MSC rules in car wash slip-and-fall case

ice covered carA divided Michigan Supreme Court has ruled that a plaintiff who slipped and fell while using a coin-operated car wash in freezing conditions can’t sue even though equipment designed to keep the wash bays ice-free wasn’t working.

The 4-3 decision reverses the Michigan Court of Appeals in Kachudas v. Invaders Self Auto Wash, Inc. (majority opinion) (concurring opinion).

The COA held that Kachudas’ claim sounded in ordinary negligence, not premises liability, and as such, the trial court erred in applying the open and obvious doctrine to dismiss his claim.

The COA majority opinion in Kachudas set this factual scene:

  • Two of the four wash bays “had ice formation.”
  • The equipment designed to keep the bays ice-free wasn’t working but should have been given the outside temperature.
  • The car wash owner was dealing with the issue when Kachudas fell and broke his wrist.
  • The owner had begun placing orange warning cones in front of the bays but got sidetracked when a friend showed up and began talking to him.
  • The owner went to bay three, where Kachudas fell; it was one of the two that did not have “ice formation” when the owner arrived to inspect his business.
  • The floor looked wet but the owner concluded there was ice because the floor was slippery.
  • The parties agree that the ice Kachudas slipped on formed when he sprayed his own car with water.

On these facts, the COA concluded:

Plaintiff’s allegations, that defendant knew of a malfunctioning heating system, but did not do anything, or did not take sufficient action, to protect the public from the likely effects of the malfunctioning system, and that defendant’s failure to act violated a duty to him and the public, are allegations concerning conduct that sound in negligence.

While we recognize that plaintiff’s complaint also pleads allegations typically found in premises liability claims, it is plain that the complaint challenges defendant’s conduct in the face of knowledge about the malfunctioning heating system. …

[T]he applicability of the open and obvious danger doctrine depends on the theory underlying the negligence action. …

Because the trial court misconstrued the underlying theory of the case as one for premises liability rather than negligence, the trial court erred as a matter of law in applying the open and obvious doctrine.

Last month, the MSC heard oral arguments on whether to grant leave to appeal. In a May 21 order, the Court declined to take the case.

All justices except Diane Marie Hathaway agreed that the trial court correctly classified the case as a premises claim.

Although an injured person may pursue a claim in ordinary negligence for the overt acts of a premises owner on his or her premises … the plaintiff in this case is alleging injury by a condition of the land, and as such, his claim sounds exclusively in premises liability.

But the Court was more closely divided on whether there was a jury issue involved.

Justices Elizabeth A. Weaver, Maura D. Corrigan, Robert P. Young Jr. and Stephen J. Markman said nothing could be more obvious than the notion that water sprayed into freezing air generally produces ice:

[T]he circuit court properly ruled that the alleged hazardous condition was open and obvious, because a reasonably prudent average user of ordinary intelligence spraying water outdoors in a temperature range of 11 to 24 degrees would anticipate the likelihood of freezing and the resulting danger therefrom. Mann v. Shusteric Enterprises, Inc., 470 Mich. 320 (2004); Slaughter v. Blarney Castle Oil Co., 281 Mich. App. 474 (2008).

Justice Michael F. Cavanagh, joined by Chief Justice Marilyn Kelly, conceded the point that the case was a premises claim. However:

I would nonetheless affirm the Court of Appeals result because, on the facts of this case, summary disposition was improper. Plaintiff has raised a genuine issue of material fact regarding the open and obvious doctrine, and the issue should be submitted to a jury.

Cavanagh didn’t get more specific about why the case should go to the jury.

Hathaway had this to say:

I respectfully dissent from the order of this Court which reverses the Court of Appeals and reinstates the Genesee County Circuit Court’s order granting summary disposition to the defendant.

I believe the trial court’s grant of summary disposition was in error and that the Court of Appeals properly reversed that decision. Accordingly, I would affirm the Court of Appeals.

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2 thoughts on “MSC rules in car wash slip-and-fall case

  1. Pingback: The Ins and Outs of Personal Injury Law | Injury Lawyers

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