Genuine questions of material fact concerning both breach and comparative fault remain in an injured golfer’s premises liability suit, an appeals court panel has held, vacating a trial court’s order denying the golf course’s motion for summary disposition.
The judges said a remand is required in light of last year’s holding in Kandil Elsayed v. F & E Oil, Inc. , which significantly changed the legal framework for premises liability claims.
“Under Kandil-Elsayed , the issues whether the condition of the step was open and obvious, whether defendant should have anticipated the harm despite its obviousness, and whether plaintiff was negligent in navigating the steps are relevant to breach and comparative fault,” the panel wrote. “Both breach and comparative fault are typically questions of fact to be decided by the jury.”
The unpublished decision is Cook v. Green Hills Golf Inc. ( MiLW 08-107941 , 5 pages). Judges Michael F. Gadola, Stephen L. Borrello and Sima G. Patel sat on the panel.
Sterling Heights attorney Jeffery A. Taylor represented the plaintiff, and Errick A. Miles of Smith Bovill in Saginaw represented the defendant. Neither could be reached for comment.
Fifth tee box
Otis Cook was a part of a group of 20 people, divided into five foursomes, playing a round of golf at Green Hills Golf Course in September 2018.
It was warm and cloudy that morning, with a little bit of moisture on the ground. A short, gradual flight of steps made of wooden railroad ties led to the tee box on the fifth hole. The center of each step was covered with a rubber pad.
Cook didn’t notice anything as he made his way up the stairs to the fifth tee box. After teeing off, he went down the stairs as another member of his foursome was coming up. Cook fell on the stairs, and immediately felt pain in his back and both knees. He wasn’t sure, but he believed his left foot got caught in a hole in the steps. An ambulance was called to take him to the hospital.
Cook brought a premises liability claim against the golf course.
Green Hills countered with a motion for summary disposition under MCR 2.116(C)(10) . Since the steps were an open and obvious hazard with no special aspects making them unreasonably dangerous or effectively unavoidable, Cook’s claim was barred, Green Hills argued. The golf course added that there was no evidence that they knew or should have known of any hazardous condition.
Cook claimed there was a genuine question of material fact whether the condition of the stairs and lack of a handrail constituted special aspects that made the steps unreasonably dangerous.
The Bay Circuit Court denied Green Hills’ motion. The court said there was a genuine question of material fact whether there were special aspects making the steps unreasonably dangerous.
In May 2023, the appeals court granted Green Hills' application for leave to appeal. Two months later, the Supreme Court issued its decision in Kandil-Elsayed.
Vacated
Cook was a business invitee since he was playing golf at Green Hills when he allegedly fell.
But Kandil-Elsayed overruled Lugo v. Ameritech Corp Inc. , and brought about significant changes in the legal framework for the duty element of a premises liability claim, the panel pointed out.
The decision reaffirmed the duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land and that the open and obvious nature of a hazard is still an objective inquiry.
“However, whether a condition is open and obvious should no longer be analyzed as part of the duty element of a premises liability claim because such an inquiry is instead relevant to the issues of the defendant’s breach and the plaintiff’s comparative fault,” the panel explained.
The Kandil-Elsayed court also tossed the special-aspects doctrine “to the ‘the extent that it departed from the anticipation-of-harm standard in 343A of the Second Restatement .’” Instead of conducting a narrow analysis of whether an obvious hazard is “‘effectively unavoidable or poses an ‘unreasonable risk of severe harm,’” the fact-finder should contemplate whether “‘the possessor should anticipate the harm despite such obviousness.’”
The justices made clear that “whether a land possessor should anticipate harm from an otherwise open and obvious danger is a relevant inquiry under breach , not duty.”
Since then, the appeals court held in Gabrielson v. Woods Condo Ass’n, Inc. , that Kandil-Elsayed operates retroactively to “all cases currently pending on direct appeal.”
The panel said there appears to be genuine questions of material fact concerning both breach and comparative fault. However, Cook hasn’t submitted a brief on appeal, and Green Hills hasn’t offered any discussion or argument addressing Kandil-Elsayed ’s impact.
“Considering that the trial court did not have the benefit of our Supreme Court’s decision in Kandil-Elsayed when deciding the motion for summary disposition , we simply vacate the trial court’s ruling due to the intervening change in the law and remand this matter for further proceedings consistent with our Supreme Court’s opinion in Kandil-Elsayed ,” the judges wrote.
If you would like to comment on this story, contact Cory Linsner at clinsner@milawyersweekly.com .
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