In recent weeks there has been a lot of blogging about an incident that occurred in Pennsylvania. It involved a woman, Cathy Cruz Marrero, who tripped into a water fountain while walking and texting in a Retail Mall. One minute she’s texting; the next minute she’s face first into the water. Now she wants to sue. Can she? Should she?
As in most cases, the answer can be complex. Here’s a look at the incident:
Ms. Marrero clearly tripped and fell. Generally speaking slip and fall, or trip and fall, cases fall under premises liability, where the victim of an accident, the plaintiff, claims that the owner or possessor of property caused or failed to fix a dangerous condition that caused an injury.
Slip and fall accidents are common and can happen in a wide variety of places and involve various dangerous conditions. The first thing that is necessary to have a good case is negligence on the part of the defendant. Is there negligence here? For instance, should the owner of the property have put up a railing to prevent such an accident? Is it unreasonable to have such a fountain without a rail in the middle of a heavily trafficked, public thoroughfare where people might be distracted by many things, including storefronts, other pedestrians and, yes, even texting on a cell phone? In other words, should the owner or possessor of the property have known that this might happen and taken reasonable steps to prevent it?
In Pennsylvania, Ms. Marrero may have a good claim. However, in Michigan the grounds to file a claim based on a slip and fall or trip and fall are very narrow, and seem to be shrinking by the day. Based on the Michigan Supreme Court’s decision in Lugo v. Ameritech Co., 464 Mich. 512, (2001), the premises owner is not required to protect a guest from open and obvious dangers. Basically, whether a danger is open and obvious depends on whether it is reasonable to expect an average person with ordinary intelligence to discover the danger on casual inspection.
Now at first glance, this seems like a fair rule. Retail business owners shouldn’t be responsible for reasonable dangers people could easily avoid. And I agree with this presumption. The problem is in Michigan, the Lugo ruling has been extended by various trial and appellate courts to encompass situations where the risk is not so “open and obvious”.
For example, is black ice open and obvious? I would say no – the entire meaning behind “black ice” is it isn’t there to be seen, or at least not “upon casual inspection.” Yet, court after court in the State of Michigan have thrown out solid liability claims involving severely injured people, stating that black ice should have been discovered by the person – or was open and obvious.
What does it mean? It means owners have no duty to plow their parking lots, salt their walkways, or otherwise make their properties safe for public travel. Is this good public policy for the state? What kind of message does this send?
In the case of Ms. Marrero, I believe she may have grounds to sue. But her case is in Pennsylvania, a state with different laws than Michigan or Ohio. We’ll have to follow the story to find out if she does sue and if she does prevail.
The bottom line is that one should always call a good lawyer to find out if a property owner is liable for a slip and fall accident when there is an injury. Yes, it can be embarrassing as Ms. Marrero found out. But it is important to contact an attorney who has experience handling slip and fall cases to discuss your case.