The Michigan Supreme Court’s denial of leave to appeal in Brown v. Taubman Co., et al., means that a slip-and-fall plaintiff can take her black-ice case to a jury.
The Court of Appeals had ruled that there was conflicting evidence whether the black ice was open and obvious. The MSC denied leave on a 3-3 vote.
Justice Brian K. Zahra sat this one out because he was on the Brown panel.
The black-ice issue needs to be addressed, said Justice Stephen J. Markman in his dissenting opinion.
This case illustrates the ongoing confusion in the law of this state concerning the “open and obvious” status of “black ice,” confusion that this Court has an obligation at some point to dispel. Instead, once again, we fail to afford guidance and direction on this matter, leaving in place conflicting and discordant decisions, and thereby enabling defendants and plaintiffs to each rely upon different precedents in support of their respective positions that “black ice” is or is not “open and obvious.” …
As the highest court of this State — a state in which snow and ice have sometimes been known to accumulate during winter months — it is our responsibility to address the confusing and inconsistent approaches in our caselaw and to clarify the rights and obligations of persons who must regularly confront these conditions.
True enough.
As to how it should be resolved, the black-ice battle lines are drawn in Justice Marilyn Kelly’s concurrence and Markman’s dissent.
Here’s Markman’s take:
The Court of Appeals, citing the existence of conflicting evidence, concluded that reasonable minds could differ regarding whether the so-called “black ice” was open and obvious. I disagree. A lifelong resident of Michigan should be well aware that during winter, when for several days snow has been falling, and when temperatures have been and remain below freezing, ice may form on parking lots. These factors are more than sufficient, in my judgment, to establish the presence of potentially hazardous conditions that would have alerted an average person of ordinary intelligence to discover and react to the “danger” upon casual inspection.
Just a minute, replied Kelly, you appear to be saying that all icy conditions are open and obvious:
The dissent opines that a lifelong resident of Michigan should be aware that black ice forms during the winter. Hence it is open and obvious even when invisible. If this position were adopted by the Court, people in Michigan would be on notice that, in winter, black ice is to be expected and no liability for falling on it exists. This proposition is unprecedented in Michigan law. As our Court of Appeals has astutely observed, black ice, defined as an invisible or nearly invisible coating of ice on a paved surface, is not by its nature open and obvious.
Well, Markman responded, if you just focus on the visibility aspect:
black ice will never be considered “open and obvious,” and property owners, to whom black ice is similarly invisible, will always be held liable for accidents arising from this condition.
Further, contrary to the analysis of Justice KELLY, “[t]he [‘open and obvious’] test is objective, and the inquiry is whether a reasonable person in the plaintiff’s position would have foreseen the danger, not whether the particular plaintiff knew or should have known that the condition was hazardous.” …
That “black ice” may have obtained in this case does not alter the reality that as wintry conditions persist in this state, a reasonable person will increasingly be alerted to the hazardousness of such conditions, and will increasingly be assumed to have encountered conditions fairly characterized as “open and obvious.”
Another black-ice case will find its way to the MSC in the foreseeable future and perhaps the Court will then seize the opportunity to provide needed guidance.
Until then, there’s plenty of a la carte precedent from which to choose.
The Michigan Lawyer 