If you or a family member has been injured in a fall, you may be thinking of suing the property/premises owner for compensation. However, before you can prevail in a slip and fall case, you must meet certain requirements. One of the most challenging legal issues a plaintiff must overcome is the Michigan “open and obvious” doctrine. In fact, many property/premises owners use this law to escape responsibility for a plaintiff’s injuries. Here is a guide to help you understand how this often-controversial law may affect your case.
Michigan law requires property/premises owners to use “reasonable” care to keep their premises safe and free of potential dangers. In addition, a victim must prove that an owner who fails to repair or remove a hazard is guilty of negligence. However, in some cases, property/premises owners are able to escape responsibility if the unsafe condition is considered “open and obvious.”
The legal standard for applying this law is “whether an average person of ordinary intelligence would have been able to discover the danger and risk upon casual inspection.”
By definition, the open and obvious law focuses on the victim’s ability to recognize the potential danger rather than the owner’s duty to remove the hazard or warn visitors about its inherent risks. Nevertheless, it does not give property/premises owners a free pass when it comes to keeping their property/premises reasonably safe and hazard-free.
The following sections will explain how the open and obvious law is used and what is required to win a slip and fall case in Michigan.
The open and obvious law has been defined and interpreted over the years by a series of Michigan court cases, beginning with Lugo v. Ameritech Corporation in 2001. In this case, a woman filed suit after tripping and falling in a pothole in an Ameritech parking lot. The Supreme Court of Michigan ruled in favor of Ameritech, concluding that potholes are an everyday occurrence that “a reasonably prudent person” should have noticed.
In addition, the Court established two special circumstances wherein a victim may prevail despite the open and obvious nature of the hazard that caused the accident. The opinion explained this as follows:
“The general rule is that a premises possessor is not required to protect an invitee from open and obvious dangers, but, if special aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to protect invitees from that risk.”
Lugo v Ameritech Corp, Inc, 464 Mich 512, 517 (2001)
The two “special aspects” are defined as conditions that are “unreasonably dangerous” and “effectively unavoidable.”
When either one of these elements are present, the property/premises owner may be held responsible for the victim’s injuries even when the hazardous condition is considered open and obvious.
In Lugo v. Ameritech, the Michigan Supreme Court defined an “unreasonably dangerous” condition as something that has a “uniquely high likelihood of harm or severity of harm if the risk is not avoided.”
The Court used a thirty-foot pit in the middle of a parking lot to illustrate this concept. While an average person would definitely notice a hole of this size, falling into it would undoubtedly cause great harm and could even be fatal. Therefore, the owner of the parking lot could not use the open and obvious defense in this type of situation.
The other exception to the open and obvious defense is a hazard that is “effectively unavoidable” even though it would be noticeable to the average person. In these situations, a plaintiff has to prove there were no viable options for avoiding the hazard.
Most of the cases that have come before the courts in Michigan involve entering or exiting a building. However, in almost all of these cases, the courts have ruled against plaintiffs who were injured on their way into a building. For example, a person who encounters an icy sidewalk leading up to the entrance could decide to come back on another day rather than risk falling on the ice.
However, the courts are more likely to hold the property/premises owner responsible when the victim faced an unavoidable hazard on the way out. For instance, suppose the steps or sidewalk in front of the building are icy and there are no other exits. Then, a visitor who is leaving the building would have no way to avoid walking on the ice.
Further, the plaintiff’s case would be strengthened if the ice formed during the time they were inside. Otherwise, the court might decide the person could have avoided the danger by choosing not to enter in the first place. But, if the victim can prove there was no other safe option for leaving the building, they are likely to win compensation.
As Michiganders, we know ice and snow are part of our winter landscape. Therefore, courts frequently rule that people should expect icy conditions and take appropriate precautions. Even black ice, which is typically invisible, has been deemed an open and obvious hazard.
However, there are ways to overcome the open and obvious defense when it comes to ice and snow. Consulting a knowledgeable slip and fall lawyer will help you achieve the most favorable result.
Recommended Reading: Who is Responsible for a Slip and Fall Accident on Ice?
As you can see, the open and obvious doctrine is a complex legal issue. It’s not enough to prove your injuries were caused by a hazard that a property/premises owner failed to correct.
In addition, the rules are constantly being reinterpreted by the courts. Therefore, an experienced slip and fall lawyer with a thorough understanding of the laws will greatly increase your chances of success.
If you were injured in a slip and fall accident on someone else’s property, contact us as soon as possible. The Sam Bernstein Law Firm legal team understands the complexities of slip and fall cases and we will fight to win the compensation you deserve.
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