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The Beginning of the End of the Open and Obvious Defense for Retail Stores?

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Karl W. Butterer and Mark J. Colon
June 4, 2014

A panel of the Michigan Court of Appeals has welcomed a challenge to the availability of the open and obvious defense to self-service retail stores on the theory that merchandise displays intentionally distract shoppers from hazards.  In the first published appellate decision in over a year discussing the open and obvious defense, the court questioned whether the open and obvious defense applies in the retail store setting, and requested that the Court of Appeals convene a special panel of appellate judges to resolve the issue.

In Quinto v Woodward Detroit CVS, LLC, plaintiff walked down a display aisle as she shopped at the defendant's CVS pharmacy.  A very low platform used to display heavy items like cases of beverages projected from the end of the aisle.  Plaintiff acknowledged that she was “looking at cereal and turned the corner” when she reached the end of the aisle.  Plaintiff tripped over the end cap display.  Plaintiff conceded that she was not looking down at the floor while walking. 

The trial court granted defendant’s motion for summary disposition on the basis that the object on which plaintiff tripped was an open and obvious condition.  The Court of Appeals reluctantly affirmed the trial court relying upon the reasoning in the seminal Michigan Supreme Court case of Lugo v Ameritech Corp, Inc., which broadened the scope of the open and obvious defense for Michigan premises owners fourteen years ago.  Most importantly, the Quinto court ruled that it was bound to follow Kennedy v Great Atlantic & Pacific Tea Co., a Court of Appeals case which held that a store owner’s placement of merchandise and displays to catch the attention of shoppers did not affect the application of the open and obvious defense under Lugo.    

Clearly disagreeing with the Kennedy case, the Quinto court drew a roadmap to challenge it.  The Quinto court stated that in Clark v Kmart Corp., the Michigan Supreme Court held that an “individual shopping in a self-service store is entitled to presume that passageways provided for his use are reasonably safe, and is not under an obligation to see every defect or danger in his pathway.” The Quinto court also stated that in Jaworski v Great Scott Supermarkets, Inc., the Michigan Supreme Court held that self-service store aisles present a fundamentally different circumstance than do other premises, in that the store owner has purposefully displayed merchandise so that customers can inspect the merchandise as they walk in the aisles of the store.  The Quinto court observed that the Michigan Supreme Court never addressed the application of the open and obvious doctrine in the context of the long standing rule that a self-service retail store owes a specific duty to its customers/invitees to provide reasonably safe display aisleways. 

Ultimately, the Quinto court affirmed based on Kennedy v Great A&P Tea Co, but the Quinto majority asked that the Court of Appeals convene a special seven judge panel to resolve the conflict over the application of the open and obvious defense to storekeepers’ conditions inside their stores.  The Court of Appeals will decide whether to convene the special panel to resolve the conflict by May 27, 2014.

What does this mean for retailers?  The Quinto decision has not yet changed the open and obvious doctrine which has protected retailers, along with all other premises owners, for the last fourteen years. However, retailers will almost certainly be exposed to more lawsuits if the appellate courts ultimately accept the Quinto court’s view that a hazardous condition which is otherwise open and obvious to a shopper, may not be open and obvious if the retailer distracts customers with advertisements and product displays.  As a consequence, the cost of liability insurance could increase, and/or retailers may decrease the use of advertisements and displays in their stores.   

Please contact the authors of this article, Karl W. Butterer (mailto:kbutterer@fosterswift.com) and Mark J. Colon (mailto:mcolon@fosterswift.com), with questions or comments.