I wanted to point out a recent case that came out of the Michigan Court of Appeals. It is a good result for the Plaintiff, but highlights some of the major difficulties for Michigan slip and fall cases.
In Salo v. Kroger Company, docket no. 314514, 4/1/2014, a shopper was injured when he slipped and fell on a trail of grease on the floor of the grocery store. The trial court dismissed his claim, holding Kroger was not responsible for “open and obvious” dangers such as grease on a floor. The Court of Appeals reversed that decision, holding the plaintiff could bring his case before a jury.
The open and obvious danger has been a thorn in plaintiff’s sides for years. The defense is simple. If something is there to be seen and not hidden, and you trip or fall because of this open and readily observable condition, you cannot sue the landowner for compensation. This defense makes sense. However, this defense has been twisted and turned into something completely different by our state’s courts over the years. Now defects that are not open and obvious are considered open and obvious and judges across the state dismiss good cases using this doctrine.
A prime example is black ice cases. Cases involving black ice are routinely dismissed, even though the entire notion of black ice being “open and obvious” doesn’t make logical sense.
The Salo case is an example though were the Court of Appeals got it right. Initially, the trial judge held the grease Mr. Salo was open and obvious and there to be seen. Therefore he took the case away from a jury and dismissed it outright.
The Court of Appeals reversed and reinstated the case. The Court of Appeals found there was sufficient evidence for a jury to conclude the grease strain was barely visible and simply blended into the floor underneath. The law says a condition is open and obvious only if “a reasonable person of average intelligence must be able to discover the hazardous condition upon casual inspection.” The Court found it was reasonable for Mr. Salo not to have discovered the grease stain upon simple casual inspection. It said customers at Kroger “are not obligated to maintain a hyper-vigilant surveillance for subtle clues that a hazard might be lurking in the vicinity.” This makes sense. Shoppers are concentrating on finding items on shelves and watching other people. Although shoppers should be careful about where they step, it is not their responsibility to discovery hazards that are not readily apparent and the store either knew about or should have known about.
So in this case Mr. Salo is able to bring his case to a jury of his peers. It is a good result for him. It does not mean he wins. It simply means he can bring his case forward.
The one negative about the decision is there was a dissenting decision by one of the Court of Appeals judges. If Kroger’s decides to appeal this decision, and it’s likely it will, the Michigan Supreme Court may use this dissent as a way to throw the case out again. I’ll be watching to see if that happens.
