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Over the last few years Michigan courts have gone out of their way to throw plaintiffs out of court. Even “Black Ice” which by its very nature can’t be seen, was looked at as “Open and Obvious” which allowed a court to dismiss valid claims against business owners who failed to keep their premise safe for those that were invited to shop in their store. A recent decision seems to swing the state’s jurisprudence in favor of the injured once again.

In the matter of Janson v. Sajewski Funeral Home, Inc, Plaintiff Janson slipped on black ice and fractured his right ankle. Defendant Sajewski claimed that because of the cold conditions and light precipitation that this black ice was “open and obvious” thus relieving the defendant of liability under a negligence theory.

Under a negligence cause of action:

a plaintiff must prove: (1) the defendant owed a duty to the plaintiff, (2) the defendant breached that duty, (3) the defendant’s breach caused the plaintiff’s injuries, and (4) the plaintiff suffered damages.

If a dangerous condition is open and obvious then there can be no duty owed by the defendant because it would be reasonable that a person would simply avoid it. This is a common defense for many business owners.

The court here rules however, that most people in Michigan know that ice can persist even when it is not visually apparent. The defendant’s operator in the Jason case even testified that it seemed slippery where Janson fell even though he had salted the parking lot earlier. Additionally, there was no snow in the area and the roads had already been salted by a truck. Therefore, “in the absence of some other, visible indicia of an otherwise-invisible hazard, black ice per se simply cannot be “open and obvious.” The court reversed the initial ruling that the open and obvious doctrine applied. For those injured this was an important battle that fortunately looks to be a return to a common sense approach to the law by our Court of Appeals.

         Plaintiff was shopping at a Big Lots store. She walked down an aisle and turned at the end, whereupon she tripped over a wooden pallet that was just around the corner.  The pallet was about three-square feet in size and protruded about three feet into the adjacent aisle, and was on wheels.  After she bumped into the pallet,  she jumped onto the pallet and the pallet then rolled out from under her, causing her to fall to the floor and injure herself.  The trial court dismissed the plaintiff’s premises liability claim against the store, holding that because the danger was open and obvious  no liability can lie. 

          The Plaintiff appealed, and the Court of Appeals affirmed dismissal of her case.  The Court of Appeals disagreed with the plaintiff’s claim that the pallet was hidden or camouflaged, which plaintiff argued would take it out of the open and obvious defense.  The Court of Appeals noted that it was impossible for the pallet not to have been visible to a person approaching the end of the aisle before reaching the pallet itself.   The pallet stuck out three feet, halfway across the intersecting aisle.  The color of the pallet contrasted with the color of the floor.    The only possible way a reasonable person would not notice the pallet is if the person was not exercising ordinary care.   There were no special aspects to the case, which is a requirement to take the case out of the open and obvious danger category.

 What This Means For Plaintiffs:

 Although a premises liability claim can exist if an open and obvious condition has special aspects which make it effectively unavoidable or pose an unreasonably high risk of severe harm despite the open and obvious nature, this exception will not apply just because an object is around the corner and thus partially hidden.

You can view the entire opinion here.

Authored by Barbara A. Assendelft