Pressley v. Bruce Post Vfw Memorial Home, Inc

185 Mich. App. 709 (1990) 462 N.W.2d 830 PRESSLEY v. BRUCE POST VFW MEMORIAL HOME, INC Docket No. 108449. Michigan Court of Appeals. Decided October 15, 1990. Mancini, Schreuder, Kline & Conrad, P.C. (by Ellen G. Schreuder), for plaintiff. Franklin, Bigler, Berry & Johnston, P.C. (by Steven C. Berry), for defendants. Before: SHEPHERD, P.J., and SAWYER and McDONALD, JJ. SHEPHERD, P.J. Defendants appeal from a judgment of the circuit court entered in favor of plaintiff following a jury trial in the amount of $5,000 on a premises liability claim. The jury had awarded $10,000 in damages but reduced it after it found plaintiff fifty percent negligent. We affirm. Plaintiff was injured when he fell from a seawall maintained by defendants. Plaintiff apparently tripped on a metal spike protruding from the seawall. Plaintiff had used the seawall for fishing over a period of time with the knowledge and approval of defendants. The danger in this case, the exposed metal spike, was open and obvious. This was established by plaintiff's admission that he was aware of the spike's existence. He had, in fact, previously tried without success to remove it. We believe that this case is controlled by Riddle v McLouth Steel Products Corp, 182 Mich App 259; 451 NW2d 590 (1990). In Riddle this Court reasoned that, if the encounter with a known or obvious danger has the effect of excusing the landowner's duty, we would be back to the doctrine of *711 contributory negligence as an absolute bar to recovery. We agree with Riddle. Affirmed. McDONALD, J., concurred. SAWYER, J. (dissenting). I respectfully dissent. Defendants claim that the trial court erred in not granting a directed verdict in favor of defendants on the basis that no duty was owed plaintiff or that any duty owed was complied with. I agree. There is no duty owed an invitee concerning open and obvious dangers, as the Supreme Court explained in Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 500; 418 NW2d 381 (1988): The duty a possessor of land owes his invitees is not absolute, however. 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. [Emphasis added.] The fact that the danger in this case, an exposed metal spike on a pier, was open and obvious was established by plaintiff's admission that he was aware of the spike's existence. He had, in fact, previously tried, without success, to remove the spike. A similar result is reached if plaintiff was a licensee rather than an invitee. The duty owed to a licensee was stated in Preston v Sleziak, 383 Mich 442, 453; 175 NW2d 759 (1970): The duty which occupiers of land owe their licensees is best expressed by 2 Restatement of Torts (2d), § 342, p 210: "A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if, *712 "(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and "(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and "(c) the licensees do not know or have reason to know of the condition and the risk involved." [Emphasis added.] Thus, again, defendants owed no duty to plaintiff since he was aware of the danger. I recognize that this Court recently held that the doctrine of no duty to warn invitees of open and obvious dangers did not survive the adoption of comparative negligence. See Riddle v McLouth Steel Products Corp, 182 Mich App 259; 451 NW2d 590 (1990). However, unlike my colleagues in the majority, I conclude that Riddle was incorrectly decided. First, and foremost, the Supreme Court reiterated the open and obvious dangers doctrine as recently as 1988 in Williams, supra, some nine years after adopting comparative negligence in Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979).[1] Second, it is for the Supreme Court, not this Court, to overrule Supreme Court precedent. See People v Mitchell, 428 Mich 364, 369-370; 408 NW2d 798 (1987). Third, considerations of stare decisis aside, comparative 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 *713 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. Rather, the more fundamental question is what duty is owed by a possessor of land to his invitees and licensees. Our Supreme Court has long held that no further duty is owed by a possessor of land to an invitee or licensee once the invitee or licensee is aware of the alleged dangerous condition. The Supreme Court's having defined the duty, it is for the Supreme Court, and not this Court, to redefine that duty, if a redefinition is even in order.[2] For the same reasons, I disagree with a similar conclusion by this Court in Forche v Gieseler, 174 Mich App 588; 436 NW2d 437 (1989), which involved a licensee. Accordingly, I would hold that the trial court erred in denying defendants' motion for directed verdict and would remand the matter to the trial court with instructions to enter a judgment of no cause of action in favor of defendants. NOTES [1] Similarly, the Standard Jury Instructions continue to instruct juries that a possessor of land's duty is discharged by warning his invitee or licensee of a dangerous condition. See SJI2d 19.03 and SJI2d 19.06. [2] Unlike my colleagues in Riddle, supra, and Forche v Gieseler, 174 Mich App 588; 436 NW2d 437 (1989), I am not inclined to redefine the land possessor's duty even if it were our prerogative to do so. At some point an individual must assume responsibility for his own conduct. So long as an invitee or licensee is aware of a dangerous condition, be it by a warning from the possessor of land or by his own observation, he can act to avoid injury and should be charged with the sole responsibility of acting to avoid an injury due to the risk of which he is now aware.