The Michigan Court of Appeals last week found that a home health aide, who was injured while walking on a dangerous driveway due to snow and ice, may present her case before a jury.
In holding the condition she encountered was “effectively unavoidable”, the Court found there was a genuine issue of material fact as to whether the snow and ice she encountered had special aspects, thereby potentially making the premises owner liable for the injuries the plaintiff sustained.
In Lymon v. Karen Freedland, docket no. 323926, published 3/29/16, a home health aide worker was hired by a family to care for their 84 year-old mother suffering from dementia and Parkinson’s disease. As part of her job, the home health aide, Joyanna Lymon, was expected to come to the home where her patient Gloria Freedland resided to care for her. This care included constant care and Ms. Freedland depended on the plaintiff for her services.
The Freeland home was located on a hill and the driveway was on a long incline. Gaining access to the home was not easy, especially when it snowed. Testimony revealed that the homeowner rarely cleared or salted the driveway area when it was icy. On January 4, 2013, the plaintiff slipped and fell on snow and ice while walking up the driveway to get to work.
As a result of her fall, she severely fractured her tibia and fibula, requiring surgery and months of rehabilitation.
Ms. Lymon sued the homeowner, stating they failed to salt and clear away the snow and ice on the driveway, thereby causing an unreasonably dangerous condition. The defendants in this case sought to dismiss Ms. Lymon’s case, arguing the snow and ice was open and obvious and there were no special circumstances that applied.
Under Michigan law, a premises owner owes a duty to use reasonable care to protect invitees from unreasonable risks of harm posed by dangerous conditions on the owner’s land. However, a landowner’s duty does not extend to defects that are “open and obvious.” Whether a danger is open and obvious depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered the danger upon casual inspection.
If a condition is open and obvious, the landowner does not owe a duty to protect the public from that defect. However, in certain situations, when the open and obvious condition involves a special aspect that is unreasonably dangerous, the landowner can be held responsible. This special aspect can arise when the danger is “effectively unavoidable.”
In the Lymon case, the plaintiff argued that the snow and icy condition she encountered was “effectively unavoidable.” In a unanimous ruling, the Court of Appeals agreed with her.
The Court stated that as a home health aide, Ms. Lymon was compelled to walk up the snow and very icy driveway to get to the front door to care for her patient. As a home health aide, she did not have the option of failing to appear for work. Although there were different routes Ms. Lymon could have taken to get the entrance of the home, each route was dangerous and involved dangerous ice and snow. As a result, the Court found a jury should decide whether or not the defendant was liable for Ms. Lymon’s injuries.
This case marks a rare win for Michigan slip and fall victims. In most slip and fall cases involving snow and ice over the past 15 years, Michigan courts rule in favor of the defendant landowner, holding snow and ice is an open and obvious condition and landowners don’t have a duty to protect people from open and obvious dangers.
In addition, almost all prior decisions over the past 15 years have held that open and obvious conditions do not contain special aspects such that landowners retained a duty to get rid of the hazards associated with snow and ice.
The Lymon case marks one the few decisions that actually holds a landowner accountable for failing to do anything to remove dangerous ice and snow. Most premises owners can get away with failing to shovel or plow their driveways and parking lots, using the open and obvious defense to get the plaintiff’s case dismissed.
The defense has effectively created an incentive for business owners and homeowners to not do anything to make their premises safer. Customers or visitors are basically assuming the risk of not falling on snow or ice.
Although the Lymon decision will have limited application to its case specific fact pattern, it was nice to see an innocent injured party get access to justice.