‘Alighting’ ends with both feet on the ground, MSC says

A plaintiff can’t collect personal protection benefits from her no-fault insurer for an injury she suffered from a slip-and-fall while getting out of her car, the Michigan Supreme Court ruled on Thursday. The court reversed a jury verdict in the plaintiff’s favor.

The decision in Frazier v. Allstate Insurance Co. puts a limitation on just how far the phrase “arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle” can be interpreted. Mona Lisa Frazier sued her auto insurer for first-party benefits to cover treatment of an injury she suffered when she stepped on a patch of ice while closing her car door after exiting the vehicle.

At issue was whether she suffered the injury while “alighting” (also known as “exiting”) the vehicle. Signed by the four Republican justices only, the memorandum opinion states that Frazier wasn’t alighting the vehicle when she fell because she had essentially completed the process of exiting the car when both feet were on the ground.

Moreover, that the injury must be sustained “while” alighting indicates that “alighting” does not occur in a single moment but occurs as the result of a process. The process begins when a person initiates the descent from a vehicle and is completed when an individual has effectively “descend[ed] from a vehicle” and has “come to rest”—when one has successfully transferred full control of one’s movement from reliance upon the vehicle to one’s body. This is typically accomplished when “both feet are planted firmly on the ground.” [citiation removed]

Based on the foregoing analysis, plaintiff is not entitled to benefits under the no–fault act because her injury did not arise out of the use of a parked vehicle under MCL 500.3106(1). Plaintiff was injured when she slipped and fell on a patch of ice while closing the passenger door of her vehicle. Plaintiff had placed a few personal items in the passenger compartment via the passenger door, stood up, and stepped out of the way of the door when she closed the door and fell. Insofar as she was in contact with the door of the vehicle at the time of her injury, she was clearly in contact with the vehicle itself, not with “equipment” mounted thereon. Therefore, her injury was not “a direct result of physical contact with equipment permanently mounted on the vehicle . . . .” MCL 500.3106(1)(b). Further, before her injury, plaintiff had been standing with both feet planted firmly on the ground outside of the vehicle; she was entirely in control of her body’s movement, and she was in no way reliant upon the vehicle itself. Therefore, she was not in the process of “alighting from” the vehicle. MCL 500.3106(1)(c). At the time of her injury, plaintiff had already alighted.

Justice Marilyn Kelly, joined by Justice Michael F. Cavanagh, dissented, stating that she would have denied leave to hear the case because a reasonable juror could have concluded that Frazier was alighting the vehicle when she fell. Justice Diane M. Hathaway wrote a separate dissent, arguing that the Supreme Court shouldn’t “take any further action in this unique, fact-specific case that should have no precedential value.

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MSC reverses COA on Sajewski, black ice was open and obvious

In our May 24, 2010 issue, Carol Lundberg detailed the blow-by-blow from the oral arguments in Janson v Sajewski Funeral Home, a case in which challenged the blanket application of the “open & obvious” doctrine to black ice injuries.

The Court of Appeals had overturned the circuit court’s summary disposition order, holding that there was no “visible indicia of an otherwise invisible hazard,” thus, the black ice could not be open and obvious.

In a 4-3 order, the Michigan Supreme Court reversed the appeals court :

The Court of Appeals failed to adhere to the governing precedent established in Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 483 (2008), which renders alleged “black ice” conditions open and obvious when there are “indicia of a potentially hazardous condition,” including the “specific weather conditions present at the time of the plaintiff’s fall.” Here, the slip and fall occurred in winter, with temperatures at all times below freezing, snow present around the defendant’s premises, mist and light freezing rain falling earlier in the day, and light snow falling during the period prior to the plaintiff’s fall in the evening. These wintry conditions by their nature would have alerted an average user of ordinary intelligence to discover the danger upon casual inspection. Novotney v Burger King Corp (On Remand), 198 Mich App 470, 475 (1993). Moreover, the alleged condition did not have any special aspect. It was avoidable and not unreasonably dangerous. Joyce v Rubin, 241 Mich App 231, 243 (2002).

Chief Justice Marilyn Kelly dissented:

I would affirm the result reached by the Court of Appeals. Given the facts of this case, summary disposition was improper. Plaintiff raised a genuine issue of material fact regarding the open and obvious doctrine, and the issue should be submitted to a jury.1

Black ice is not open and obvious unless 1) there is evidence that it was visible on casual inspection by the person who fell or 2) other indicia of a potentially hazardous condition were shown to exist.2 In this case, plaintiff presented evidence that when he fell, 1) precipitation was light and had tapered off earlier in the day, 2) the roads leading to defendant’s premises were not icy, 3) defendant’s parking lot appeared not to be icy, 4) plaintiff had not encountered ice in defendant’s parking lot before his fall, and 5) a person employed by defendant who had been in the area saw no ice where plaintiff fell.

On the other hand, defendant presented evidence that 1) there was snow on the grass by the roads leading to defendant’s premises at the time plaintiff fell, 2) temperatures had been below freezing throughout the day, 3) it had rained and misted earlier in the day, and 4) defendant’s parking lot was generally slippery.

The trial court was required to evaluate this evidence in the light most favorable to the plaintiff.3 Given the conflicting evidence, a genuine issue of material fact existed. I agree with the Court of Appeals that summary disposition should not have been granted.

1 See, generally, Bertrand v Alan Ford, Inc, 449 Mich 606, 609-611 (1995).
2 Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 483 (2008).
3 See Wade v Dep’t of Corrections, 439 Mich 158, 162 (1992).

Justices Michael F. Cavanagh and Diane M. Hathaway voted to deny leave.

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