The premise of Open & Obvious requires that the condition be open and obvious upon casual inspection.

In Watts v Michigan Multi-King, __ Mich App __ (#293185, 12/14/2010) the court of appeals rejected defendant’s assertion that a wet floor in a restaurant is a common everyday hazard of which customers are expected to be aware, making it always open and obvious regardless of its visibility.  In Watts the plaintiff introduced evidence that this was not the case.  Although the parties essentially agreed that the floor had been mopped shortly before plaintiff’s fall and the report from the store indicated that there were “wet floor” signs present, plaintiff testified that there were no signs present. Plaintiff also testified that both before and after her fall, the tile did not look shiny or wet and nothing else about its appearance appeared out of the ordinary.  Summary disposition was thereby improperly granted.  The premise of open and obvious requires that the hazard would be “obvious” upon “casual inspection.” O’Donnell v Garasic, 259 Mich App 569 (2003).

A landowner has a duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition on the land. Lugo v Ameritech Corp, Inc, 464 Mich 512 (2001). However, a premises possessor is not generally required to protect an invitee from open and obvious dangers, unless special aspects of a condition make even an open and obvious risk unreasonably dangerous, in which case the possessor must take reasonable steps to protect invitees from harm. Id. The question of whether a condition is “open and obvious” depends on whether “it is reasonable to expect an average person of ordinary intelligence to discover the danger upon casual inspection.” O’Donnell, supra. The test is objective; “the inquiry is whether a reasonable person in the plaintiff's position” would have done so. Slaughter v Blarney Castle Oil Co, 281 Mich App 474 (2008). When deciding a summary disposition motion based on the open and obvious danger doctrine, “it is important for courts . . . to focus on the objective nature of the condition of the premises at issue, not on the subjective degree of care used by the plaintiff.” Lugo, 464 Mich at 523-524. If genuine issues of material fact exist regarding the condition of the premises and whether the hazard was open and obvious, summary disposition is inappropriate. See Bragan v Symanzik, 263 Mich App 324 (2004).