Well, something rare has happened. In a Michigan slip and fall case, the plaintiff was victorious.
In a change of pace from our state court judges, federal district court Judge Avern Cohn ruled favorably for a woman who fell at a Macy’s Department Store, holding the vicious “open and obvious” doctrine did not bar her claim. The case is Knox v. Macy’s Retail Holdings, Inc., case no. 12-13851, E.D. Mich., (issued, 5/28/13).
In the case, Plaintiff Tressie Knox, was shopping at a Macy’s Department Store in Southfield, Michigan. While passing through an aisle in the men’s department, she saw a tear in the rug. After successfully avoiding the tear, she focused her attention on a “sales” sign when she tripped and fell on a price scanner located on the floor. Because of the fall, she injured her shoulder and wrist.
Macy’s Department Store asked the judge to dismiss the case, citing the “open and obvious” defense. Generally, a premises owner (like a mall owner) must exercise reasonable care to protect people (shoppers) from unreasonable risks of harm caused by dangerous conditions on the land. However, this duty to the public does not extend to dangers that are open and obvious.
The open and obvious defense, which has been utilized by premises owners for years to dismiss cases, states if a condition is one that an average person of ordinary intelligence would be able to discover upon casual inspection, the premises owner is not liable for the Plaintiff’s injury.
In this case, Judge Cohn found there were multiple genuine issues of material fact. This means the jury, not the judge should decide the case. In particular, it wasn’t settled the price scanner was there to be seen by Ms. Knox. The scanner was not readily apparent. In addition, Macy had to expect a customers attention might be distracted by looking at clothing racks and other items, therefore the placement of the price scanner was not open and obvious.
What’s interesting about this case is the Plaintiff actually won! Unlike the Michigan state court system, which dismiss almost every premises case it can using the open and obvious defense, federal judges have taken a more nuanced approach. Unlike state court judges, federal judges are actually ruling if there are genuine material issues still in dispute.
This is what the Michigan and federal court rules dictate – looking at the case in the light most favorable to the non-moving party (the Plaintiff), if there are genuine issues of fact, the case cannot be thrown out of court by a judge. The jury must decide the case.
However, Michigan state judges have continuously ignored the court rules. Instead, they have refused to look at the case in the light most favorable to the non-moving party. Instead, they use the “open and obvious” defense to throw out case after case, no matter if there are multiple facts in dispute. In fact, it is estimated that over the past 10 years more than 90% of premises cases involving the open and obvious defense have been victories for premises owners at the state appellate court level.
The Knox case is a victory for customers everywhere. It also shows that unlike many current state judges, federal judges are doing a better job following the court rules and applying the law in a more consistent manner.