Agent's assistant takes homeowner to court after slipping down stairs

[Nick Gromicko]

A Michigan real estate agent's assistant sued a homeowner after she fell down a staircase while showing a house, but lost in a circuit court's decision. Her case went to the state Court of Appeals after she claimed her job duties posed a special aspect that would have negated a doctrine used in the judgment. Did the appellate court agree? Read on.

The Michigan Court of Appeals didn't buy into a real estate agent assistant's claim that her job duties created a special aspect in a case involving a negligence claim against a homeowner. The appellate court on Dec. 18 affirmed a circuit court's approval of the defendant's motion for summary disposition.

PlaintiffAmy Dyer, a licensed real estate agent's assistant, sued Lansing, Mich. homeowner, defendant Timothy Russell, on a premises liability claim after she fell down the basement stairs while she was showing the house to prospective buyers.

After a circuit court granted Russell's motion for summary disposition, Dyer appealed, claiming the open and obvious doctrine that was used to grant the disposition should not have applied, and that "special aspects" existed in her case.

Although Dyer had claimed the homeowner had a duty to abide by the city's residential building codes, the trial court disagreed. The court also found that the stairs' condition was "open and obvious."

Claim lacks cited cases
The open and obvious doctrine typically eliminates a duty to warn an invitee of a dangerous condition, but Dyer contended that condition didn't apply in her case, where "a statute or ordinance imposes an independent duty upon a landowner." Dyer claimed Lansing, Mich., where the home is located, had a residential building code under which Russell would have had a statutory duty. The appellate court found fault with this argument, however.

"Plaintiff does not cite any cases showing that private owners are responsible under a municipal building code for injuries sustained on their premises due to a danger which would otherwise be classified as open and obvious," the appellate court stated. "Further, it is established that not all building code violations are actionable in a negligence suit."
The appellate court also noted that the open and obvious doctrine is normally applied in cases as a means of limiting the duty of care a party owes. Generally, the court said, a party would be obligated to warn another party of possible dangers if those dangers are "so obvious and apparent that a person may reasonably be expected to discover them and protect himself or herself."

Look before you leap
Furthermore, the appellate court noted that its duty was to determine whether a reasonable person in Dyer's position would have foreseen the danger. Pointing to depositions, the basement stairs of the defendant's house were steep, narrow and lacked walls or handrails. Dyer allegedly admitted the stairway appeared dangerous but "chose to use them anyway." The appellate court stated Dyer's hesitation before using the stairs demonstrates their condition was open and obvious.
Dyer responded by arguing that "special aspects" of the case should cause the court to remove an analysis based on the open and obvious doctrine. The Michigan Supreme Court in previous cases had ruled that situations may be considered an exception to the doctrine if the danger is "effectively unavoidable" and compels an unreasonable risk of harm.

Special aspect assertion falls short
Dyer first contended that her job as licensed assistant to a real estate agent should be considered the special aspect. She argued that her duties made the dangerous stairs unavoidable, but the appellate court found that claim to be outside the scope of a special aspect.
The stairs' steepness and lack of handrails caused a "severe and excessive risk of injury," Dyer claimed, but the appellate court found that the facts presented in the case demonstrated the risk wasn't unusually high, nor was the severity of the potential harm.
Noting such, the appellate court rejected Dyer's claims on appeal and affirmed the trial court's ruling in favor of Russell.

Amy Dyer and Steven Dyer v. Timothy Russell.

To learn more about inspecting stairways visit http://www.nachi.tv/episode16 and www.nachi.org/stairways.htm

[Richard W. Washington]

How much you wanna bet she had heels on?

[Nick Gromicko]

Yep, I often find it hard to get down the stairs in my 5" open-toe platforms

[Mark Nahrgang]

Originally Posted by gromicko

Yep, I often find it hard to get down the stairs in my 5" open-toe platforms

Thanks a lot Nick ...I'm going to have to do a whole lot of thinking to get that mental image replaced.

[Barry Adair]

Originally Posted by mnahrgang

Thanks a lot Nick ...I'm going to have to do a whole lot of thinking to get that mental image replaced.

He shops here Heels

[rcooke]

Originally Posted by badair

He shops here Heels

How do you know of these places ???

...Cookie

[Mark Nahrgang]

Originally Posted by rcooke

How do you know of these places ???

...Cookie

Cookie, Don't know about you, but this is a question that I'd rather not know the answer to.

[rcooke]

Originally Posted by mnahrgang

Cookie, Don't know about you, but this is a question that I'd rather not know the answer to.

I am with you thinking about it is just enough for me too.
...Cookie

[Richard W. Washington]

Originally Posted by badair

He shops here Heels

Barry! I may take a detour around Garland if I'm traveling through Dallas

[Chris D. Duphily]

Originally Posted by mnahrgang

Cookie, Don't know about you, but this is a question that I'd rather not know the answer to.

DITTO!