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Slip and Fall Accidents and Violation of Ordinances

February 14, 2011

By: Eric Steinberg

The Michigan Court of Appeals recently decided a case involving a construction code and whether the code itself imposed a legal duty on the defendant land owner to protect the injured person.

In this case, the plaintiff fell down steps leading to the exit of a store owned by the defendant.  The steps did not have a handrail, in violation of the International Building Code.  The IBC is adopted by reference by a Michigan statute, or law, specifically MCL 125.1501.  However, the lack of a handrail by the defendant is not a specific violation of a statute.  There is no statute in Michigan that says a premises owner must have a handrail when there is a staircase.  Michigan law only adopts a code – the IBC – which says the defendant should have a handrail.  As a result, the IBC is only a regulation which promulgates a construction code to help protect people.  It is not the law.

There is an important difference between a statute and a code/regulation in Michigan slip and fall law.  In Michigan, there is something called the open and obvious defense.  This defense says if there is a defect in the land that causes an injury, such as a pothole or a loose handrail, and the defect is open and obvious to a reasonable person upon casual inspection, the defendant is not liable – period.  It doesn’t even matter if the defendant knew about the defect and did absolutely nothing to fix it.  The defendant land owner simply is not liable.

As you can imagine, the “open and obvious defense” is a huge sword for premises owners, and the reason why almost all slip and fall cases in Michigan can no longer be brought.  However, premises owners and their lawyers cannot even raise the open and obvious defense if the case involves a violation of a statute, rather than a code/regulation.

Thus a case with the exact same facts – one that allows the injured person to come forward with a case and receive compensation – and one that doesn’t – completely depends on whether a statute is violated, or just a regulation.

In this case, the Plaintiff said the defendant violated a statutory duty imposed by the Single State Construction Code Act (SSCCA) – MCL 125.1501, which adopts the Internal Building Code at MCL 125.1502(2).  However, the Court disagreed, saying although Michigan law through MCL 125.1501 adopts a variety of codes, including the International Building Code and the SSCCA, “there is no guarantee that the SSCCA actually adopts the specific provision within the International Building Code that governs handrails.”  As a result, the SSCCA doesn’t impose a duty on the defendants to install handrails, and thus the Plaintiff’s case is dismissed.

Does this make any sense?  Basically, the Michigan construction code mandates that handrails be installed next to the staircase involved in this case, the defendant failed to put up handrails, yet the defendant gets off!  Why?  Because the construction code is only incorporated “by reference” into a statute, and is not a statute itself.  Therefore, there is no duty upon the defendant land owner to install the handrails because of the open and obvious nature of falling down steps without handrails.

But really again, does this make any sense?  Isn’t this just a distinction without a difference or a play on words?  If the legislature had intended the SSCCA to be just a code, and not binding in any capacity, why does it incorporate the International Building Code – in the first place?  Probably most importantly, why is the onus completely on the injured person to traverse a staircase with no handrails, rather than on a premises owner who actually controls the safety of the building?

In my opinion, the court got this case dead wrong.  If a code or regulation is implicated by reference in a statute, the legislature must have believed it was important enough to protect the general public.  The SSCCA is intended to protect the public against harm.  Premises owners and land owners who did not abide by the code, such as a guy who fails to put up handrails when he was supposed to, should be subject to liability.

Yet, in this case, the court says no – it doesn’t matter.  To me this is just plain wrong.  Let’s hope the court gets it right in the future.

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