On January 7, 2010, the Michigan Court of Appeals issued its unpublished opinion in the case of Brown v Eastman Outdoors, Inc. No. 286844.
Mr. Brown slipped and fell on ice at Eastman's business. He was making deliveries to Eastman at the time. He injured his knee in the fall, but attempted to continue working anyway. Ultimately he had to call another driver to finish his route.
Eastman did not, apparently, dispute the existence of ice at the door Mr. Brown used to make his deliveries. But, as all good Michigan businesses do, it moved for Summary Disposition on Mr. Brown's negligence case, stating that the ice was open and obvious, and so, in spite of any negligence on the part of Eastman, any injury sustained by Mr. Brown was basically his own fault. He is to blame for attempting to do his job, and not guaranteeing his own safety.
But, Mr. Brown argued, even though he saw the ice before he fell, the ice was effectively unavoidable because he was told he had to make deliveries at the door where he sustained his accident. There is indeed a small loophole in the Michigan open and obvious "doctrine" which may preclude dismissal of a case by a judge, if encountering the hazard was "effectively unavoidable". Unfortunately, most Michigan defendant's get around this by having someone say that there was another door to the business. Of course, the other door may be an employee's only entrance, or a trapdoor to access the roof, or may be 4 feet wide when the plaintiff is delivering equipment 5 feet wide. But, generally the bare allegation of another opening in the business does the trick for defendants, and the hazard is held not be be unavoidable. Case dismissed. (By the way, it is interesting to note, that in snow and ice cases it is always held as a matter of law that these "alternative entrances" are clear, dry and hazard-free. How can they know that?)
So it had held by the trial court in Mr. Brown's case. Eastman employees had testified that "plaintiff would have been entitled to make deliveries elsewhere". The trial court held the hazard was not effectively unavoidable because of the option to deliver to another door. Case dismissed.
The Court of Appeals looked at the case and said: Wait a minute. Plaintiff says he was required to make deliveries at this door. Defendant says he wasn't. Isn't that a factual question? Who is right? And who is to determine who is right? And de terming who is right is very important to Mr. Brown's case. The trial court, without seeing or listening to the witnesses determined, as a matter of law, that the Defendant was right. Why must the Defendant be right--and right as a matter of law?
Well, in the olden days, in premises liability cases, such issues were decided by juries who listened to all the evidence and made findings on disputed factual issues. That is there job. It is not the job of a judge. This doctrine of Michigan Law is older than the judicially created Open and Obvious "doctrine".
The dismissal of Mr. Brown's case was reversed, and the case will be returned to the trial court for a trial by jury. At that time, Mr. Brown might win, and he might lose. However, the mere possibility that a jury might allow Mr. Brown to prevail is a possibility tort reformers want to eliminate. They want to take that uncertainty out of the corporate profit calculation.
Thanks to Judges Servitto, Fort Hood and Stephens. They got this one right. It is but a small step, but welcome nonetheless.
