|123ConEd||-- 02-10-2009 @ 7:15 PM|
Here is a summary of a case that was decided several months ago by the Michigan Court of Appeals that concerns a lawsuit filed by a real estate assistant who was injured while showing a house. Dyer v. Russell, No. 273574, 2007 WL 4415467 (Mich. Ct. App., decided December 18, 2007).
Plaintiff Amy Dyer, a licensed realtor’s assistant, went to defendant’s home for the purpose of showing the house to potential buyers. While walking down defendant’s basement staircase, she slipped and fell. Plaintiff brought suit against defendant on a premises liability (negligence) theory. The trial court granted defendant’s later motion for summary disposition, indicating that the owner of a private home placed for sale does not owe a duty to ensure that all building codes are met and the condition of the stairs was open and obvious. The Michigan Court of Appeals agreed with defendant and affirmed the trial court’s summary disposition.
Plaintiff first argued that the open and obvious doctrine does not apply where, as here, a statute or ordinance imposes an independent duty upon a landowner. Plaintiff contended that the Michigan Residential Code imposed a statutory duty on defendant. However, plaintiff did not cite any authority to show that private owners are responsible under a municipal building code for injuries sustained on their premises due to a danger that would otherwise be classified as open and obvious. Accordingly, in the absence of any such authority, the court found no reasonable basis to impose liability on defendant for any possible code violation related to the condition of the stairs. The issue became, then, whether the condition of the stairs was open and obvious.
In this case, plaintiff testified that the stairs were narrow, steep, and lacked handrails or walls on either side. She also testified that the stairs appeared dangerous, but chose to use them anyway. The court held that, because plaintiff admitted that she hesitated before going down the stairs precisely because they appeared to be dangerous, the condition of the stairs was clearly open and obvious. Plaintiff also attempted to claim that the open and obvious doctrine should not be applied in this case because as a realtor’s agent -- or more specifically, as a licensed assistant to a licensed real estate professional –- there is a special aspect. That is, she contended that the stairs were effectively unavoidable because she had some obligation to defendant to descend the basement stairs. The court did not buy this creative argument finding that the likelihood of harm associated with descending the flight of stairs into the basement of the home was not uniquely high, nor was the severity of the potential harm.
In summary, the plaintiff real estate assistant lost her lawsuit against the home owner because she decided to ignore an open and obvious danger.
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