While cleaning my home office in preparation for another year of fun and frolic in the law business, I came upon a Michigan Court of Appeals decision rendered in December of 2010. I put the opinion aside to pursue other matters. I remember the case as it contained one of the most curious sentences I had ever come across in my career.
I have spent a good deal of time on this site commenting on how the principles underlying Michigan premises liability law have been ignored by those who believe that the elimination of responsibility for carelessness is somehow good for business. The insurance industry triumphantly waves a banner with the motto "Open and Obvious" over the denied and dismissed claims of innocent negligence victims (while cheerfully continuing to collect premiums from business policy holders).
The "Open and Obvious" doctrine basically blames the victim for whatever happens to him. Businesss invitees (customers) have an absolute duty to know know of, avoid, and/or deal with all hazards under all circumstances without injuring themselves.
In cases of snow and ice, business owners have no duty to shovel or salt their properties. If a customer, delivery person, postal worker, or supplier slips and falls at a snow covered place of business, Michigan law holds that it is the victim's fault for not have a better sense of balance. Our law says: "You live in Michigan. In winter there is snow. Don't fall, Clumsy."
Michigan law has had a little difficulty in dismissing claims of falls on transparent, clear or "black" ice. Hard for the customer to know about, and avoid what has been admitted to be an invisible condition.
But, no real problem for our Michigan courts. If the desired result is achieved, who cares about the reasoning. So, in dismissing the injured plaintiff's claim in the case of Hay v McKinley & Associates, Court of Appeals Case No. 291594, decided on December 16, 2010, our Michigan Court of Appeals could quote a prior decision which stated, "Black ice, by nature, is difficult to see because it is a thin layer of ice that can be transparent."
In the Hay case, not only was the ice on which Ms. Hay fell transparent, the area where she fell was shaded by a nearby building. Pretty hard for such a condition to be open and obvious, right? Obviously--not. In dismissing the case, the Court of Appeals made the following statement: "But, not being able to see black ice does not mean that the black ice was not an obvious danger." Really?
In Michigan, it is the citizens duty to guarantee his own safety, protecting himself from any and all hazards, visible and invisible, with liberty and justice for not so many.
So, happy 2012 to all. See you in June, when it may be safe to go outside again.
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