Case to challenge open and obvious standard

Farmington Hills attorney Richard Bernstein has filed a lawsuit in Macomb County Circuit Court, challenging whether icy sidewalks at his client’s apartment complex were really open and obvious to his client. Even if they were obvious to all the other tenants, Bernstein’s client is blind.

Darrick Calhoun lives at Green Valley Apartments in Clinton Township. In January 2010, he slipped on the ice and was injured. Bernstein argues that the apartment complex owed a duty to his client to keep walkways free of hazards.

The suit seeks damages, but Bernstein also believes this case could serve to set precedent and challenge Michigan’s “Open and Obvious” standard – an objective guideline used by courts in injury cases, established by the Michigan Supreme Court. Under the standard, defendants are typically not held responsible for hazards to the public that can be visible, even if a plaintiff is disabled (in this case, unable to see the hazard).

“This standard established by the Michigan Supreme Court goes against hundreds of years of common law,” said Bernstein in a press release this morning. “It’s time for our courts to start acting fairly on behalf of injured and disabled citizens. Where this has become increasingly dangerous is that in Michigan, the courts are holding blind people to the same standards as those with sight in dangerous situations. This could be the case that finally turns the tide.”

The Michigan Court of Appeals took up that issue in 2003 in an unpublished opinion in Sidorowicz v. Chicken Shack Inc. Citing Lugo v. Ameritech Corp. Inc., the Court noted: “By focusing on the unsafe condition before the plaintiff is injured, the Lugo Court rejected any consideration of special aspects of the plaintiff. Applying this analytical approach to an ordinary pothole, the court reemphasized the focus on the condition and not the plaintiff and stated that an ‘ordinarily prudent’ person would typically be able to see the pothole and avoid it.”

The case has been assigned number 12-1937 to Judge Peter Maceroni.

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