TOV Injury and Safety Blog

"Since you didn't see it, you can't prove it wasn't 'obvious' ".

In Baker v. Tendercare, two judges of the Court of Appeals were unimpressed by the injured plaintiff's claim that a seemingly inocuous crack in the parking lot crumbled beneath her.  They resorted to one of the more absurd holdings we've seen to-date:  since she didn't see the crack before she fell, she can't prove it WASN'T obvious.  Take a moment to think about that one.  Sort of a Catch-22:  if she SAW it, it's "obvious" and she can't sue:  since she DIDN'T see it, she can't prove it wasn't obvious, so--SHE CAN'T SUE.  Yossarian would have appreciated this logic.  Ultimately, the Court held that Tendercare wasn't responsible for her injury because its parking lot was in such bad disrepair, the victim should have considered it dangerous---and stayed home instead of visiting her mother.

More open and obvious

Hope Hanson's claim against Holiday Stores, arising out of her broken elbow, was dismissed because she "could have observed" that a red mat laid on the store floor overlapped a brown mat, creating a trip hazard.  As a result, the Court held that the store had no duty to eliminate the trip hazard.  We're not sure why Michigan retailers or homeowners even bother with premises liability coverage any longer:  the Court has eliminated any duty to take reasonable care of your premises, and we are paying premiums for protection against a phantom liability exposure. 

Has your liability coverage premium come down in the past few years?  The number of actionable cases has been reduced by well over one-half. And the premium dollars have been converted to insurance company profits.

CMU Stadium not a public building?

  Frieda Williams was injured when she stepped in a crack at Perry Shorts stadium on her way to the restroom.  She was at the stadium as a band camp participant.  The trial judge's decision that CMU is immune from suit because the stadium was not a public building and was not held open to the public was affirmed by the Court of Appeals.

Start by proving there was no "wetness-free path" by which you could have left

  We should start hiring comedians to write Michigan judicial opinions.  Only a comedian could write this material with a straight face.  This month, the Court of Appeals held that a woman who fell while leaving a restaurant couldn't sue over her injuries, because she didn't prove that there was no "wetness-free path" she could have  taken to leave.

If you grew up in Michigan, our courts say you must expect black ice in February

In Jennings v. New Attitudes Beauty Salon, two of the three judges disagreed with the trial court and held that a Michigan resident can never be surprised by black ice in February.

Child trespassers and the attractive nuisance rule

After a child died while burrowning into a sand pile on the contractor's premises, the Court had to evaluate the duty owed children by the owner of the property.

Liability for knocking someone off your porch?

  We reported in an earlier blog the distressing case of Kwiatkowski v. Coachlight Estates.  In that case,  the legal action brought by a man who suffered serious injury when knocked off a neighbor's porch was dismissed by the Court of Appeals pursuant to the argument that the small porch he was knocked off was an "open and obvious" danger which relieved the defendant/resident of any duty to open the door carefully.  In a rare victory for an injury victim in Michigan, a majority of the Michigan Supreme Court overturned this decision on appeal, February 8.

Don't bother making your property safe for customers

    In another example of the mis-use of the "open and obvious" doctrine, the Court of Appeals in Cameron v. Big Boy applied the Supreme Court's prior holdings to immunize a restaurant from paying for the damages it caused to a patron who was entering.  The patron entered the front door on January 2 and fell in the commmon foyer on a wet floor tile. The injured customer said he did not notice a wet floor sign, because as he entered, his attention was immediately drawn to a leak in the ceiling above the door.

    The Court conceded that the restaurant owed its customer a duty to maintain the restaurant in a "reasonably safe condition", but held that simply putting a sign in the foyer was more than adequate--since the wet floor was an "open and obvious" hazard.  The patron was free to turn around and leave and should not have been distracted by any other factors:  if he was distracted, a "casual observer" would not have been, according to the Court. 

     Since a reasonable "casual observer" would have been alerted to the "TREACHEROUS" CONDITION,  the Restaurant was under no duty to fix it or alleviate the hazard.  Yes, the Court  actually held that maintaining a "treacherous" condition is consistent with a duty to maintain a "reasonably safe" premise.

Risks of Zetia were not disclosed

On December 21, the New York Times reported that Merck and Schering-Plough have conducted several studies on the risk of liver disease inherent in its cholesterol-lowering Zetia.  According to the Times, the manufacturers have not disclosed these studies, or the risks identified, to either the FDA or to medical researchers, let alone the public.

     Both Canada and Australia require stronger risk warnings on Zetia than does the FDA, and many physicians feel that while the drug can be appropriate for some patients, it should carry a stronger risk warning, due to the enhanced concern of its combination with the normal risks of statin medicinces.  These doctors feel that the heavy advertising of Zetia on television and in other media with only lukewarm risk warnings is a dis-service to patients with liver function testing that suggests greater concern should be focused on liver risk issues.

     Elsewhere in this blog, we have addressed the issue of a manufacturer's duty to disclose drug study results "promptly", the Bush Administration's refusal to enforce this obligation, and the immunity that is conferred upon drug manufacturers by FDA approval--even if it is granted based upon fraudulent or incomplete research.

Status of hospital "companions"

    Michigan's Court of Appeals was recently required to address the status of persons who accompany a patient to the hospital.  In Dobrowa v. Sparrow Hospital, the attorneys for the hospital's insurer had asked the court to dismiss a case arising out of the malfunction of the hospital's electric door, on the grounds that the hospital merely "tolerated" persons who accompany patients.   Sparrow asked the court to rule that these persons are not "invitees" and are only one step above trespassers in terms of the hospital's duty to make the premises safe.

    The trial court and the Court of Appeals rejected this approach, at least with regard to any person who accompanies a patient in order to assist him or her.  The Court ruled that a "mere companion" would not be present for the Hospital's commercial benefit, and therefore the liability rules recently established by the activist conservative majority of the Supreme Court would preclude them from being treated as "invitees".   Thus, the hospital does not owe "mere companions" a duty to investigate and detect hazardous conditions on the premises.  On the other hand, if the patient required the assistance of the companion to drive, dress, or otherwise assist her or him through the hospital experience, the companion served a commercial interest of the hospital and must be treated as an invitee.

    While we applaud the Court of Appeals' recognition that companions providing assistance serve a commercial purpose for a hospital, we think that denying similar protection to members of the public invited to enter public places of business is dreadful public policy.   It is not too much to ask that public buildings be made safe for people invited to enter; persons who legally enter these buildings on reasonable grounds should be owed the same reasonable duty of care, regardless of the particularities of their invitation.  If the visitor is not a trespasser and the building is held open to the public, the owner of the building should owe a reasonable duty to identify and eliminate dangerous conditions.   Any other public policy discourages property owners from taking reasonable steps to prevent injuries and is a step back, two generations, in public safety.

Ice can't cause much harm

        It will stun some injury victims for a second time to learn that one cannot suffer a severe injury as a result of a fall on ice.  The activist majority of "Engler Justices" on Michigan's Supreme Court had previously expanded the concept of "open and obvious" danger to exclude premises liability for hazards which are "readily apparent to a casual observer".  Previously this concept had eliminated a landowner's responsibility to warn invitees of an "apparent" hazard, but the duty to eliminate unreasonable hazards still remained.  The activist group of Republican extremist jurists expanded "open and obvious", though, to eliminate any duty to alleviate the hazard --- unless the Judges concluded that the hazard posed "an unreasonable risk of severe injury".

        The latter questions of "unreasonable risk" and "risk of severe injury" had historically been questions of fact for jurors, and many courts have continued to examine the circumstances of injury to distinguish particular situations from the  Court's new blanket exclusion from duty or liability.  In a recent case, though, the five Republicans on the Supreme Court reversed the trial court and the Court of Appeals and appear to have drawn a black and white rule relating to ice.

        In its holding in Kaseta v. Binkowski, the Republican majority of the Supreme Court adopted the reasoning of the dissenting judge in the Court of Appeals, concluding that there is nothing in the character, location or surrounding conditions pertinent to ice which gives rise to an unreasonable risk of harm.  If the victim knew there was snow within the general area, he or she should have expected to encounter ice and to suffer an injury--[though apparently not a "severe" injury].  Although Ms. Kaseta (the injured woman) never saw ice in the driveway until after she fell [in the dark], she "could have avoided the driveway all together and chosen an alternate path".  In addition, there "was no risk of serious harm because she could not fall an 'extended distance' ".

          To suggest that one cannot suffer serious injury without falling an "extended distance" betrays either incredible ignorance or intentional bias and obtuseness.  OSHA studies, for example, have documented that any fall over 14 feet carries a high risk of fatality.  The jurisprudence is replete with examples of individuals suffering death or serious injury as a result of a fall of only a few feet or from a standing position.  We've encountered several dozen cases of this nature, including fatalities, paralysis and permanently incapacitating head injuries.  We represented the dependants of a local woman who ultimately died as a result of a fall on ice at the TCAPS bus garage, just to list one example.   

        Electing to re-define the law to exclude all liability for falls on ice is the kind of result-oriented activism that is typical of this "Engler majority".  It demonstrates poor public policy--since a landowner is no longer encouraged to eliminate hazardous conditions--and the exercise of raw, unrestrained legislative power by the Justices in an effort to accomplish an illegitimate end.

More on "open and obvious"

        Victoria Engler took her daughter to the MacDonalds in Cadillac for lunch.  On the way in, she fell when she tripped over a gap between the floor tile and a grate in the entryway.  Ms. Engler said she observed the tile/grate area, but did not recognize that the gap was deep enough to constitute a trip hazard.  Her attorneys provided an affidavit from an engineering safety expert to support Engler's claim that the area was unsafe and "not readily visible upon casual inspection," which is the standard for application of the "open and obvious" doctrine.  Under the latter doctrine, the owner of property owes no duty to eliminate an obvious danger or to warn of it.  There are a few limited exceptions to this lack of duty.

        The Court of Appeals rejected Engler's testimony and that of her engineering expert.  It held that photographs of the area "demonstrate that the gap...is clearly visible".  On that basis, the Court held that a reasonable person would have identified the problem "on casual inspection" and foreseen the danger.   While the question of what dangers a reasonable person would recognize "on casual inspection" would appear to be a question of fact for the jury, the Supreme Court has held that "open and obvious" is a question of duty--and therefore a question of law--for the court to decide.  This leaves the Court of Appeals free to decide that a case should be dismissed based on the Judges' determination of what reasonable people would see or avoid. 

        We believe that in a less political atmosphere, this refusal to recognize the factual foundation for the open and obvious defense will (or would) be discarded.  In the meantime, ordinary people's day-to-day interactions with their environment will be gauged by (and second-guessed by) people who have the ability to make careful, studied analyses of the situations that injury victims were duty-bound to make only "casually". 

        There is a perverse and hypocritical aspect to this analysis that is fully divorced from real-world thinking.  Real people do not make in-depth investigations of every step that they take in public surroundings: they window-shop and they examine merchandise on display; they read advertising designed to attract their attention and conduct social and business intercourse while moving.  They react to the unexpected actions of others and at times their actions are influenced by lighting, black ice, unconscious assumptions about universal stair heights, and they make any number of additional reasonable decisions--decisions which architects and engineers have recognized for decades.   

          A simple public policy rejection of spurious premises liability claims would be far more intellectually honest than is a presumption that ordinary "reasonable" people will and do identify through casual inspection every possible hazard they may encounter.

Judicial activism in the premise liability sphere

          The would-be "conservatives" on the Michigan Supreme Court have displayed their judicial activism in yet another context that prejudices consumers and victims for the benefit of the Chamber of Commerce.  This activism was recently emphasized when the Court summarily reversed a decision of the Court of Appeals.

          The common law of negligence starts from the basic assumption that every person must act reasonably toward others.  The Courts then carve out some exceptions from this "duty of reasonable care" where exceptional public policy reasons dictate that a person should owe no duty to others.  Our Supreme Court, since Justice Engler's personal appointees have taken control, has indulged in a prolonged binge of withdrawing rights from consumers.  That assault on civility has also included eliminating a merchant's duty to act reasonably to protect customers from the criminal act of another.

          The Supreme Court's majority, in the MacDonald v. PKT, Inc., case, acknowledged that "ordinarily [a merchant's duty to respond to criminal acts occurring on the premises] would be a question for the factfinder".  For the past several decades, the courts in Michigan had left the determination to that simple test.  In MacDonald, however, the majority went on to hold (in an exercise of activism it did not acknowledge) that "...in cases in which overriding public policy concerns arise, this Court may determine what constitutes reasonable care."  The majority then held that "...as a matter of law, fulfilling the duty to respond requires only that a merchant make reasonable efforts to contact the police."

          In September of 2007 the majority went one step further in Lamar v. Ramada Franchise Systems, Inc.   The Court of Appeals had relied upon the above language to establish the principle that whether the merchant made "reasonable efforts to contact police" was a question for the fact-finder--not a question of law for the Court.  The Supreme Court majority overruled the Court of Appeals and decided the case as a matter of law, despite questions regarding how long the confrontation on Defendant's premises was on-going and how long it took Defendant's employees to respond.  Where the MacDonald case had insisted that a merchant had no duty to anticipate criminal acts, to intervene to stop criminal acts, or even to maintain security personnel where criminal acts might be expected to occur, the majority in Lamar went further, holding that a victim cannot dispute whether the Defendant was unreasonably slow in calling authorities.

           It is not clear to us what public policy could possibly justify immunizing anyone in our society from acting "reasonably" to prevent or respond to criminal or violent behavior.  We would submit that there is an overwhelming public policy in favor of requiring everyone to act reasonably to prevent or minimize crime and violence.  Not only do we disagree with the Court's assessment of "overriding public policy concerns", but we also despise the majority's arrogation of the right to make such "overriding" changes in established law.  These are precisely the kind of decisions which, in other contexts, the judicial "conservatives" have challenged.  It is another evidence of the principle that many so-called "judicial conservatives" are simply activists with a particular agenda--or a particular constituency to protect.

The dangers associated with lead

     While the human body needs to consume tiny amounts of many non-organic minerals, lead is not one.  So far as we know, lead is of no value to the human body and consumption of lead has devastating consequences for humans--particularly during the early stages of brain development, when it has been widely documented to interfere with neurological development.  Furthermore, the neurological impact is permanent and irreversible.

     Lead is the heaviest "stable" element, however, it does break down when it interacts with certain other elements--particularly sulfur.  Because it is resistant to corrosion and discoloration, it has historically been used in many domestic products including kitchen utensils and water pipes.  More recently it has been used to improve the adhesive properties of paint.  Although its use was banned in interior paints in 1971, lead is still used in the United States to bind exterior paints.  Obviously, in China it is widely used in inferior products because it is cheaper than many other stable minerals.

Falls on residential property

   The Michigan Court of Appeals has continued to clarify and define owner liability for dangerous conditions on residential property.  A conservative majority on the Michigan Supreme Court has seriously constricted a property owner's liability for defective or hazardous conditions, by eliminating the landowner's duty to correct any defect that a visitor might have identified and avoided.  It has gone so far as to suggest that black ice, for example, need not be addressed because all Michigan residents should expect it at any time, whether in the dark or under snow, during winter months.

        The Court of Appeals has now decided several cases which clarify that this draconian rule does not apply where the State government has created a duty by landowners to provide residential tenants with reasonably safe common areas.  Thus, while a Wal Mart owes no duty to eliminate a hazard in the handicapped bathroom [that injures a blind woman], and a hotel owes no duty to avoid creating a skating pond on its parking lot [that injures a guest, an employee and a responding EMT], at least residential landlords owe a duty to keep their premises safe.

        It is important to note that the conservative Supreme Court Justices did NOT draw distinctions about what conditions are safe or reasonable:  it completely eliminated the property owner's duty to respond to unsafe conditions if they are theoretically identifiable by a sighted person in the daylight hours (with a handful of exceptions involving extreme hazards).  The Court measures the ability to perceive an unsafe condition by evaluating whether an "objective" ordinary person with no physical or age-related issues would be able to identify the hazard in good light (even if the property owner has not provided standard, safe lighting).

More limitations on premises liability

      The Michigan Supreme Court recently decided that a landowner conducting dangerous activity on his property should owe no duty to persons injured off the premises.  There is no Michigan statute which addresses this question, so the Court was required to analyze and address the issue as a matter of judge-made "common law".  The case involved the death of the wife of a worker who routinely laundered the worker's clothes and was exposed to asbestos fibers as a result.

         The Defendant's property was contaminated by asbestos.  The Plaintiff died after prolonged illness resulting from exposure to her husband's work clothing.  She laundered the clothing for him on a regular basis and no one disputed that her death was a result of contact with asbestos carried home from Defendant's property on her husband's clothing.

         The federal government has previously concluded, after substantial study, that no environmental exposure is more dangerous than asbestos.  It is extremely toxic with clearly demonstrated and substantial detrimental health effects.   Exxon Mobil knew of the "take-home" risk of asbestos as long ago as 1937, however, the majority of our Supreme Court ignored this confirmation of known risk.  Further, by government regulation a property owner is now required to manage and control the "take-home" risk of asbestos, as the health risk to off-site persons such as this housewife have been very clearly documented in prior years.

        As long ago as 1916, employers  were urged by safety publications to launder contaminated work clothing on site.  The Occupational Health and Safety Administration began regulating "take-home" clothing in 1972.  In the 1960s, admonitions about the safety of laundering asbestos-exposed clothing were documented, yet the "industrial apologists" on our Supreme Court not only refused to impose a legal duty; they also engaged in an intellectually superficial examination of the "foreseeability" of injury without a full hearing on the merits.  In other words, they gave lip service to a weighing of social cost and benefit without allowing the issue of negligence to be fully addressed.  After engaging in what it called a "weighing of competing social policy considerations" (i.e., the relative advantages and costs of imposing responsibility) the four right-wing jurists who speak for the Chamber of Commerce on the Michigan Supreme Court concluded that a property owner should owe no duty to a person injured when not on the premises, regardless of any issue of negligence.   One of the three dissenting Justices noted that the majority showed an unseemly interest in the corporate cost of regulating asbestos without giving any consideration to the health cost for individuals.  As Justice Kelly wrote, "it is a sad day" for our citizens when our Supreme Court responds to one of the greatest and most expensive environmental health catastrophes of our time by eliminating corporate responsibility and leaving individual victims to bear the associated cost.  It is also stupid public policy to impose that cost on the workers and their family who cannot control the risk, rather than placing the duty where it belongs:  on the entities with the knowledge, resources, authority and legal duty to impose appropriate controls.

      Oddly, Justice Young provided the deciding fourth vote in the case, despite his firmly-stated conviction that the Court lacked the constitutional basis to even decide the case.  We can only suppose that he was more interested in the (no liability) result than he was interested in the underlying legal analysis.

      Sadly, these Justices are so jaundiced and so deeply biased in favor of their corporate supporters that they simply cannot or will not recognize the costs borne by an injury victim.  They can read a spreadsheet pretty well (especially if it relates to corporate profits or campaign advertising expenditures); they don't do as well with the New Testament.

Snow and ice in Michigan

     Judge William Murphy and Judge Jessica Cooper recently filed an opinion in Kaseta v. Binkowski that for the first time illustrated the hypocrisy of the current holdings addressing black ice as a safety hazard.  In Kaseta, the Plaintiff was invited to the Defendants' home to execute legal papers; on leaving she fell on black ice on the sidewalk and suffered severe injuries.  Judge Bill Whitbeck, an Engler associate, dissented from the majority opinion and would have distinguished between whether "a reasonable person in the Plaintiff's position would foresee the danger" and "whether a particular plaintififf should have known that the condition was hazardous".  Whitbeck would argue that these statements support different standards of inquiry.  On reasonable reflection, that seems to be so much semantic nonsense.

          Whitbeck's position--the insurer's position--is that any Michigan resident should always recognize the potential of slippery conditions in Michigan during winter months, even upon casual inspection, and that therefore landowners owe no duty to correct these conditions.  Setting aside the fact that this is bad law and unfortunate public policy--since it removes any duty to improve hazardous conditions, this theoretical lack of duty is inconsistent with the insurers' position in no fault auto claims. 

        The same judges who hold a pedestrian responsible for failing to anticipate black ice also allow motorists who lose control on black ice and cross the centerline, causing death or serious injuries, to claim the "unexpected" and "unanticipatable" black ice as a "sudden emergency" excuse for crossing the centerline or losing control.  Judges Murphy and Cooper pointed out that the standard and the inquiry in each case is the same:  if a motorist can be surprised by black ice in the winter, then a pedestrian can also.  If one can claim surprise by the condition as a defense, it should also be available as a potential argument for injury victims who did not recognize its presence.

A new low in judicial activism

   In Kwiatkowski v. Coachlight Estates, two judges of the Michigan Court of Appeals reached a new low in judicial activism and result-oriented reasoning.  The Court acknowledged that the Plaintiff was "severely" injured when he approached the trailer park manager's mobile home to meet with the manager.  The manager, Mr. Rupp, attempted to open the door for Mr. Kwiatkowski, accidentally struck Kwiatkowski with the door, and knocked him off the small exterior porch.  The Court acknowledged that the manager could see Mr. Kwiatkowski standing on the porch.

     In a remarkable piece of absurdist reasoning, two judges concluded that the case should be dismissed because there was NO evidence that the Manager was negligent or careless.  These judges suggested that it was not even a question of fact whether the manager opened the door at the wrong time or too forcefully.  They suggested that he bore no "moral blame" [a concept that we believe to be novel in Michigan jurisprudence, since we have never previously seen legal responsibility for negligence dependent upon proof of "moral blame"] and that there was "no degree of certainty" that opening a screen door into someone could cause them harm. 

        While paying lip service to the fundamental axiom that all persons owe a reasonable duty to others not to act in a manner that may cause injury, the two-judge majority concluded that a reasonable juror COULD NOT conclude that the property manager was negligent in causing Mr. Kwiatkowski's unfortunate and severe injuries.  These two judges even suggested that it was the small porch on the mobile home that caused Plaintiff's injuries, not the Manager's actions in opening the door in to him.  This argument turns the famous Palsgraf case on its ear by parsing cause and effect to a degree which even a five year-old would find laughable.

        The Dissent noted that the Court was REQUIRED to accept the Plaintiff's well-pleaded allegations as true when presented with a summary disposition motion, and that it was obligated to leave to the jury the factual determination of whether the Manager's actions were unreasonable and unsafe.  The dissenting judge would have agreed with the Trial Court, which had concluded that it was up to the jury to decide whether the Defendant had violated his common law duty by "slamming a door into someone".

           While persons of conscience can disagree with regard to whether we should have "premises liability" and "liability for negligence", that was not the question presented to these judges, and it is the height of judicial arrogance and activism for them to re-write the laws of our state in order to arrive at an outcome which they personally would prefer.  Our law makes everyone responsible for injuries that he or she has caused through unreasonable conduct, and it is the jury's province--if reasonable minds could differ--to decide what actions are unreasonable or negligent.  Allegedly "slamming a door into someone" standing on your porch is at least arguably negligent and a question for jurors.  Sometimes we are embarrassed by the intellectual dishonesty patent in court decisions:  it is hard for someone who believes in the rule of law to accept a decision such as this one.

         We're sitting here kind of wondering if maybe one of these judges was standing with his head too close to a door when someone "slammed it open".  If this is an honest opinion and it is not the thinking of someone suffering from a head injury, we wonder how this level of critical thinking survived law school.

A story you won't believe

The 2005 McKim case arising out of Ogemaw County is likely to startle anyone who reads it and who is unfamiliar with the prejudices of the current conservative majority of the Supreme Court.

A hotel in West Branch sprayed hot water on its roof in an attempt to remove ice.  In the process, though, the employees created a skating rink out of the north end of the hotel parking lot.  Nothing was done that day or the next to remove or salt the icy condition.  A guest, Vera Dolle, fell on that ice the next day and suffered a serious injury.  Two hotel employees came out to help Vera and the Assistant Manager, one Jane Healey, also slipped and fell on the ice, breaking her ankle.  Now we have two women down on the ice in the lot.

The employees summoned two ambulances, and McKim, a volunteer EMT who arrived with the second ambulance, crossed the parking lot to give aid.  On her way back to her ambulance for equipment she also fell on the ice, striking her head and suffering a closed head injury.

She filed a lawsuit seeking compensation for her injuries and out-of-pocket expenses, however, the trial court dismissed the case, holding that the icy condition was "open and obvious".  Meanwhile, Ms. Dolle (an Ohio resident) had filed suit in Federal Court over her injuries, and discovery in that case disclosed for the first time that the Defendant not only knew about the icy condition, but had actually created it the day before and then neglected to address it.  The hotel had not revealed these facts in the McKim case.

Because the trial court had dismissed the McKim case, McKim appealed to the Court of Appeals, where the panel of reviewing judges disagreed with the trial court.  They held that the circumstances of this case, where the Plaintiff was summoned to a hazardous condition to aide victims of the Hotel's negligence, constituted a "special" situation and that the Defendants could not excuse their negligence by simply alleging an "open and obvious" danger.

Unfortunately, the Republican majority of the Supreme Court reversed, without issuing an opinion.  They merely stated that the condition was "open and obvious" and presented no "special aspects".

We doubt if one Michigan citizen out of ten would agree with this outcome.  It is dreadful public policy to suggest that ambulance attendants who are summoned to assist helpless people injured by another's stupidity, should not be compensated if they also suffer injury as a result of the hazardous condition.  Perhaps the one person in ten who agrees with this decision should lie on the ice in a cold parking lot while Good Samaritans debate whether it is safe to come to their aid:  some of us suffer from a dreadful shortage of empathy in this state.

Accidents on Snow and Ice

          The anti-consumer, pro-insurer bias inherent in the Michigan Supreme Court's majority has been demonstrated again recently, as the Court has addressed the issue of "black ice".  For years, the appellate courts have allowed a motorist who claims to be surprised by "black ice" the opportunity to defend any loss of control on that basis.  If the motorist loses control under winter conditions and crosses the centerline to strike an innocent motorist, insurers routinely claim on the motorist’s behalf that the cause was "black ice".  Despite clear legal direction that a motorist must adjust his or her speed to the prevailing weather conditions, the appellate courts have allowed insurers defending claims to offer a defense based on "sudden" and "emergent" exposure to unexpected slippery conditions.

         Despite this attitude toward the insurers of motorist defendants, the court has utilized the "open and obvious" defense to premises liability claims to deny the rights of a person who falls on black ice. This majority of Justices has ruled that if a person is a Michigan resident and has lived through at least one Michigan winter, he or she cannot claim to have been surprised by the presence of black ice.  Regardless of the circumstances of the fall, the severity of the injury, the ambient lighting or any other condition that may have contributed to the failure to perceive the ice, it is highly unlikely that the Michigan Supreme Court will allow his or her claim to proceed.  There are a handful of exceptions, usually relating to a landlord's statutory duty to provide a safe rental.