A recent premise liability case leaves this Speaker speechless. The Court of Appeal, on reconsideration, in Chesser v Radisson Plaza Hotel, unpublished per curiam opinion of the Court of Appeals, April 19, 2012 (Docket No 299776), left one Speaker without a leg to stand on, which is not surprising given the current state of premise liability in Michigan. Ms. Chesser was asked to give a short speech at an event held at the Radisson Plaza Hotel. The Radisson set up a stage with a podium in front of a table where presenters were seated while awaiting their turn to speak. The table was towards the back of the stage, the chairs were given slight room to be pulled out before there was a considerable gap between the end of the stage and a wall without a guard rail. Ms. Chesser acknowledged that she had traversed the stage just fine to get up to give her speech, however, on the way back to her seat, upon taking one step forward behind the third seat she passed, her foot "stepped on air," and down she fell. The full force of the fall was felt in her shoulder.
Not surprising to this Speaker, the defense moved for summary disposition on open and obvious. The trial court denied summary disposition, finding that there was a genuine issue of fact for the jury decide if the hazard was open and obvious. The Court of Appeals however, reversed finding that the hazard was in fact open and obvious. The Court rejected plaintiff’s argument that "because she did not see the hazards presented and nobody else has presented testimony on point, the hazards must not have been apparent." Id at 3. The Court analogized this argument to a res ipsa loquitur argument, and made clear that the standard is an objective standard, tested by whether a reasonable person would have foreseen the danger, not what a particular plaintiff knew. The Court also rejected the plaintiff’s argument on special aspects. It said that age is not a special aspect because special aspects go to the characteristics of the premises not the plaintiff. Finally, the Court was not receptive to plaintiff’s argument that the special aspects present in this situation fell within the effectively unavoidable category. However, the Court was quick to point out that plaintiff’s argument citing to "alleged industry standards for stage erection and purported admissions of negligence by defendant’s employees" would have been relevant to a special aspects argument under the unreasonably dangerous argument. Id at 3. Since plaintiffs failed to argue it, the Court says it’s abandoned, much like the Court has abandoned the majority of premises liability plaintiffs since its opinion in Lugo.