A recognized expert in Michigan premises liability law believes there is a connection between the decline in the condition of much of Detroit's residential and commercial building stock and the contemporaneous rise of a legal theory created by Michigan's judiciary.
The expert, who spoke to this site on condition of anonymity, is a lawyer who has practiced in Michigan courts for over a generation. He has written extensively and lectured on Michigan premises liability law-that area of Tort law governing the relationships between and responsibilities of property owners and individuals. Our source for this article was born in Detroit, attended high school and law school in the city, and has worked for many years in Detroit Courts. He is also and long time student of various aspects of Detroit's history, and has written and published widely on that subject as well.
The theory, which Michigan courts have named the "Open and Obvious Doctrine", has dominated Michigan premises liability law since 1992. Not based on any statute, this "Doctrine", according to the expert,started out as an obscure and little used part of products liability. For instance, hitting your thumb with a hammer is an obvious risk of using a hammer. If you hurt your thumb with a hammer, it is generally not because your hammer is defective. The analogy to hurting oneself at a negligently maintained business premises (on ice, snow, broken pavement, badly stacked merchandise...the list goes on and on) was never appropriate. However, inventive Michigan Judges and Justices took the little product liability doctrine and made it "800 pound gorilla" of premises liability cases. Over the past 23 years, the focus of an injury case has moved away from the examination of proper maintenance of a business or residence. Now, Michigan courts look exclusively at what the injury victim should have done to guarantee his/her safety.(See Note 1 below) The responsibility of property owners to maintain maintain their businesses or residences has been virtually eliminated-even when they admit fault.
Business and insurance interests have supported the appointment, election and re-election of jurists perceived to support and advance the "Doctrine". The logic behind this was that, if business owners and landlords didn't have to pay money to compensate those injured by their negligence, the resulting savings would increase profits, make money available for reinvestment in the business, allow businesses to hire more workers, and would attract new businesses to Michigan. This same logic has been used by Michigan legislators in such instances as the repeal the motorcycle helmet law (to increase tourism), the expansion of fireworks sales and use (to increase tax revenue and bring in new businesses).
That rather simplistic, superficial logic was imperfect, according to the source.(See note 2 below) It is unclear how much, if any, money business owners and landlords saved on lower insurance premiums. But they did figure out that there was another way to save money. If they weren't held responsible for dangerous conditions on their property, why not decrease, if not eliminate maintenance and repair expenditures? It is hard to persuade someone to invest in upkeep and maintenance if there are no consequences should they fail to do so.
Many Michigan cases applying the "Open and Obvious" state that customers can exercise free choice and choose not to patronize poorly maintained businesses. And so they have. Many of the good, free citizens of Detroit have chosen to leave the city entirely. Which accelerates the decline of business properties in the city. And the businesses close.
Those who blame the current state of things in Detroit on a lack of responsibility on the part of its citizens and businesspeople should consider this: it is hard to be responsible when the courts sanction irresponsibility.
Is the "Open and Obvious Doctrine" the sole reason for Detroit's decay? Probably not.(See note 3 below) But the theory is as sound and the evidence is as compelling as anything this reporter has seen in Michigan election ads or heard on Cable TV News channels in the last 23 years.
*Apologies to Andy Borowitz.
Note 1. In recent years, Michigan Courts have dismissed the claim of a police officer falling on ice while responding to a domestic disturbance call. (In that case, the officer was called to the house because of an argument between father and son regarding the son's refusal to remove the very snow and ice which later caused the officer's fall.) It is unclear as to what the officer was supposed to do in the situation. In another case, a blind man's injury case was dismissed as the Court held that the average customer of the restaurant owner was not blind, and a sighted customer could have seen clear water on the lavatory floor. If the sighted might see the condition, the blind man then (I don't know how to coherently end this sentence). In a recent case, an electrical contractor hired to repair electric compressors at a hospital fell on ice. The court dismissed his injury case, stating he could have come and done the work another day, even though there was absolutely no evidence he actually could have done so. The court refused to consider what effect the worker's refusal to do the job on that day would have had on his continued employment, or the health of the hospital patients suffering without electricity. Michigan courts love to tell injury victims they could have come to the business another day. However, when the case of a woman injured in a fall in an admittedly snowy funeral home's parking lot was dismissed, one would have to admit the victim did not have too many options. One can hardly blame the deceased in that case for having the poor taste to die before the spring thaw.
Note 2. It is unknown how many motorcycling groups book conventions in Michigan now that the helmet law has been revoked. However, deaths and severe injuries in motorcycle accidents have increased due to the absence of this protective device. While increased sales of fireworks increases sales tax revenue, the number of fires and injuries occurring due to use/misuse of fireworks have also increased.
Note 3. Certainly there are other causes. Indeed the lack of a motorcycle helmet in and of itself does not cause death or injury. There first has to be an accident. And, fireworks don't cause injuries or fires unless someone lights them. However, the increase, if not acceleration in Detroit's urban decay over the last 23 years cannot be denied. Many an "authoritative" internet article has been based on much weaker evidence.