Riddle v. McLouth Steel Products Corp.

485 N.W.2d 676, 440 Mich. 85

• Court: Michigan Supreme Court
• Decided: June 23, 1992
• Docket: 89273, (Calendar No. 5)
• Status: Published

Opinions

Mallett, J.

We granted leave to consider a premises owner’s duty to warn invitees of known or obvious dangers and to determine (1) whether the trial court correctly instructed the jury that, pursuant to SJI2d 19.03, a premises owner must warn an invitee of known or obvious dangers; and (2) whether the jury instruction on violation of a safety regulation pursuant to SJI2d 12.05 constituted error requiring reversal. We conclude that the jury instructions given do not accurately set out the duty of a premises owner. Accordingly, we reverse the decisions of the lower courts and remand the case for further proceedings consistent with this opinion.

i

Plaintiff Vance Riddle has worked with or around coils of steel for over seventeen years. At the time of his accident, Riddle was employed with W. T. Cartage Manufacturing Company as a truck driver and steel and general freight hauler.

In 1983, Riddle began hauling steel coils from defendant McLouth Steel’s Trenton plant to its Gibraltar plant on a daily basis. Prior to Gibraltar plant delivery, the steel coils are treated to prevent rusting in a process called "pickling.” Under this process, cold rolled steel is unrolled and covered with oil. The steel coils are then rerolled and placed on racks in a coil field¹ where the excess oil is allowed to drain. The treated steel coils are then loaded onto trucks and taken to McLouth’s Gibraltar plant. Here, the steel coils are unloaded and stored on metal rails where they continue to drain until moved for additional processing.

As a consequence of the "pickling” process, oil drips and accumulates on the plant floor creating slippery conditions. There are no signs posted at the Gibraltar plant warning of the slippery conditions. While there are designated walkways around the coil field, there are no signs prohibiting McLouth employees from walking through the coil field. Sometimes the accumulated oil remains on the floor for six to eight weeks.

On January 19, 1984, the date of his injury, Vance Riddle and another truck driver, Charles Pfeiffer, were engaged in loading and unloading treated steel coils at the Gibraltar plant. Riddle was asked by a McLouth employee to deliver a box of computer billing cards to McLouth’s receiving clerk’s office before leaving for the Trenton plant. After unloading their trucks, Riddle and Pfeiffer cut across the coil field to the clerk’s office. Evidence submitted at trial indicated that the path that Riddle and Pfeiffer took through the coil field was the most direct route to the clerk’s office. Although steel coils were being stored in the coil field about thirty feet from their path, both Riddle and Pfeiffer testified that they did not realize the area through which they walked contained oil. Moreover, Riddle and Pfeiffer testified that they had observed a McLouth employee cleaning the area earlier in the day. While crossing the coil field, Riddle suddenly lost his balance and fell backward. His hard hat flew off and he hit his head on one of the metal rails and lost consciousness. Riddle sustained severe injuries, including a cerebral concussion, injury to the left shoulder and elbow, and back strain.²

Vance Riddle brought suit against defendant McLouth Steel to recover lost wages, and his wife, Lucinda Riddle, made claims for loss of consortium. Riddle argued that McLouth breached its duty to exercise reasonable care and that Mc-Louth’s failure to warn of the slippery condition of the coil field was the proximate cause of his injuries. McLouth argued that Riddle had knowledge of the presence of oil in the coil field and therefore McLouth had no duty.

The jury awarded Vance Riddle $4,680,000, and Lucinda Riddle $320,000 for loss of consortium, but reduced the award after it found Vance Riddle thirty percent comparatively negligent. After trial, McLouth filed motions for a directed verdict, for a new trial, or remittitur. The trial court denied all motions. McLouth then filed a motion for reconsideration, which was also denied.

The Court of Appeals found no instructional error and affirmed the decision of the circuit court, 182 Mich App 259; 451 NW2d 590 (1990), and denied McLouth’s motion of rehearing.³

We granted leave by order dated March 27, 1991. 437 Mich 929.

II

It is well settled in Michigan that a premises owner must maintain his or her property in a reasonably safe condition and has a duty to exercise due care to protect invitees from conditions that might result in injury.⁴ Beals v Walker, 416 Mich 469, 480; 331 NW2d 700 (1982); Torma v Montgomery Ward & Co, 336 Mich 468, 476; 58 NW2d 149 (1953).

However, a premises owner’s duty to warn extends to hidden or latent defects. Samuelson v Cleveland Iron Mining Co, 49 Mich 164; 13 NW 499 (1882). The rationale underlying this rule is that liability for injuries resulting from defectively maintained premises should rest upon the one who is in control or possession of the premises and, thus, is best able to prevent the injury. See Nezworski v Mazanec, 301 Mich 43, 56; 2 NW2d 912 (1942); Smith v Peninsular Car Works, 60 Mich 501, 504; 27 NW 662 (1886). This Court has held:

Every man who expressly or by implication invites others to come upon his premises, assumes to all who accept the invitation the duty to warn them of any danger in coming, which he knows of or ought to know of, and of which they are not aware. [Samuelson at 170, Emphasis added.]

Later cases carried this proposition forward. In Caniff v Blanchard Navigation Co, 66 Mich 638; 33 NW 744 (1887), the plaintiff fell through an open hatch on a ship being docked for the winter.⁵ Because the danger was not hidden, this Court denied plaintiff a cause of action:

The occupier of premises, no doubt, is bound, as to persons thereon by his express or implied invitation, to keep the premises free from, or give a warning of, danger known to him and unknown to the visitor. But this rule has no application to a case where a person who from his experience, through many years, in sailing a vessel, knows that it is customary to leave the hatchways of vessels open while lying in port, and whom observation teaches that they are liable to be open rather than closed, and are sources of danger which he must avoid at his peril. [66 Mich 647.]

Similarly, in Nezworski v Mazanec, supra, the plaintiff sued for injuries sustained when she descended a darkened stairway on the defendant’s premises.⁶ This Court expressed the rule simply: "If there were hidden dangers in connection with the doorway, platform, stairway, and alley, it was [the premises owner’s] duty to give warning thereof.” Id. at 61. Thus, if the dangers are known or obvious to the invitee, no absolute duty to warn exists, and the invitee cannot recover on that theory.

This Court adopted the definition provided in 2 Restatement Torts, 2d, § 343 of the general legal duty that a premises owner owes an invitee. In Ackerberg v Muskegon Osteopathic Hosp, 366 Mich 596, 600; 115 NW2d 290 (1962), we held:

"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.”

[7]

The plaintiff in Ackerberg sustained severe head injuries after falling from an unguarded rear platform at the entrance of the defendant’s premises. This Court found that, despite the plaintiff’s contributory negligence, there was a question of fact regarding the defendant’s negligence that was appropriate for jury consideration, and reversed the directed verdict for the defendant.

In Quinlivan v Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244; 235 NW2d 732 (1975), we affirmed Ackerberg. and adopted the revised § 343 and subsections (b) and (c), which further define a premises owner’s duty to invitees. 2 Restatement Torts, 2d, § 343 reads in full:

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 protect them against the danger.

Quinlivan overruled existing case law which held that a premises owner owed no duty to a business invitee regarding obvious hazards arising from natural accumulations of ice and snow. We held that "[a]s such duty pertains to ice and snow accumulations, it will require that reasonable measures be taken . . . .” Quinlivan at 261.⁸

Finally, in Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 500; 418 NW2d 381 (1988), this Court held that a premises owner is not an insurer of the safety of invitees. Moreover, we held that a possessor of land does not owe a duty to protect his invitees where conditions arise from which an unreasonable risk cannot be anticipated or of dangers that are so obvious and apparent that an invitee may be expected to discover them himself. Id. Specifically, we found that, as a matter of law, the duty of reasonable care a merchant owes its invitees does not extend to providing armed, visible security guards to protect customers from the criminal acts of third parties. Id. at 501.

Further, we noted the standard outlined in 2 Restatement Torts, 2d, § 343A, whereby the invitee’s knowledge of dangerous conditions may be properly considered in determining a premises owner’s liability. Williams, supra at 500, n 12. 2 Restatement Torts, 2d, § 343A(1) provides:

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.[9]

Our conclusions in these Michigan cases correctly define the law regarding a premises owner’s duty of care to invitees.

in

The Court of Appeals incorrectly determined that the "no duty to warn of open and obvious danger” rule is inconsistent with comparative negligence and should be abolished. 182 Mich App 266. The adoption of comparative negligence in Michigan does not abrogate the necessity of an initial finding that the premises owner owed a duty to invitees. Moreover, we find that the duty element and the comparative negligence standard are fundamentally exclusive — two doctrines to be utilized at different junctures in the determination of liability in a negligence cause of action.

The threshold issue of the duty of care in negligence actions must be decided by the trial court as a matter of law. Antcliff v State Employees Credit Union, 414 Mich 624; 327 NW2d 814 (1982). In other words, the court determines the circumstances that must exist in order for a defendant’s duty to arise. Smith v Allendale Mut Ins Co, 410 Mich 685, 714-715; 303 NW2d 702 (1981). See, generally, Prosser & Keeton, Torts (5th ed), ch 5. Duty may be established "specifically by mandate of statute, or it may arise generally by operation of law under application of the basic rule of the common law, which imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to unreasonably endanger the person or property of others.” Clark v Dalman, 379 Mich 251, 261; 150 NW2d 755 (1967).

Moreover, the "no duty to warn of open and obvious danger” rule is a defensive doctrine that attacks the duty element that a plaintiff must establish in a prima facie negligence case.¹⁰ A negligence action may only be maintained if a legal duty exists which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm. If the plaintiff is a business invitee, the premises owner has a duty to exercise due care to protect the invitee from dangerous conditions. Beals, supra. However, 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. Williams, supra.

Once a defendant’s legal duty is established, the reasonableness of the defendant’s conduct under that standard is generally a question for the jury. See Smith v Allendale, supra at 714. The jury must decide whether the defendant breached the legal duty owed to the plaintiff, that the defendant’s breach was the proximate cause of the plaintiff’s injuries, and thus, that the defendant is negligent.

If, for example, the dangerous conditions on the premises are hidden or latent, the premises owner is obliged to warn the invitee of the dangers. Defendant’s failure to warn under these circumstances may indicate a breach of the legal duty owed plaintiff. If 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. Quinlivan, supra at 260-261. What constitutes reasonable care under the circumstances must be determined from the facts of the case. While the jury may conclude that the duty to exercise due care requires the premises owner to warn of a dangerous condition, there is no absolute duty to warn invitees of known or obvious dangers.¹¹

Conversely, comparative negligence is an affirmative defense. Michigan adopted this standard to promulgate a "fair system of apportionment of damages.” See Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979). Under this doctrine, a defendant may present evidence of a plaintiff’s negligence in order to reduce liability. Before the adoption of comparative negligence, a plaintiff was wholly precluded from bringing a negligence action against a defendant if the plaintiff was contributorily negligent. Although the adoption of comparative negligence may have limited a defendant’s defenses, the defendant’s initial duty has not been altered.¹²

We find persuasive the analysis of the Illinois Supreme Court in Ward v K mart Corp, 136 Ill 2d 132; 554 NE2d 223 (1990). In Ward, the plaintiff sustained injuries when he walked into a concrete post, while leaving the defendant’s department store. The Illinois Supreme Court reversed the judgment notwithstanding the jury’s verdict for the defendant and found that the defendant’s duty to exercise reasonable care extended to invitees even when the conditions are as obvious as a concrete post in the entryway.

Considering the plaintiff’s negligence in relation to the defendant’s duty, the Ward court held:

We agree with plaintiff that the fact a person’s injury resulted from his encountering a known or open and obvious condition on a defendant’s premises is a proper factor to be considered in assessing the person’s comparative negligence. It is unquestionably relevant to whether the injured party was exercising a reasonable degree of care for his own safety. And in this respect a plaintiff’s own fault in encountering such a condition will not necessarily bar his recovery. As discussed below, however, we find that the obviousness of a condition is also relevant to the existence of a duty on the part of defendant.

Initially we reject plaintiff’s argument that the adoption of comparative negligence in this State has affected the basic duty a landowner or occupier owes to entrants upon his land with respect to such conditions. Some courts and commentators have apparently embraced the position taken by plaintiff in this respect. . . . The primary justification for this approach is the proposition that a consequence of the adoption of comparative negligence is the elimination of those common law devices which act as absolute bars to recovery. We find this argument unpersuasive.

... In the present case, however, we are not so much concerned with the defenses available to defendant, but rather with the existence of a duty on the part of defendant in the first instance. In a common law negligence action, before a plaintiff’s fault can be compared with that of the defendant, it obviously must first be determined that the defendant was negligent. It is fundamental tort law that before a defendant can be found to have been negligent, it must first be determined that the defendant owed a legal duty to the plaintiff. . . . We hold therefore that the adoption of comparative negligence in this State has no effect on the basic duty a defendant owes to a plaintiff. [Id. at 143-145.]

In light of the above discussion, we hold that the "no duty to warn of open and obvious dangers” rule remains viable in Michigan.

IV

On appeal, McLouth argued that the trial court inappropriately instructed the jury pursuant to SJI2d 19.03. The following instruction was given:¹³

It is the duty of a possessor of premises to exercise reasonable care for the protection of an invitee, the status that Mr. Riddle had in this case. The possessor must warn the invitee of dangers of which it knows or has created and must inspect the premises to discover possible dangerous conditions of which it does not know. It must take reasonable precautions to protect the invitee from dangers that are foreseeable. However, a possessor is not an insurer of the safety of an invitee, and his duty is only to exercise reasonable care for the invitee’s protection. The mere existence of a defect or danger is not enough to establish liability unless it is shown to be of such character, or such duration that it would have been discovered by a reasonably careful person. [Emphasis added.][14]

Specifically, McLouth cites the trial court’s statement that "[t]he possessor must warn the invitee of dangers of which it knows or has created . . . McLouth claims that this instruction left the jury with the impression that premises owners have an absolute duty to warn invitees of dangers which are known and obvious. We agree.¹⁵ In light of Michigan’s case law regarding a premises owner’s duty to invitees, the trial judge incorrectly instructed the jury, leaving the impression that a premises owner’s duty to warn an invitee of dangerous conditions on the premises is absolute and ever present. There is no dispute that the trial judge’s charge to the jury must be considered as a whole. Shreve v Leavitt, 51 Mich App 235; 214 NW2d 739 (1974). Moreover, in reviewing jury instructions, this Court must ask "[d]id the instructions as given adequately inform the jury on the applicable law reflecting and reflected by the various evidentiary claims in the particular case?” Huffman v First Baptist Church of Flushing, 355 ; 94 NW2d 869 (1959). We have reviewed the jury instructions in their entirety and find them deficient in setting forth the appropriate duty of premises owners to invitees. Considered as a whole, the other qualifying language in the jury instruction is not sufficient to dispel the premise that this defendant, as a matter of law, should have warned Riddle of the slippery conditions of the coil field.

v

McLouth also claims that the jury instruction pursuant to SJI2d 12.05 constituted error requiring reversal.

The trial court instructed the jury as follows:

The General Industry Safety Standard Commission has adopted certain regulations pursuant to an authority given to it by the State statute. Rule 15 on housekeeping of the General Industry Safety Standard Commission provides that the floor of the work area, passage way, or aisle shall be maintained in a manner that does not create a hazard and that is free of accumulation of scrap, debris, water, oil, or grease and other slip and trip hazards. That regulation also provides that where a wet process is used drainage shall be maintained, or false floors, platforms, or mats used.

If you find that the Defendant violated this regulation before or at the time of the occurrence, such violation is evidence of negligence which you should consider together with all other evidence in deciding whether Plaintiff [sic] was negligent. If you find that the Defendant was negligent, you must then decide whether such negligence was a proximate cause of the injuries to Plaintiff.

McLouth contends that Riddle’s theory of negligence did not include violation of a regulation and thus McLouth was denied the opportunity to rebut an alleged violation at trial. However, the Court of Appeals concluded that the instruction was appropriate, given the circumstances of the case. 182 Mich App 266. We agree. The regulation requires employers to free business premises of dangers that may cause employees, or independent contractors, serious bodily injury. It is undisputed that Riddle was working as an independent contractor on McLouth’s business premises when he sustained injuries. The Court of Appeals resolution of McLouth’s second argument renders further discussion of SJI2d 12.05 unnecessary.

CONCLUSION

The trial judge incorrectly instructed the jury with regard to the duty of a premises owner to invitees. The Court of Appeals mistakenly concluded that the "no duty to warn of open and obvious dangers” has been abolished in Michigan. The decision of the Court of Appeals is reversed, and the case is remanded for a new trial.

Brickley, Boyle, Riley, and Griffin, JJ., concurred with Mallett, J.

1 The coil field is a cement floor on which metal rails have been placed to prevent the steel from rolling.

2 Vance Riddle continues to experience severe personality changes and loss of memory. At trial, medical experts testified that Riddle would have to be institutionalized within five to ten years.

3 On appeal, Judge Mackenzie indicated that she would have reversed on rehearing.

4 An invitee, and in this case a business invitee, is one who enters a premises to conduct business that concerns the premises owner at the owner’s express or implied invitation. See Prosser & Keeton, Torts (5th ed), § 61, pp 419-424.

5 The Court explained why the hatches were open:

It also appears that it is a universal custom when vessels are in port, and especially when laid up for the winter, to ventilate them for the purpose of stopping decay in them, and, in the case of iron vessels, to protect them from rusting. This is done by removing the hatches, to allow the air to circulate through the hold. [66 Mich 641.]

6 The threshold issue in Nezworski was whether plaintiff was an invitee or trespasser. Traditionally, the status of the injured party determines the premises owner’s duty of care. See, generally, Prosser & Keeton, Torts (5th ed), §§ 58-62, pp 393-434.

7 This definition is based on a version of § 343, that has been revised. See 2 Restatement Torts, 2d, § 343, pp 215-216.

8 Both Ackerberg and Quinlivan illustrate the evolution of Michigan’s adoption of 2 Restatement Torts, 2d, § 343. These cases were decided before Michigan’s adoption of the comparative negligence standard. Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979). Moreover, in Quinlivan, we held that the invitee’s knowledge of the premises conditions should be considered in the context of contributory negligence. Quinlivan at 261. Our conclusions in Ackerberg and Quinlivan regarding a premises owner’s duty to invitees are nonetheless appropriate today.

9 Several jurisdictions have adopted 2 Restatement, § 343 or § 343 in conjunction with § 343A. See Kremer v Carr’s Food Center, Inc, 38 Alas 3d 1; 462 P2d 747 (1969); Jarr v Seeco Const Co, 35 Wash App 324; 666 P2d 392 (1983); Markowitz v Arizona Parks Bd, 146 Ariz 352; 706 P2d 364 (1985); Everett v United States, 717 P Supp 917 (D Me, 1989); Burrell v Meads, 569 NE2d 637 (Ind, 1991).

10 The elements of a cause of action in negligence are as follows:

1. That the defendant owed a legal duty to the plaintiff;

2. That the defendant breached or violated the legal duty it owed to the plaintiff;

3. That the plaintiff suffered damages; and

4. That the defendant’s breach of duty was a proximate cause of the damages suffered by the plaintiff.

See Clark v Dalman at 260.

11 Contrary to the dissent’s assertion that "standard of care, not duty, lies at the heart of the present dispute!,]” the following sections of the Restatement clearly speak of the "duty of reasonable care.” We disagree with the dissent’s assertion and believe that the issue in this instance is whether the defendant had a duty to warn the plaintiff of the presence of oil in the coil field.

2 Restatement Torts, 2d, § 343A, comments e and f, pp 219-220, may offer guidance in the determination of the scope of a premises owner’s duty to invitees where known or obvious conditions are present:

e: 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. If he knows the actual conditions, and the activities carried on, and the dangers involved in either, he is free to make an intelligent choice as to whether the advantage to be gained is sufficient to justify him in incurring the risk by entering or remaining on the land. The possessor of the land may reasonably assume that he will protect himself by the exercise of ordinary care, or that he will voluntarily assume the risk of harm if he does not succeed in doing so. Reasonable care on the part of the possessor therefore does not ordinarily require precautions, or even warning, against dangers which are known to the visitor, or so obvious to him that he may be expected to discover them.

f. There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.

12 Judge Sawyer’s discussion of comparative negligence in his dissent in Pressley v Bruce Post VFW Memorial Home, Inc, 185 Mich App 709, 712-713; 462 NW2d 830 (1990) is helpful here. He states:

[C]omparative negligence does not itself directly involve issues of duty or breach of duty. Rather, it deals with the proper and just apportionment of fault, and responsibility, where both the plaintiff and the defendant are negligent. Comparative negligence does not, however, create negligence where none existed before that doctrine was adopted. That is, the adoption of comparative negligence did not create duties where none existed before.

13 We believe an error occurred in the trial transcript. This jury instruction represents the corrected version that closely tracks the language found in SJI2d 19.03. Our decision today is based on this corrected version. The original trial transcript reads as follows:

It is the duty of a possessor of premises to exercise reasonable care for the protection of an invitee, the status that Mr. Riddle had in this case. The possessor must warn the invitee of dangers of which it knows or has created and must inspect the premises to discover possible danger or conditions for which it does not know. It must take reasonable precautions to protect the invitee from dangers that are foreseeable. However, a possessor is not an insurer of the safety of an invitee, and his duty is only to exercise reasonable care for the invitee’s protection. The mere existence of a defect or danger is not enough to establish liability unless it is shown to be such of a character, or such duration that it would have been discovered by a reasonably careful person. [Emphasis added.]

14 This jury instruction is patterned after statements made by Professor Prosser, cited in Kroll v Katz, 374 Mich 364, 373; 132 NW2d 27 (1965), and Wymer v Holmes, 429 Mich 66, 71, n 1; 412 NW2d 213 (1987). Prosser, Torts (2d ed), p 459. To the extent that the premises in Kroll and Wymer contained hidden or latent dangerous conditions, these cases are factually distinguishable from the instant case.

15 On appeal, Riddle argued that McLouth failed to object to the giving of SJI2d 19.03 at trial and, in fact, requested this jury instruction, and that, therefore, its claim of error pertaining to the instruction is not preserved for appellate review.

Our decision to grant leave to appeal in a limited number of cases represents an effort to conserve scarce judicial resources. We are aware that appellate review of an error not properly preserved regarding jury instructions is generally foreclosed. MCR 2.516(C). However, where the defect in the jury instruction pertains "to basic and controlling issues in a case,” this Court may conclude that review of an error to which no objection was raised is appropriate in order to avoid manifest injustice. Hunt v Deming, 375 Mich 581, 585; 134 NW2d 662 (1965). We strongly believe the Court’s intervention here is appropriate to avoid prospective misapplication of duty/standard of care principles. The Court of Appeals articulated an improper conclusion of law, i.e., the abolition of the "no duty to warn of open and obvious dangers” rule in light of Michigan’s adoption of comparative negligence, which demanded clarification by this Court.