Premises opinion draws fire from dissenter

The curious world of OpenandObvious Land (many thanks to John A. Braden for his excellent travelogue) is now a little more curious, according to a dissenting Court of Appeals judge in a recent unpublished case.

In Walker v. Kilpatrick (majority opinion), the plaintiff, a U.S. mail carrier, slipped and fell on defendant’s driveway.

Both plaintiff and her supervisor, said the Walker majority, saw the “alleged black ice.” Plaintiff saw it after she fell. Her supervisor, apparently summoned to the scene after plaintiff fell, said the ice was obvious once it was pointed out to him.

Well, okay, plaintiff lives in Michigan, works outdoors and should have known that because it was winter, slippery hazards are a fact of life and danger lurks everywhere.

But the mail must go through, and there was no alternate route, plaintiff claimed.

Nonsense, said the Walker majority:

[T]he evidence suggests that despite the visible ice present in places on the driveway, there was nothing preventing plaintiff from stepping around the icy spots or stepping off of the driveway onto the snow in order to avoid icy patches.

While doing so may have been mildly inconvenient, public policy requires that people take reasonable care for their own safety. …

Because there were ice-free alternative paths for plaintiff to traverse in order to deliver defendant’s mail, the hazard posed by the patch of ice plaintiff ultimately slipped on was not “effectively unavoidable.” …

Simply because snow presents an open and obvious danger giving rise to a need to watch one’s footing and proceed with some care does not mean that walking upon it is not a safe and viable alternative such that traversing nearby ice is deemed unavoidable.

Hey, wait a minute, said Judge Mark Shapiro in his dissent, I looked at the same photos the majority did:

The photographs offered in evidence show that there were two strips of the driveway shoveled, but unsalted, presumably for the homeowner’s car to access the driveway.

As they approach the house, these two strips are joined at a right angle by a walkway that leads to the porch where the mailbox was located.

The photographs also show that there was a large area of ice covering the “intersection” where the driveway strips and the walkway to the porch meet. There was no way to traverse the walkway to and from the porch other than to traverse this icy area.

The area of visible ice was plainly too large for someone to safely step over without risking a loss of balance, or even having to jump.

The only alternative to walking over this large icy area was to walk through the adjacent grassy area that was completely snow-covered with uneven levels of snow that would interfere with one’s footing and with no way to tell whether there was ice under the snow.

Here’s the real whipsaw in the case, according to Shapiro:

This Court has held “as a matter of law that, by its very nature, a snow-covered surface presents an open and obvious danger because of the high probability that it may be slippery.” Ververis v Hartfield Lanes, 271 Mich App 61, 67; 718 NW2d 382 (2006).

Thus, plaintiff had to either walk on the icy, unsalted walkway, or traverse snow-covered areas which, as a matter of law, themselves “present[ed] an open and obvious danger.” Id
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I fail to see how a path that, as a matter of law “present[s] an open and obvious danger,” can be said to constitute a reasonable alternative to walking on an icy walkway.

Indeed, had plaintiff attempted to walk on the snow-covered areas and slipped and fallen there, defendant could, under our rule of law, argue that the snow presented an open and obvious hazard which plaintiff could have avoided by walking on the shoveled walkway.

Thus, while the uneven snow-covered grassy area represented an alternative path, it did not represent one that afforded a reliable degree of safety.

It seems a curious rule of law that providing a second hazardous path vitiates the duty to take reasonable measures to render one path safe.

But that’s the way it is in OpenandObvious Land.

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HB 5744: ‘open and obvious’ would be comparative negligence issue only

The Michigan House Judiciary Committee will take up the slippery issue of the open-and-obvious doctrine with a Wednesday hearing on HB 5744.

The bill would amend MCL 600.2959 to make the open and obvious doctrine an element an issue of comparative fault only.

Under the open and obvious doctrine, in its current case-law formulation, premises liability cases must be dismissed as a matter of law when “an average person of ordinary intelligence” would discover the complained-of condition “upon casual inspection” and the condition “does not create an unreasonable risk of harm.”

The Michigan Supreme Court, in Lugo v. Ameritech Corp. 464 Mich. 512 (2001), ruled that the doctrine determines whether a premises owner even owes a duty of care.

Under HB 5744, sponsored by Rep. Andrew Kandrevas (D-Southgate):

whether a condition is open and obvious may be considered by the trier of fact only in assessing the degree of comparative fault, if any, and shall not be considered with respect to any other issue of law or fact, including duty.

For a many-a-truth-is-said-in-jest critique of the doctrine, see “Adventures in OpenandObvious Land,” by John A. Braden in the March 2007 Michigan Bar Journal.