Although most slip-and-fall cases involving snow and ice are dead in Michigan, once in awhile the Michigan Court of Appeals throws you for a loop. This happened last month in the case of Macklin v. HJR Holding Company, (unpublished, docket no. 317397, 11/18/14).
In this case, while at work Ms. Macklin noticed the parking lot where she parked looked icy and became real slippery. At the end of her workday, she left the building and slowly walked towards her car. While near the driver’s side door she slipped and fell, sustaining an injury.
The trial court dismissed her case against the parking lot owner, claiming the icy and slippery conditions was both “open and obvious” and not “effectively unavoidable”.
Under the law, premises owners do not have a duty to warn or protect the public from open and obvious dangers. Although initially this defense was created to get rid of trip-and-fall cases involving pot-holes and other easily seen conditions, the open and obvious defense has expanded dramatically in Michigan to include many different situations – most notable snow and ice falls.
The open and obvious defense has made it easy for landowners to avoid responsibility for dangerous conditions they create. Although the defense is bad pubic policy, it remains the law in Michigan.
The defense says if a reasonable person upon casual inspection could have seen the condition, it is open and obvious and the premises owner is not responsible. However, a premises owner remains liable for injuries from open and obvious hazards where the hazard was effectively unavoidable.
According the Michigan Supreme Court, a hazard is effectively unavoidable when “a person, for all practical purposes, must be required or completed to confront a dangerous hazard.” Hoffner v. Lanctoe, 492 Mich 450, 469 (2012). In reality, almost no conditions are effectively unavoidable under Michigan law.
This Hoffner language has eliminated almost all effectively unavoidable cases because trial judges simply say the injured person could have made a different decision to avoid the dangerous condition.
For example, I have heard and read about judges dismissing cases because the injured party could have elected to go a store on a different day, or the injured person could have entered her car through the passenger door, rather than the driver’s door where the dangerous condition was located.
However, in Macklin, the Michigan Court of Appeals ruled that although the snow and ice certainly was “open and obvious”, the plaintiff still could present her case to a jury because the situation was effectively unavoidable.
The facts of the Macklin case are unique. While she was working, it snowed and the conditions of the parking lot grew worse. When she left work, she was compelled to encounter the icy parking lot to leave the defendant’s premises. Although the court did mention the possibility that Ms. Macklin could have used an alternate route to get to her car, this was an open question for the jury to decide.
Although the Macklin case is a good, thoughtful decision by the Michigan Court of Appeals, it is a very rare holding. The number of cases that survive dismissal based on the “effectively unavoidable” exception to the “open and obvious” defense are few and far between.
Still, the citizens of Michigan should rejoice when rulings like this are made. It makes Michigan just a little safer for people like Ms. Macklin as well as you and me.