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Grand Rapids, Michigan

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Tim Smith
Tim Smith
Attorney • 231-946-0700

Slip and Falls and the "Open and Obvious" Defense

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Over the last few years Michigan courts have gone out of their way to throw plaintiffs out of court. Even "Black Ice" which by its very nature can’t be seen, was looked at as "Open and Obvious" which allowed a court to dismiss valid claims against business owners who failed to keep their premise safe for those that were invited to shop in their store. A recent decision seems to swing the state’s jurisprudence in favor of the injured once again.

In the matter of Janson v. Sajewski Funeral Home, Inc, Plaintiff Janson slipped on black ice and fractured his right ankle. Defendant Sajewski claimed that because of the cold conditions and light precipitation that this black ice was "open and obvious" thus relieving the defendant of liability under a negligence theory.

Under a negligence cause of action:

a plaintiff must prove: (1) the defendant owed a duty to the plaintiff, (2) the defendant breached that duty, (3) the defendant’s breach caused the plaintiff’s injuries, and (4) the plaintiff suffered damages.”

If a dangerous condition is open and obvious then there can be no duty owed by the defendant because it would be reasonable that a person would simply avoid it. This is a common defense for many business owners.

The court here rules however, that most people in Michigan know that ice can persist even when it is not visually apparent. The defendant’s operator in the Jason case even testified that it seemed slippery where Janson fell even though he had salted the parking lot earlier. Additionally, there was no snow in the area and the roads had already been salted by a truck. Therefore, "in the absence of some other, visible indicia of an otherwise-invisible hazard, black ice per se simply cannot be “open and obvious.” The court reversed the initial ruling that the open and obvious doctrine applied. For those injured this was an important battle that fortunately looks to be a return to a common sense approach to the law by our Court of Appeals.

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  1. Mike Bryant says:
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    The case law in Minnesota seems quite clear that it’s a fact issue. Unfortunately, many cases still see summery judgment motions and like Michigan many get thrown out. Hopefully, like Michigan we will also see less of this in the long run.