United States: No Open and Obvious Defense for Contractor

Case Name: Hysni v Cornwall Plumbing, et al

Issue: Is the open and obvious defense available to a defendant in a non-premises liability and non-failure to warn case?

Court: Michigan Court of Appeals. Unpublished decision.

Holding: Plaintiff allegedly received second and third degree burns from hot water in his shower at his apartment. The shower and shower elements were installed by Cornwall Plumbing, a subcontractor for the owner of the complex. The owner and management company were also named as defendants. Plaintiff alleged that the scald guard and "limit stop screw" with which the shower was equipped had not been properly installed and that the hot water temperature gauge was set to the highest level, causing the water’s temperature to unexpectedly surge to approximately 150 degrees.

The trial court dismissed the owner and manager, holding that the scalding nature of the shower water was open and obvious. However, the trial court denied Corwall’s motion for summary disposition on the open and obvious defense, holding that the defense was not available to a contractor in a general negligence case.

In regard to the owner and manager, the Court of Appeals reversed the trial court’s dismissal due to "new developments in that area of law." Specifically, that the statutory duties imposed on landlords in residential leases (i.e., to keep the property in "reasonable repair") could not be avoided by the common law open and obvious defense. This portion of the case was remanded to the trial court for a resolution of the factual dispute about the applicability and possible violation of the statute in this case.

In regard to Cornall, the Court of Appeals agreed with the trial court’s denial of summary dismissal, holding that the open and obvious defense only applied to premises liability and failure to warn cases.

This panel of the Court of Appeals did not address its previous published (and therefore binding) decision in Ghaffari v Turner Construction Co., et al, __ Mich App __ (2003). This is particularly strange since Judges Owens and Schuette sat on the appellate panels in both cases.

In Ghaffari, Plaintiff sued a general contractor, plumbing company and plumbing contractor of a construction site for a trip and fall over loose pipes on the ground left by a subcontractor. Plaintiff alleged theories of general contractor liability and ordinary negligence (just like the instant case) The Ghaffari Court held that the pipes were open and obvious, and the general contractor was entitled to the defense because Michigan law did not preclude nor suggest preclusion of the defense in non-premises liability contexts.

There is hope. The Michigan Supreme Court currently has a case before it involving this very issue, and a decision is expected sometime this year.

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