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Court Asks For Special Panel To Answer Question: How Obvious Does A Hazard Have To Be?

August 6, 2014

A case in Michigan’s courts has the potential to change the way the state’s courts rule in slip-and-fall accidents in retail stores.

According to the Court of Appeals opinion in the case, Elena Quinto was shopping at a local CVS. As she walked down an aisle in the store, she was not looking at the floor. She was looking at boxes of cereal on display on the store shelves. When she got to the end of the aisle, she turned a corner, and projecting from the end of the aisle was a low platform that normally is used to support heavy displays like stacked cases of soda. There was nothing on the platform, which even store employees said could have been removed from that spot that day.

She didn’t see the empty platform. And she tripped on it and was injured. She sued, alleging “storekeeper liability.” But CVS argued that the object was an open and obvious condition. The trial court agreed and dismissed the lawsuit.

That’s because even though Michigan common law requires business owners to exercise “reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition on the [premises],” the Michigan Supreme Court has “limited this duty pursuant to the open and obvious doctrine,” which essentially states that if you can see that there is a hazard in front of you, it’s your own fault if you trip on it and hurt yourself. For example, if you go to a business on a day when it has obviously been snowing all day, and you are aware that the snow causes slippery conditions, the store owner is not responsible for your injuries if you slip and fall in the parking lot because you knew you were supposed to exercise care.  The application of the open and obvious doctrine is complex and differs with respect to the location of the slip and fall, the nature of the relationship between the accident victim and the premises owner, and context of the event.

Quinto appealed the trial court’s decision. And the Court of Appeals noted in her case that the Supreme Court has never addressed the responsibility of the shopper and the store in retail settings, where displays are designed specifically to attract your attention away from floor. So if a hazard is on the floor, the Court asks: Should a shopper notice it?

The Court said that store displays are not improper. They are valuable and they “represent marketing skill and desirable commerce.” However, it also recognized that “effective marketing at a retail store necessitates that customers’ attentions be directed away from their feet and toward the displays of merchandise and advertising. Since the customer engagement with the displays results in greater commerce and economic benefit to both store and customer, this alteration of attention is economically desirable and should not be discouraged. However, it also naturally reduces the degree to which the law can expect customer-invitees to constantly attend to the condition of the floor …”

The Court of Appeals said that even though the trial court’s ruling is consistent with Michigan case law, the open and obvious doctrine does not eliminate the duty of storekeepers to keep aisleways safe. Because of that tension, the Court asked the Michigan Supreme Court to convene a special conflict panel to take a closer look at the issue.

But if you or a loved one has been injured in a slip-and-fall, you shouldn’t try to figure out for yourself who is responsible for paying to treat your injuries. It’s important that you contact an experienced attorney as soon as possible. Give us a call at (888)-CALL-SAM for a free, no-obligation consultation.

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