Along with the recent record cold that swept through Michigan last week came a ton of snow fall. In southeast Michigan, within a few days two storms each dropping over 10 inches of snow came through the area. Our Flint office received over 15 inches of snow from one of the storms. Along with this cold and snow came a dreaded hazardous condition that plagues pedestrians and motorists alike – black ice.
In Michigan, just because you sustain an injury from a slip and fall does not mean you are entitled to compensation. Somebody must be at fault, or negligent, for allowing the unreasonably dangerous condition to exist and not taking reasonable precautions to get rid of the dangerous condition. This includes slip and fall accidents and car accidents due to black ice. However, like all Michigan slip and fall cases, claims involving black ice are not easy.
Under Michigan law, landowners owe a duty to customers to exercise reasonable care to protect them from an unreasonable risk of harm caused by a dangerous condition of the land. However, there is an exception to this rule – a doctrine known as the open and obvious rule. Under the open and obvious rule, when the danger is known to the customer, or so obvious a customer should discover it, the landowner does not owe a duty to protect the customer from that danger. In other words, the landowner – such as a grocery store – does not have to protect their customers from dangers that are open and obvious.
The open and obvious rule has been used by insurance companies and judges to eliminate almost all Michigan slip and fall accident cases. The reason is our state’s appellate courts – namely the Michigan Supreme Court – has expanded this doctrine to include situations that are not open and obvious.
One such example is black ice cases.
What is black ice? Black ice is a very transparent, thin layer of ice that forms very quickly when water molecules attach to the cold ground surface. Black ice can occur even when the air temperature is above freezing. Because the ice takes on the color of the underlying surface, it can become very difficult to find black ice making it very dangerous.
Now you would think if you slip and fall on “black ice”, this condition cannot be called “open and obvious” and therefore the landowner must work to get rid of such dangers by salting or clearing the area of ice. But this is not true. Under Michigan law, even black ice has been deemed open and obvious.
In Slaughter v. Blarney Castle Oil Co., 281 Mich App 474, 483; 760 NW2d 287 (2008), the Michigan Court of Appeals held that black ice is “inherently inconsistent with the open and obvious danger doctrine. This sounds reasonable right? How can “black ice” – something that is invisible to the naked eye – be open and obvious. However, the court left the door open, saying black ice can be open and obvious if there is some “evidence that the black ice in question would have been visible on casual inspection before the fall” or some other “indicia of a potentially hazardous condition.”
These last couple of sentences has proved very problematic. On the one hand the Court is making logical sense – black ice is not open and obvious. But the Court then creates a gaping exception, stating if there is any evidence that alerts a person that black ice may be present in the area – such as snow banks in a parking lot – the black ice immediately becomes open and obvious and there is no case.
Our law office receives numerous Michigan snow slip-and-fall calls each week during the winter months. Many of the calls involve horrible injuries with catastrophic financial consequences. Unfortunately, we are not able to help these callers with the legal needs due to the “open and obvious” defense.
Still, each case is different. If you or a family member has been injured from a slip and fall involving snow or ice, I would recommend you call our office at 1-800-LEE-FREE or 1-800-533-3733 and talk to us about what happened. Our experienced team of Michigan snow and ice lawyers may be able to help you out.