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Tim Smith
Tim Smith
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Supreme Court's Latest Victim

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Less than a week after the Michigan Supreme Court victimized Carolyn Jones [see below], Justice Cliff Taylor and his fellow Justices Young, Markman and Corrigan are at it again. On the day before Thanksgiving, they threw out the case of Michele Kaseta despite the fact that her trial Judge in Macomb County Circuit Court and the Michigan Court of Appeals both held that her case had merit and she had a right to her day in court. Why would the Michigan Supreme Court throw Ms. Kaseta’s case out when every other Judge in the state that reviewed her case agreed that she had a viable claim? Read on to find out…..

This case involves a woman who slipped and fell and was injured so we are dealing with Michigan’s premise liability laws. To understand how twisted our Supreme Court’s thinking is as they threw out this case, you need a little background on what the law is here in Michigan.

Michigan, like many states, has required landowners to exercise reasonable care to protect people that they have invited to their property. Landowners are required to protect these invitees from an “unreasonable risk of harm caused by a dangerous condition on the land”. This seems like common sense. If you have a dangerous condition on your property, you have a duty to let others know about it or take steps to make sure that folks that visit won’t be hurt by this condition.

Michigan has also recognized that landowners do not have a duty to protect or warn invitees from dangers that are “open and obvious”. This seems like common sense too. If I have a big pit in the middle of the sidewalk leading up to my home or a downed electrical wire across that same path, I don’t have a duty to warn or protect visitors because anyone can see that there is a big pit there or a downed electrical wire and if you step into the pit or onto the wire, you’re going to get hurt.

Unfortunately, Justices Taylor, Young, Corrigan and Markman have taken this age old law and twisted it to the point that none of us who practice law can recognize what has become of premise liability law here in Michigan. They have twisted it to the point where they even threw out a case brought by a blind man who claimed there was a dangerous condition on a landowner’s property, but Cliff and his fellow Justices said that the condition was “open and obvious” and he should have seen it………

I’m serious. I couldn’t make up stuff this twisted if I tried.

In the present case, Ms. Kaseta was a realtor who was invited by a landowner to come to their home to sign some papers to purchase a piece of property. As she was leaving the house she slipped in the driveway and fell on “black ice”. For years, our courts have held that black ice can’t be open and obvious, because it is ice that isn’t readily visible. It’s ice you can’t really see until you step on it or drive over it and then it’s too late. It’s a patch of ice that by it’s very nature blends right into the surface on which it lays, hidden from view.

The insurance company for the defendant directed it’s attorney to file a motion with the trial court asking it to dismiss the while case. The Macomb County Circuit Court judge denied the motion in what the Michigan Court of Appeals called a “well-reasoned” legal opinion. The Court of Appeals, who upheld the trial court ruling, quoted from the trial court and stated:

Plaintiff testified that when she was walking down defendants’ driveway, she did not notice any ice because it was dark, and defendants did not have their front porch light on. 1 Plaintiff testified that she felt the ice with her hand after she fell, and still could not see it due to the darkness. Plaintiff also testified that she did not notice any salt on the driveway despite defendants’ testimony that they shoveled and salted the driveway prior to plaintiff’s fall several times, and the driveway appeared to be just cement.

The court is satisfied that plaintiff has established a question of fact whether the ice that caused her fall constituted . . . an open and obvious condition. Plaintiff’s testimony indicates that the ice was essentially unnoticeable due to the time of day and lack of lighting. Plaintiff has also submitted an affidavit that attests to the fact that defendants failed to warn her of the potential hazard, contrary to defendants’ testimony otherwise. . . . [P]laintiff testified that although there was snow on the street [*5] and on the lawn, defendants’ driveway was clear. Therefore, plaintiff did not have any reason to believe that the driveway would be slippery since it was clear of snow, and also that it appeared to be cement. Defendants’ reliance upon cases holding that a snow-covered surface presents an open and obvious danger because of the high probability that it may be slippery is therefore misplaced based upon the distinguishing facts of the case at hand. Taking the facts in the light most favorable to plaintiff, the testimony and evidence presented is insufficient to demonstrate that an average person would have discovered the ice upon casual inspection. Consequently, defendants’ motion for summary disposition based upon the open and obvious doctrine should be denied.

The insurance company for the defendant didn’t like the ruling of the trial judge, didn’t like the ruling of the court of appeals and so they appealed it one more time to the Michigan Supreme Court who promptly reversed both lower courts and threw the case out.

It’s becoming a joke the way Justices Taylor, Corrigan, Markman and Young are taking care of those who took care of them during the last election. The big donors to the campaigns of these Justices are reaping the rewards of money well spent. Insurance companies and large corporations like DaimlerChrysler donated 100’s of thousands of dollars to these Justices million dollar campaigns and its paying dividends. Check out just one of the many conflicts of interest that have blossomed at the Supreme Court in my last blog entry. This one is no different.

So despite slipping and falling due to a condition she can’t see, despite the condition being neither open nor obvious, despite the trial judge agreeing with Ms. Kaseta and the Michigan Court of Appeals agreeing with the trial court, Justice Taylor and the others once again deny a woman her day in court.

Remember Michele Kaseta next November when Justice Taylor’s seat is up for election. Remember that you have a power greater than those who wrote the big checks to Cliff’s last campaign and who will write the big checks in the upcoming campaign. You have the right to vote.

I don’t know who is going to run against Cliff in 2008, but take a long hard look at the candidate and remember what Cliff has done to twist Michigan’s legal system to the benefit of large corporate donors and insurance companies. Cast a vote against Cliff and deny him his next term in court the same way he denied Ms. Kaseta her day in court.

For more information on this subject, please refer to the section on Premises Liability / Slip & Fall.