GERALDINE J GLOD V CLINTON RIVER CRUISE CO INC
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STATE OF MICHIGAN
COURT OF APPEALS
GERALDINE J. GLOD,
UNPUBLISHED
January 27, 2009
Plaintiff-Appellant,
v
CLINTON RIVER CRUISE COMPANY, INC.,
No. 279422
Macomb Circuit Court
LC No. 2005-004973-NO
Defendant/Third-Party PlaintiffAppellee,
and
DSI INDUSTRIES, INC., d/b/a DOOR
SOLUTIONS and EVANGELICAL HOMES OF
MICHIGAN, d/b/a PATHWAYS TRANSITION
CARE,
Defendants,
and
JANET YOUNG,
Third-Party Defendant.
Before: Jansen, P.J., and O’Connell and Owens, JJ.
JANSEN, P.J. (concurring).
I fully concur in the result reached by Judge OWENS in this case. I write separately to
point out that, although I am unconvinced that the open and obvious danger doctrine of federal
maritime law is coextensive with the open and obvious danger doctrine of Michigan law in all
respects, the trial court’s application of Michigan’s open and obvious danger doctrine in this case
does not require reversal. For purposes of federal maritime law, “[i]t is well-settled law that
there is no duty to warn of an open and obvious danger that an ordinary prudent person would
take reasonable steps to avoid,” McMellon v United States, 395 F Supp 2d 422, 435 (SD WV,
2005), and “[w]hen there is no duty, there can be no breach of duty and hence no negligence,”
Gemp v United States, 684 F2d 404, 407 (CA 6, 1982). Likewise, under Michigan law, there is
generally no duty to warn of open and obvious dangers that a reasonably prudent person would
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take steps to avoid. Joyce v Rubin, 249 Mich App 231, 238-239; 642 NW2d 360 (2002). “[T]he
‘no duty to warn of open and obvious danger’ rule is a defensive doctrine that attacks the duty
element that a plaintiff must establish in a prima facie negligence case.” Riddle v McLouth Steel
Products Corp, 440 Mich 85, 95-96; 485 NW2d 676 (1992). Accordingly, both the open and
obvious danger doctrine of federal maritime law and the open and obvious danger doctrine of
Michigan law attack the duty element of a plaintiff’s negligence claim.
Judge O’CONNELL appears to suggest that because federal maritime law is based on
common-law principles, there are two applicable duties in cases of maritime premises liability—
a duty to warn and a duty to exercise reasonable care in inspecting or maintaining the ship. I am
unconvinced that the common law imposed on property owners in all cases both the duty to
exercise reasonable care in inspecting or maintaining the premises and the duty to warn. I
acknowledge that some jurisdictions have concluded that both duties existed separately and
independently of one another at common law. See, e.g., Gargano v Azpiri, 110 Conn App 502,
510; 955 A2d 593 (2008) (holding that “[u]nder the common law, a possessor of land owes an
invitee two separate duties: the duty to inspect and maintain the premises to render them
reasonably safe, and the duty to warn of dangers that the invitee could not reasonably be
expected to discover,” and that “pursuant to the common law, a possessor of land has a duty to
maintain the premises in a reasonably safe condition, despite the openness and obviousness of a
defect of which an invitee has knowledge”). But the majority rule “imposes on the owner or
occupant the alternative duty of making the premises reasonably safe or warning of such dangers
as are not known or obvious to the invitee.” 65A CJS, Negligence, § 459, p 148 (emphasis
added). Michigan appears to follow this majority rule. See Marietta v Cliff’s Ridge, Inc, 385
Mich 364, 371; 189 NW2d 208 (1971) (observing that the duty of an owner or occupier of land
“is to remedy or warn of dangers which are known to him or which, in the exercise of reasonable
care, he should have discovered”) (emphasis added).
Similarly, the duty to exercise reasonable care in maintaining or inspecting a ship is not
separate and independent from the duty to warn in maritime premises liability cases. It is true
that “‘the owner of a ship in navigable waters owes to all who are on board for purposes not
inimical to his legitimate interests the duty of exercising reasonable care under the circumstances
of each case.’” Federal Marine Terminals, Inc v Burnside Shipping Co, 394 US 404, 415; 89 S
Ct 1144; 22 L Ed 2d 371 (1969), quoting Kermarec v Compagnie Generale Transatlantique, 358
US 625, 632; 79 S Ct 406; 3 L Ed 2d 550 (1959). But “warning . . . of any hazards on the ship or
with respect to [the ship’s] equipment that are known to the vessel or should be known to it in
the exercise of reasonable care” is part and parcel of the overall duty to exercise reasonable care
under the circumstances. Scindia Steam Navigation Co, Ltd v De Los Santos, 451 US 156, 166167; 101 S Ct 1614; 68 L Ed 2d 1 (1981). After much research, I cannot agree with Judge
O’CONNELL’s contention that there are two separate and independent duties of care required of
vessel owners in maritime premises liability cases. I conclude that a vessel owner’s duty to warn
is included in the overall duty to exercise reasonable care in maintaining or inspecting the ship,
and that the open and obvious danger doctrine of federal maritime law is therefore not limited
only to the duty to warn. Any error in applying Michigan’s open and obvious danger doctrine
rather that the open and obvious danger doctrine of federal maritime law was plainly harmless in
this case.
/s/ Kathleen Jansen
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