supposed application of Lugo to Quinlivan on the grounds that not only are "snow and ice accumulations... obvious," but "the `rigorous duty' owed by invitors to protect invitees from unreasonable harm justifie[s] the imposition of a uniform duty on invitors regarding accumulations of snow and ice." Post at 581. Consistent with her opinion in Lugo, we are hard-pressed to understand how Justice WEAVER could now conclude that a homeowner or other premises possessor has a duty of care to diminish a hazard caused by the accumulation of ice and snow, even if such hazard is open and obvious. In other words, Justice WEAVER criticizes the majority in Lugo for failing to accord the "openness and obviousness" of a hazard exclusive consideration, while in the instant case, she criticizes the majority for according the "openness and obviousness" of a hazard excessive consideration. Her positions in these two cases are wholly incompatible.