United States: Landlord/Tenant Exception to the Open and Obvious Danger Doctrine

The Michigan Supreme Court has extended to landlord tenant cases the rule that the "open and obvious danger" doctrine is unavailable to defendants facing claims of statutory violations. Previously, government entities were prohibited from using this defense to statutory claims, but landlords could assert that tenants were not entitled to recover because their injuries were caused by "open and obvious" dangers.

Government entities have been prohibited from using the "open and obvious danger" defense for nearly a decade. For example, plaintiffs who sue cities for injuries they sustain on city sidewalks generally include allegations that the cities failed to maintain their sidewalks in reasonable repair. However, the cities cannot assert the common law "open and obvious danger" doctrine as a defense because the cities have a statutory duty to maintain the sidewalks. Haas v. City of Ionia, 214 Mich App 361, 362 (1995); see also MCL 691.1402(1). The Haas court explained the basis for this rule:

Haas, 214 Mich App at 362. The cities may only assert that the openness and obviousness of the danger establishes comparative negligence by the plaintiffs. Id. at 363.

The Michigan Supreme Court recently extended the prohibition against the use of the "open and obvious danger" defense to lawsuits filed by tenants against landlords when the tenants claim that the landlords violated the "reasonable repair" requirement of the Michigan warranty of habitability, MCL 554.139(1)(b). See Woodbury v. Bruckner, No. 120731 (Mich. Dec. 26, 2002). The warranty of habitability states, in pertinent part: "In every lease or license of residential premises, the lessor or licensor covenants … [t]o keep the premises in reasonable repair during the term of the lease or license .…" MCL 554.139(1)(b).

The Supreme Court reached this decision in a case brought by Ruth Woodbury, a tenant who fell 30 feet from an unrailed roof-top porch over her apartment and sustained serious injuries. Woodbury v. Bruckner, No. 204411, 1998 WL 1988761 (Dec. 1, 1998) (per curium). The trial court granted summary disposition to the landlords because the tenant used the unrailed roof-top despite the obvious danger of falling from it. See id. On appeal, the Michigan Court of Appeals reversed and remanded the case back to the trial court to determine whether the unrailed roof-top was unreasonably dangerous despite being open and obvious. Woodbury v. Bruckner, No. 204411, 1998 WL 1988761 (Dec. 1, 1998) (per curium).

The plaintiff then filed her first appeal to the Michigan Supreme Court, which vacated the 1998 opinion of the Court of Appeals. Woodbury v. Bruckner, 464 Mich 875 (2001). The Supreme Court also directed the appellate court to determine whether the statutory warranty of habitability, MCL 554.139, gave rise to a duty in tort. Id. If so, the Court of Appeals was to determine whether the defendant landlords could avoid liability arising from this statute by relying on the "open and obvious danger" doctrine. Id.

On remand, the Court of Appeals found that the existence of a duty under MCL 554.139 was irrelevant because a duty in tort already existed. Woodbury v. Bruckner, 248 Mich App 684 (2001). However, assuming that such a statutory duty existed, the appellate court concluded that the defendants could raise the "open and obvious danger" defense to it. Id. But the Court of Appeals noted that this defense was not applicable in the Woodbury case because a question of fact existed as to whether the roof-top porch was unreasonably dangerous despite being open and obvious. Id.

The plaintiff again appealed to the Michigan Supreme Court. In lieu of granting leave to appeal, the Michigan Supreme Court remanded the case to the Court of Appeals to determine whether the landlords violated the "reasonable repair" requirement of MCL 554.139(1)(b). Woodbury v. Bruckner, No. 120731 (Mich. Dec. 26, 2002). The Supreme Court also noted that "[t]he open and obvious doctrine cannot be used to avoid a specific statutory duty." Id. (citing Jones v. Enertel, Inc., 467 Mich 266, 270 (2002)).

The Supreme Court’s holding effectively precludes landlords from using the "open and obvious danger" defense when tenants’ claims are based upon the warranty of habitability. Plaintiffs will likely amend complaints to include allegations that landlords violated their statutory duty under MCL 554.139.

Landlords can no longer rely upon the "open and obvious danger" doctrine as a defense to statutory claims filed by tenants. If a tenant alleges that a landlord violated the "reasonable repair" requirement of the warranty of habitability, MCL 554.139(1)(b), the landlord may not avoid liability by asserting that the tenant was injured by an open and obvious condition on the property. We anticipate that plaintiffs’ attorneys will amend complaints to include allegations that landlords violated statutory duties under MCL 554.139.