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142267 - Hoffner v Lanctoe

Charlotte Hoffner,
 
A.    Dennis Cossi
 
Plaintiff-Appellee, Cross-Appellant,
 
and
 
 
Blue Cross and Blue Shield of Michigan,
Plaintiff-Appellee,
 
 
 
 
v
(Appeal from Ct of Appeals
 
 
(Gogebic – Zeleznik, J.)
 
Richard Lanctoe and Lori Lanctoe,
 
Michael K. Pope
 
Defendants-Appellants, Cross-Appellees,
Joseph A. Fink
and
 
 
Pamela Mack, Tiffany K. Aho, and, Mousie, Inc., d/b/a Fitness Xpress,
 
 
 
Defendants.
 

​Plaintiff-Appellee, Cross-Appellant's Application for Leave to Cross-Appeal>>
Plaintiff-Appellee, Cross-Appellant's Brief Opposing Application for Leave to Appeal>>
Plaintiff-Appellee, Cross-Appellant's Reply Brief to Application for Leave to Cross-Appeal>>
Plaintiff-Appellee, Cross-Appellant's Supplemental Brief>>
Defendants-Appellants, Cross-Appellees' Application for Leave to Appeal>>
Defendants-Appellants, Cross-Appellees' Brief Opposing Application for Leave to Cross-Appeal>>

Summary

​Charlotte Hoffner slipped and fell on an icy sidewalk near the only entrance to Fitness Xpress, where she had a membership. The fitness club was located in a commercial building owned by Richard and Lori Lanctoe. Under the lease agreement signed by each tenant, the Lanctoes were responsible for snow removal from the sidewalk and parking lot; Fitness Xpress personnel would occasionally salt the sidewalk in front of the building entrance with salt provided by the Lanctoes.

Hoffner sued the Lanctoes and Fitness Xpress, along with its owners; all the defendants moved to dismiss her claims. The Fitness Xpress defendants argued that they were not liable because they did not have possession and control of the sidewalk where the slip and fall occurred. All the defendants pointed to a release of liability document signed by Hoffner and Fitness Xpress, in which Hoffner agreed to assume and accept any and all risks of injury or damages related to activities at the fitness club. The defendants also argued that Hoffner was barred from pursuing her claim because of the open and obvious danger doctrine, given that the icy condition of the sidewalk was plainly visible. As a general rule, a premises owner is not required to protect an invitee from dangers that are known to the invitee or that are open and obvious. Riddle v McLouth Steel Products Corp, 440 Mich 85 (1992). But liability may be imposed on the premises owner for an open and obvious condition that is “effectively unavoidable.” In this case, the trial court denied the motion for summary disposition, concluding that there were disputed questions of fact that a jury would need to resolve. On the issue of whether the icy hazard was unavoidable, the judge concluded that a jury could find that the condition was “effectively unavoidable,” reasoning that Hoffner joined the club, which had only one entrance, and that she had a right to get value out of her contract.

The defendants appealed to the Court of Appeals. As in the trial court, the Fitness Xpress defendants argued that they had no possession and control over the sidewalk, all defendants cited the release Hoffner had signed, and all defendants contended that the open and obvious doctrine barred Hoffer’s claims. In a published per curiam opinion, the Court of Appeals reversed in part and affirmed in part the trial court’s rulings. The appeals panel agreed with the trial court that the release was ambiguous and that the open and obvious doctrine did not bar Hoffner’s claims. The dangerous condition was effectively unavoidable, the appellate panel reasoned; “[t]here was no alternative route Hoffner could take in order to enter the exercise facility.” The appellate panel did dismiss the claims against the Fitness Xpress defendants, stating that the exercise club could not be held liable because its owners did not have possession and control of the sidewalk where Hoffner slipped and fell. The Lanctoes appeal.