It has been some time since I wrote an article concerning the "Open and Obvious" doctrine which was created about 20 years ago by members of the Michigan judiciary, and has since been applied to dismiss hundreds of premises liability cases. In fact, I haven't written anything on the subject since before the Michigan Supreme Court issued its Opinion in the case of Hoffner v Lanctoe in mid-2012 (the hilarious opening to majority opinon written by Chief Justice Robert Young--"Michigan, being above the 42nd parallel of north latitude, is prone to winter.").
Therefore, I was a bit surprised to be the recipient of a hand-written fax sent to me very late in the afternoon of Monday, August 25, 2014. Attached to the note was the Michigan Court of Appeals opinion in the case of Poole v Foodland/Atlas Market, Case No. 312685 (an unpublished decision dated August 12, 2014). The Dissent can be found here. The fax had been sent, apparently, by the the attorney for the Plaintiff in the Poole case, who had seen his client's case dismissed. The Court of Appeals had reversed the decisions of both the District and Circuit courts which had denied the Defendant's Motion for Summary Disposition.
The hand-written note stated what the Court of Appeals had done and the attorney indicated his intent to file a Motion for Reconsideration, due September 2. He hoped to persuade one (if not both) of the Majority's judges to correct their error and join with the Dissent. The note ends: "Thanks!"
No request that I do anything, call him or respond. I don't know this attorney at all.
Though tempted to ingore the communication, I didn't. But, due to a late deposition on Monday afternoon, two Settlement Conferences and a Facilitation on Tuesday, I didn't get a chance to look at the case until Wednesday morning. I reviewed both opinions, formed some opinions of my own, and called the attorney early Wednesday afternoon, asking that he call me. As of this writing, September 1 (Happy Labor Day), I have not received a response.
So, let me share my one insight on the Poole case, which I intend to use in the future.
The Majority in this case, involving a slip and fall on snow or ice, held that such conditions are "Open and Obvious" slippery hazards as a matter of Michigan law. To quote:
"Plaintiff acknowledged that she observed the ice when she entered defendant’s store. She also observed snow when she exited the store; thus, she also would have knowledge of other hazards – like ice – that typically come with snow. Slaughter, 281 Mich App at 479. . Further, this Court has held that “by its very nature, a snow-covered surface presents an open and obvious danger because of the high probability that it may be slippery.” Ververis v Hartfield Lanes, 271Mich App 61, 67; 718 NW2d 382 (2006). Therefore, the snow and ice at the exit of defendant’s store was an open and obvious condition."
Some cases have carved out what has become an increasingly illusory exception to the "Open and Obvious" Doctrine, that being a situation involving an "Effectively Unavoidable Hazard". A case may not be dismissed even in the presence of an open and obvious danger, if the encounter with the hazard was effectively unavoidable.
Ms. Poole was injured when she exited the Foodland store. It was argued that the snow and ice at the door of the store was effectively unavoidable as Ms. Poole was required to use the door to leave the store when her business with the Foodland store was done. This, in fact, had been the decision in the two lower courts.
The Court of Appeals majority rejected the effectively unavoidable argument and reversed the lower courts. And, why was the hazard not effectively unavoidable? To quote again from the opinion: "...as plaintiff testified, she was able to traverse the area when she entered the store".
Though there seemed to be a factual dispute as to whether the conditions at the store entrance were the same when plaintiff left as they were when she arrived, the Majority did not think it important to consider those facts. Disputed facts do get in the way of dismissing cases. However, when necessary, Michigan courts have taken it upon themselves to make factual findings when it can assist in the dismissal of cases. For nostalgia buffs, in the Olden Days, you may remember that fact-finding was what we had juries for.
So, according to the Majority, Ms. Poole had to encounter the same slippery (as a matter of law) snow, or ice, or snow and ice, or snow covered by ice, or ice covered by snow-what the hazard actually was makes no apparent difference-on the way out of as on the way in to the store. The hazard was not effectively unavoidable on the way out because Ms. Poole had walked over the same hazard on the way in without slipping. Therefore, (and here is my insight, by the way) we must conclude:
THE SNOW AND ICE ENCOUNTERED BY MS. POOLE WAS NOT SLIPPERY AS A MATTER OF MICHIGAN LAW. She should not have expected the snow and ice to be slippery on the way out.
So, from now on, if someone sees footprints in the snow, they may conclude, as a matter of Michigan law, that the snow and ice thus traversed, is not slippery. If it is not slippery, it cannot be an Open and Obvious hazard.
Makes about as much sense as most of our judicially created "Open and Obvious" decisions, which have ignored judicial precedent and in my humble opinion also ignored Michigan's Comparative Negligence statute (MCLA 600.2958 and MCLA 600.2059) in the quest to gut Michigan premises liability law.
Until some Michigan "Rule of Law" judges have the courage to do what they have wanted to do for years, that is, rule that Michigan requires its citizens to guarantee their own safety under any and all conditions, we will continue to see cases like Poole that get to the desired result, dismissal, without being able to use the desired reasoning-see previous sentence.
Following the plain language of Michigan's Comparative Negligence would avoid much of the tortured reasoning used to dismiss premises liability cases. However, our Rule of Law judges have done a masterful job of misconstruing the issues so that they can profess allegiance to state law, while at the same time completely ignoring it.
I don't think this is what Poole's attorney had in mind when he sent me the fax. Best of luck to him. He will need that, if not Divine Intervention.