IN RE LAIER ESTATEAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
DONALD A. LAIER, Personal Representative of
the Estate of RODNEY ALAN LAIER, Deceased,
May 24, 2005
Washtenaw Circuit Court
LC No. 02-000839-NO
LEONARD K. KITCHEN,
Official Reported Version
Before: Hoekstra, P.J., and Neff and Schuette, JJ.
Plaintiff appeals as of right an order of the trial court granting summary disposition for
defendant and dismissing plaintiff 's wrongful death action following his son's death in a farm
equipment accident on defendant's property. We reverse and remand.
The decedent, Rodney Laier, was killed in an accident on defendant's property while
assisting defendant with hydraulic hose repairs on the front-end loader of a tractor borrowed
from plaintiff, which defendant broke while using it to compress materials in a dumpster.
During the attempted repair, the bucket on the loader dropped, pinning Rodney against the
tractor and killing him. The question presented is whether the open and obvious danger doctrine
applies to limit defendant's liability under a theory of ordinary negligence as well as a theory of
premises liability. We hold that the open and obvious danger doctrine is inapplicable to
plaintiff 's ordinary negligence claim. We further hold that although the open and obvious
doctrine applies to plaintiff 's premises liability claim, genuine issues of material fact preclude
summary disposition on the record before us.
On July 30, 1999, defendant and Rodney borrowed a 1967 John Deere model 3020
tractor from plaintiff to use on defendant's horse farm. The tractor was equipped with a large
front-end loader bucket that was powered by the tractor's hydraulic system. Defendant used the
tractor to compress materials in a dumpster on his property. As defendant lowered the bucket
into the dumpster to compress the materials, he struck the dumpster with a hydraulic hose on the
front-end loader. The hose was torn from the connector fitting, causing hydraulic fluid to spew
from the hose and making the front-end loader inoperable. Defendant clamped off the hose with
a Vice-Grip to prevent more fluid from leaking out, permitting the front-end loader to partially
The following day defendant contacted Rodney and asked for his assistance in repairing
the front-end loader. Defendant and Rodney traveled into town and obtained parts to fix the
hydraulic hose. While the factual record of the accident is limited, upon returning to defendant's
farm, defendant got on the tractor and raised the bucket four or five feet, then got off the tractor
to assist Rodney, who stood between the tractor and the bucket to repair the hose and fitting. It
appears that Rodney then removed the broken fitting, and either removed the hose from the good
fitting or the hose blew off the good fitting. When the pressure in the hydraulic system was
released, the bucket dropped, pinning Rodney between the bucket and the front-end of the
tractor. Rodney suffered a large laceration to the left side of his chest and crushing chest trauma
that caused his death.
Plaintiff filed this wrongful death action alleging that Rodney's death was caused by
defendant's negligence. The trial court granted defendant's motion for summary disposition and
dismissed plaintiff 's action on the ground that a landowner has no duty to protect or warn an
invitee1 of open and obvious dangers. The court found that the dangers of releasing a Vise-Grip
on a hydraulic system were open and obvious and there was no special aspect of the dangerous
condition that made the open and obvious condition unreasonably dangerous. The court noted
that defendant knew little, if anything, about the repair of the tractor while Rodney was quite
knowledgeable and decided how to undertake the repair.
III. Standard of Review
This Court reviews de novo questions of law. Dressel v Ameribank, 468 Mich 557, 561;
664 NW2d 151 (2003). Likewise, the trial court's decision on a motion for summary disposition
is reviewed de novo.
The trial court granted summary disposition for defendant pursuant to MCR
2.116(C)(10), "which tests the factual support for a claim." Dressel, supra. On review, this
Court must consider the record in the light most favorable to the nonmovant to determine
whether any genuine issue of material fact exists that precludes entering judgment for the
moving party as a matter of law. Id.; Morales v Auto-Owners Ins Co, 458 Mich 288, 294; 582
NW2d 776 (1998). Review is limited to the evidence presented to the trial court at the time the
motion was decided. Peña v Ingham Co Rd Comm, 255 Mich App 299, 313 n 4; 660 NW2d 351
Although a duty owed by a premises owner depends on the status of the injured party, James v
Alberts, 464 Mich 12, 19-20; 626 NW2d 158 (2001), quoting Stitt v Holland Abundant Life
Fellowship, 462 Mich 591, 596-597; 614 NW2d 88 (2000), defendant did not dispute plaintiff 's
classification of Rodney as an invitee.
IV. Open and Obvious Danger Doctrine
The trial court held that plaintiff 's claim was precluded by the open and obvious danger
doctrine. However, this case involves claims of both ordinary negligence and premises liability,
and it must be analyzed accordingly. The distinction in theory is important and is one that the
bench and bar have increasingly failed to recognize in applying the open and obvious danger
The open and obvious danger doctrine is commonly applied in products liability and
premises liability cases as a limitation on the duty of care owed, often in the context of a duty to
warn. Bertrand v Alan Ford, Inc, 449 Mich 606, 610, 614; 537 NW2d 185 (1995); Glittenberg v
Doughboy Recreational Industries (On Rehearing), 441 Mich 379, 390, 403; 491 NW2d 208
(1992). In general, there is no obligation to warn someone of dangers that are so obvious and
apparent that a person may reasonably be expected to discover them and protect himself or
herself. Prosser & Keaton, Torts (5th ed), § 61, p 427. The rationale underlying this doctrine is
that "there should be no liability for failing to warn someone of a risk or hazard [that] he
appreciated to the same extent as a warning would have provided." Prosser & Keaton, § 96, p
686. Further, invitors "are not absolute insurers of the safety of their invitees." Bertrand, supra
As our Supreme Court explained in Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629
NW2d 384 (2001), the open and obvious danger doctrine should not be viewed as an exception
to the duty generally owed invitees; rather, it is an integral part of the definition of that duty.
"Duty exists because the relationship between the parties gives rise to a legal obligation."
Bertrand, supra at 614. However, public policy may limit the scope of that duty. Id.
In the context of premises liability, the general rule is that a "premises possessor owes a
duty to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of
harm caused by a dangerous condition on the land." Lugo, supra at 516. This duty does not
require a premises possessor to protect an invitee from open and obvious dangers unless special
aspects of a condition make even an open and obvious risk unreasonably dangerous:
When §§ 343 and 343A [of the Restatement Torts, 2d] are read together,
the rule generated is that if the particular activity or condition creates a risk of
harm only because the invitee does not discover the condition or realize its
danger, then the open and obvious doctrine will cut off liability if the invitee
should have discovered the condition and realized its danger. On the other hand,
if the risk of harm remains unreasonable, despite its obviousness or despite
knowledge of it by the invitee, then the circumstances may be such that the invitor
is required to undertake reasonable precautions. [Id. at 516-517, quoting
Bertrand, supra at 611.]
In the context of products liability, the rules are analogous and based on similar policy.
"For policy reasons, the law qualifies a manufacturer's duty to warn by declaring some risks to be
outside that duty." Glittenberg, supra at 389. In general, "[m]anufacturers have a duty to warn
purchasers or users of dangers associated with the intended use or reasonably foreseeable misuse
of their products . . . ." Id. at 387. However, the open and obvious danger rule applies to limit
that duty. Id. at 390. "A manufacturer has no duty to warn if it reasonably perceives that the
potentially dangerous condition of the product is readily apparent or may be disclosed by a mere
casual inspection, and it cannot be said that only persons of special experience will realize that
the product's condition or characteristic carries with it a potential danger." Id. at 390-391.
With regard to simple products, "the duty inquiry asks whether people must be told what
they already know," e.g., that a knife cuts or a stove burns. Id. at 391. That is, "an obvious
danger is no danger to a 'reasonably' careful person." Id. at 396. "[I]f the risk is obvious from
the characteristics of the product, the product itself telegraphs the precise warning that plaintiffs
[would claim] is lacking." Id. at 394. Accordingly, a "manufacturer of a simple product has no
duty to warn of the product's potentially dangerous conditions or characteristics that are readily
apparent or visible upon casual inspection and reasonably expected to be recognized by the
average user of ordinary intelligence." Id. at 385.
Whether a defendant may properly rely on the defense of open and obvious danger
depends on the theory of liability at issue. Walker v Flint, 213 Mich App 18, 20-22; 539 NW2d
535 (1995). The defense is clearly available in response to a premises liability or product
liability claim based on a failure to warn. Glittenberg, supra at 390, 403; Riddle v McClouth
Steel Products Corp, 440 Mich 85, 96-97; 485 NW2d 676 (1992); Walker, supra. This Court has
further held that the doctrine applies to a premises liability case whether the plaintiff has pleaded
the claim as a failure to warn of a dangerous condition or as a breach of duty in allowing the
dangerous condition to exist. Millikin v Walton Manor Mobile Home Park, Inc, 234 Mich App
490, 497; 595 NW2d 152 (1999) (injured plaintiff, who fell over a supporting wire for a utility
pole, alleged that the defendant allowed the support wire to be where it was in an unreasonable
and negligent manner). However, the doctrine does not exonerate a defendant from liability
where the claim is one of a statutory duty to maintain and repair the premises. Walker, supra at
22. It is with this background in mind that we now consider the claims before us.
V. Analysis of Plaintiff 's Claims
In this case, plaintiff 's complaint alleged a single count of negligence without identifying any
specific theory of liability. It was clear from the duties alleged in the complaint, and plaintiff 's
argument, however, that plaintiff was relying in part on a theory of premises liability.
Accordingly, defendant argued, and the trial court apparently agreed, that plaintiff 's claim was
precluded by the open and obvious danger doctrine, regardless of the theory of liability.2 To the
extent that plaintiff pleaded a viable claim of ordinary negligence, dismissal on the basis of the
open and obvious danger doctrine was improper. There is no doctrinal basis for extending the
open and obvious danger defense to ordinary negligence.
Part of the difficulty in this case stems from plaintiff 's lack of specificity in his pleadings and
arguments. It is incumbent upon plaintiffs to properly set forth their causes of action and
theories of liability, particularly in the complex area of negligence law, to enable the parties to
argue, and the courts to apply, appropriate legal analysis. In an effort to assist in that regard, we
give due consideration to what we presume are plaintiff 's claims despite these shortcomings.
Although case law may appear to support the extension of the open and obvious danger
doctrine to circumstances similar to the negligence claim in this case, these cases merely reflect
differing applications of the doctrine in the contexts of premises liability and products liability.
Michigan law concerning the open and obvious danger doctrine is derived from § 343A(1) of 2
Restatement Torts, 2d, p 218, which provides:
A possessor of land is not liable to his invitees for physical harm caused to
them by any activity or condition on the land whose danger is known or obvious
to them, unless the possessor should anticipate the harm despite such knowledge
or obviousness. [Emphasis added. See Bertrand, supra at 610.]
The confusion that has arisen apparently stems from the Restatement's reference to "any activity
or condition on the land," thus prompting a misconception that the doctrine applies whenever the
alleged negligence involves an activity or condition on the land. However, that language is
clearly relevant only if the claim concerns the liability of a possessor of land to his invitees, i.e.,
premises liability. Likewise, the reference to a "condition on the land" in cases involving
licensees is derived from § 342 of 2 Restatement Torts, 2d, p 210, and concerns only liability as
a possessor of land, not negligent conduct in general.
In Klimek v Drzewiecki, 135 Mich App 115; 352 NW2d 361 (1984), this Court applied the
open and obvious danger doctrine in a premises liability case. The plaintiff sought recovery for
injuries sustained by her four-year-old son, who was bitten on the face by a dog while the child
was playing, unsupervised, outside the home of the defendant, plaintiff 's sister. Id. at 117-118.
Plaintiff and her son were social guests of the defendant, and the dog belonged to the defendant's
neighbor. Id. at 118. The Court held "that a loose, unsupervised and dangerous dog either on the
defendant's land or in close proximity to the defendant's land without any obstacle to prevent it
from entering [the] defendant's land constituted a 'condition on the land' as that term is used in . .
. 2 Restatement Torts, (2d), § 342, p 210." Id. at 119.
Similarly, Eason v Coggins Mem Christian Methodist Episcopal Church, 210 Mich App
261; 532 NW2d 882 (1995), was a premises liability case in which the plaintiff 's decedent, an
invitee, was fatally injured when a ladder and scaffolding set up by the defendant's agents
collapsed, allegedly because the ladder was missing a safety latch. Id. at 262-263. The Court
observed that the care required of a landowner to make premises safe for invitees extended to
instrumentalities on the premises that the invitee uses at the invitation of the premises owner. Id.
at 264. Accordingly, the Court concluded that the defendant may be liable on a theory of
premises liability because the defect in the ladder was alleged to be latent and not open and
obvious. Id. at 266. In Eason, as in Klimek, the analysis addressed no allegation of negligent
conduct by the defendant beyond the mere failure to exercise care as the owner of the premises.
In Resteiner v Sturm, Ruger & Co, Inc, 223 Mich App 374; 566 NW2d 53 (1997), this
Court applied the open and obvious danger doctrine to a revolver because the claim was a
product liability claim involving a failure to warn against the danger of theft. Id. at 380. The
analysis in Resteiner is therefore grounded in product liability law. "The manufacturer of a
simple product has no duty to warn of the product's potentially dangerous conditions or
characteristics when they are readily apparent or visible upon casual inspection and reasonably
expected to be recognized by the average user of ordinary intelligence." Id. at 380 (opinion by
White, P.J.); see also Glittenberg, supra (discussing application of the open and obvious danger
doctrine in the context of products liability law).3
In a negligence case, the theory of liability determines the nature of the duty owed and
whether the open and obvious danger doctrine is applicable. In a premises liability claim,
liability emanates merely from the defendant's duty as an owner, possessor, or occupier of land.
However, that does not preclude a separate claim grounded on an independent theory of liability
based on the defendant's conduct, as in this case. Here, defendant sought Rodney's assistance in
repairing the front-end loader. Plaintiff alleged liability based on defendant's failure to exercise
care in the repair of the front-end loader and his operation of the equipment before the bucket fell
and injured Rodney, which was an additional theory of liability separate from that of premises
liability. See Walker, supra at 21-22 (failure to warn was an additional theory of liability where
the plaintiff also alleged a breach of statutory duty).
A. Ordinary Negligence Claim
Plaintiff 's complaint stated that defendant "owed a duty to Rodney to use due care and
caution in the operation and control of the tractor and bucket." Defendant's conduct was thus an
alleged basis of liability, independent of premises liability. James v Alberts, 464 Mich 12, 19;
626 NW2d 158 (2001). Although there was evidence that Rodney was employed by defendant
as a farm manager, the record is inconclusive regarding his employment status at the time of the
accident. Regardless, the fact that Rodney was voluntarily assisting defendant does not
necessarily preclude plaintiff 's alleged claim. "[I]f a person is injured by the direct negligence of
another, whom he is attempting to assist, the latter's duty generally turns on foreseeability." Id.
at 15; see also 18A Michigan Civil Jurisprudence, Negligence, § 15, p 103 ("Every person who
engages in the performance of an undertaking has an obligation to use due care or to act so as not
to unreasonably endanger the person or property of another."). Moreover, "[a] higher degree of
care is required in dealing with a dangerous agency than in the ordinary affairs of life or
business, which involve little or no risk, and, as no absolute standard can be fixed by law, every
reasonable precaution suggested by experience and the known danger ought to be taken." Id., §
29, pp 122-123.
Plaintiff thus alleged a claim of ordinary negligence, to which the open and obvious
danger defense is inapplicable. That is not to say that other similar defenses may not be properly
applied. However, the defense must be considered in light of the duty at issue. For example, a
Valinski v Little Mexico Restaurant, unpublished opinion per curiam of the Court of Appeals,
issued September 24, 2002 (Docket No. 233446), also appears to apply the open and obvious
danger doctrine to claims analogous to those in this case. The Court concluded that a hot skillet
used by the defendant restaurant to serve food to the plaintiff was within the scope of the open
and obvious doctrine. Id. at slip op pp 2-3. However, a review of the cases cited reveals that the
analysis is merely an amalgamation of product liability and premises liability precedents.
Regardless, Valinski is not binding precedent. MCR 7.215(C)(1).
premises owner's liability with regard to dangerous power tools, such as lawn mowers, is not
grounded in mere premises liability:
It is generally true that one's right to maintain for a lawful purpose a
dangerous appliance or instrumentality on his own premises is not limited or
qualified by the degree in which it may be dangerous. Moreover, liability for
negligence in keeping a dangerous instrumentality is not an absolute liability, and
the mere fact that an instrumentality may become dangerous to others does not
constitute its possessor an insurer against injury that may result therefrom. On the
contrary, liability for negligence in respect to dangerous instrumentalities, as
liability for negligence generally, arises from the failure to use due care, and one
who causes or authorizes the use of a dangerous instrument or article in a
negligent manner, or under such circumstances that he has reason to know it is
likely to produce injury, is responsible for the natural and probable consequences
of his act to any person injured who is not himself at fault. [Anno: Liability of
owner or occupant of premises to injured person permitted to use power tools or
appliances, § 1a, 46 ALR2d 1377-1378.]
Both Rodney and defendant were aware that the tractor's hydraulic system was broken.
The two set out to repair it, and defendant was in the position to control the bucket, which he
raised four or five feet so that Rodney could get into a position to work on the hydraulic hose and
fitting. It is not at all clear what happened next to cause the bucket to fall and fatally injure
Rodney, but it is arguable that some action or inaction of defendant resulted in the fatal event.4
What is clear is that defendant failed to secure the bucket in the raised position. Under these
circumstances, questions of negligence and comparative negligence are properly left to the jury.
"To establish a prima facie case of negligence, a plaintiff must prove four elements: (1) a
duty owed by the defendant to the plaintiff, (2) breach of that duty, (3) causation, and (4)
damages." Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). "Duty" is a
legally recognized obligation "to conform to a particular standard of conduct to protect others
against an unreasonable risk of harm." Burnett v Bruner, 247 Mich App 365, 368; 636 NW2d
733 (2001), quoting Riddle, supra at 96. Ordinarily, whether a duty exists is a question of law
for the court. Burnett, supra at 368. If there is no duty, summary disposition is proper.
Beaudrie v Henderson, 465 Mich 124, 130; 631 NW2d 308 (2001). However, if factual
questions exist regarding what characteristics giving rise to a duty are present, the issue must be
submitted to the fact-finder. Howe v Detroit Free Press, Inc, 219 Mich App 150, 156; 555
NW2d 738 (1996), aff 'd 457 Mich 871 (1998). Determination of the existence of duty, as a
To the extent that plaintiff failed to fully articulate the nature of the duty at issue in his
complaint, the claim is nonetheless properly considered on remand. See Eason, supra at 266
(although the plaintiff went beyond the four corners of the complaint to explain her specific
theory of latent defect in the ladder at the motion hearing, her comments merely showed that
further factual development may establish a theory of recovery).
question of law, is subject to review de novo on appeal. Fultz v Union-Commerce Associates,
470 Mich 460, 463; 683 NW2d 587 (2004).
An adult plaintiff has a duty to exercise reasonable care for his own safety and protection.
Berry v J & D Auto Dismantlers, Inc, 195 Mich App 476, 484; 491 NW2d 585 (1992). Thus, the
doctrine of pure comparative negligence distributes responsibility according to the proportionate
fault of the parties. It requires that a plaintiff 's damages be reduced in the same proportion by
which the plaintiff 's own conduct contributed to his or her injuries. MCL 600.2959; Placek v
Sterling Hts, 405 Mich 638, 660-661, 681; 275 NW2d 511 (1979). The standards for
determining the comparative negligence of a plaintiff are the same as those of a defendant—the
jury must consider the nature of the conduct and its causal relationship to the damages—and the
question is one for the jury unless all reasonable minds could not differ or because of some
ascertainable public policy consideration. MCL 600.6304(2); Rodriquez v Solar of Michigan,
Inc, 191 Mich App 483, 488; 478 NW2d 914 (1991).
Defendant owed the decedent a duty of ordinary care not to act negligently with regard to
the repairs undertaken and control of the tractor's front-end loader. That is, plaintiff 's decedent
was in a position of peril under the bucket and involved in an undertaking with defendant at the
time the fatal injury occurred. That the bucket fell and killed Rodney may or may not have been
the proximate result of defendant's negligence. The fact that Rodney was in a position of peril
may or may not have been the result of his own comparative negligence. On the record and
pleadings before us, it appears that there may be genuine issues of material fact regarding all
B. Premises Liability Claim
In addition to the duty owed concerning conduct, plaintiff alleged a duty based on
Rodney's status as an invitee, i.e., a duty to protect Rodney from unreasonable risks of injury
known to defendant and to warn Rodney about those risks. This allegation was the basis of
plaintiff 's claim of premises liability, to which the open and obvious danger doctrine properly
As discussed previously, in general, a premises possessor has no duty "to protect an
invitee from open and obvious dangers, but, if special aspects of a condition make even an open
and obvious risk unreasonably dangerous, the possessor has a duty to undertake reasonable
precautions to protect invitees from that risk." Lugo, supra at 517.
[W]ith regard to open and obvious dangers, the critical question is whether
there is evidence that creates a genuine issue of material fact regarding whether
there are truly "special aspects" of the open and obvious condition that
differentiate the risk from typical open and obvious risks so as to create an
unreasonable risk of harm, i.e., whether the "special aspect" of the condition
should prevail in imposing liability upon the defendant or the openness and
obviousness of the condition should prevail in barring liability. [Id. at 517-518.]
A plaintiff 's knowledge and level of care used are irrelevant in determining whether a
condition that was either created or allowed to continue by a premises possessor was
unreasonably dangerous. Lugo, supra at 523-524. The correct inquiry focuses on the condition
of the premises and whether it was open and obvious, and, if so, whether special aspects of the
situation nevertheless made it unreasonably dangerous. Id. at 523. Because Michigan follows
the rule of comparative negligence, the fact that a plaintiff was also negligent does not bar a
cause of action. Id. Accordingly, in deciding a motion for summary disposition in an open and
obvious danger case, the court must focus on the objective nature of the condition of the
premises at issue. Id. at 524.
"Whether a . . . danger is open and obvious depends on whether it is reasonable to expect
an average user of ordinary intelligence to discover the danger upon casual inspection." Kenny v
Kaatz Funeral Home, Inc, 264 Mich App 99, 105; 689 NW2d 737 (2004); Weakley v Dearborn
Hts, 240 Mich App 382, 385; 612 NW2d 428 (2000). This test focuses on the "reasonably
prudent person," and is, therefore, objective in nature. Mann v Shusteric Enterprises, Inc, 470
Mich 320, 329 n 10; 683 NW2d 573 (2004); Kenny, supra at 105-106. Thus, courts are required
to determine whether a reasonable person in the plaintiff 's position would foresee the danger,
and not whether a particular plaintiff should have foreseen the danger. Mann, supra at 329;
Lugo, supra at 518 n 2; Kenny, supra at 106 (emphasis added).
In the present case, the trial court found:
[T]he dangers of releasing a vice grip [sic] on a hydraulic system were
open and obvious. That is, decedent could have discovered the condition upon
casual inspection. Because decedent was knowledgeable about the attempted
repairs and no special aspect "of the dangerous condition existed" in this
particular case. [Sic.] Indeed the evidence is uncontroverted that the defendant
knew little, if anything about the repair of the tractor. While decedent was quite
knowledgeable and decided how to fix it.
Accordingly, there is no duty for defendant to warn or instruct the
decedent on how to fix the tractor. [Emphasis added.]
The trial court erred in relying on this subjective analysis to determine that the dangerous
condition of the tractor was open and obvious. The court subjectively weighed Rodney's
knowledge of farm machinery maintenance and repair, rather than evaluating whether a
reasonably prudent person of ordinary intelligence would have discovered the danger on casual
inspection. Rodney's knowledge of farm equipment, general maintenance, and repair, and
defendant's awareness of that knowledge, are irrelevant under the reasonably prudent person
standard of the open and obvious danger doctrine.
Likewise, the record suggests that the trial court applied the same incorrect subjective
standard in determining whether special aspects existed based on what Rodney did and did not
know. In Bertrand, supra at 617, the Court considered whether a special aspect was created by
the character, location, or surrounding conditions of the risk, in that case, steps. Subsequently, in
Lugo, the Court noted that special aspects such as an unavoidable condition or one that poses an
unreasonably high risk of severe harm can render an open and obvious condition unreasonably
dangerous. Lugo, supra at 518. The consideration of any special aspects in this case should be
Summary disposition under MCR 2.116(C)(10) is properly granted if there is no genuine
issue regarding any material fact and if the moving party is entitled to judgment or partial
judgment as a matter of law. Kenny, supra at 104. "A genuine issue of material fact exists when
the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue
upon which reasonable minds might differ." West v Gen Motors Corp, 469 Mich 177, 183; 665
NW2d 468 (2003). Given the trial court's erroneous subjective analysis of the open and obvious
danger issues, summary disposition of plaintiff 's premises liability claim was improper. On the
record before us, it cannot be said that no genuine issue of material fact exists on which
reasonable minds could differ regarding whether plaintiff 's claim was barred by the open and
obvious danger doctrine.
Plaintiff 's complaint sounds in both ordinary negligence and premises liability, and these
claims must be considered in the proper contexts. To the extent that plaintiff seeks recovery on a
theory of premises liability, the application of the open and obvious danger doctrine is proper.
However, to the extent that plaintiff 's alleged claim is based on ordinary negligence, a traditional
negligence analysis applies, and no basis exists for applying the open and obvious danger
doctrine. Even if the tractor is properly considered an "activity or condition on the land," this
circumstance is relevant only in analyzing defendant's liability as owner of the premises and not
in analyzing whether defendant breached a duty otherwise owed to plaintiff. We reverse the
grant of summary disposition for defendant and remand for further proceedings with regard to
both theories of liability.
Reversed and remanded for further proceedings consistent with this opinion. We do not
/s/ Janet T. Neff