Slip and fall accidents in Warren due to snow and ice are very common. They can cause horrible injuries and forever change a person’s life. However, under current Michigan law it is very difficult to get compensation in these cases. Property owners like apartment owners, strip mall owners, restaurants, stores and other premises owners are not currently responsible for hazards that are considered “open and obvious” or there to be seen.
However, the law is changing. Landowners who did not properly take care of their premises are now being held responsible in more and more cases. This was recently illustrated in a black ice case that took place in Macomb County.
In Bittner v. Coffee Capers, LLC, (docket no. 358072, unpublished 09/15/2022), the plaintiff went to get coffee with some friends at 8:00 am in late January. It had been raining lightly and the plaintiff believed the temperature was above freezing. The plaintiff slipped and fell on black ice, suffering hip and back injuries. The plaintiff sued the owner of the property for leaving an unreasonably dangerous condition in the parking lot.
According to the plaintiff, the area had a misting rain that made the ground wet. It was about 40 degrees. Mr. Bittner did not see any ice in the parking lot, but he did notice snow in the area. While walking back to his car, he slipped on black ice. He testified he did not see the ice before he fell. The decision did not mention anything about salt or other precautions the defendant took to make the parking safe.
The trial court dismissed the case, holding the black ice that caused the plaintiff to fall was open and obvious, or there to be seen. And because a building owner in general does not owe a duty to the public to prevent injuries for “open and obvious conditions”, the plaintiff did not have a case.
What does Open and Obvious Mean?
Under Michigan, a property owner has duty to protect customers and most visitors from dangerous conditions of the land. However, this duty does not extend to conditions that are considered “open and obvious.” A condition is open and obvious if “an average user with ordinary intelligence would have been able to discovery the danger and the risk present upon casual inspection.” If a condition is open and obvious, and there are no special aspects about the condition that make it unreasonably dangerous, the property owner is not responsible for the dangerous condition. This is the case no matter how severe the injuries are.
There Was Evidence the Black Ice Was Not Open-and-Obvious
Mr. Bittner appealed, and the Michigan Court of Appeals reversed, holding there was a question of fact as to whether the condition was open and obvious. They sent the case back to the Macomb County Circuit Court, thus allowing the plaintiff to move ahead with his lawsuit.
In making this ruling, the Court saw there was evidence that when Mr. Bittner fell, the weather had been above freezing for at least 8 hours, there was misting rain that the ground was wet and neither ice or snow was visible outside the coffee shop. Although it had been below freezing the day before, “the lack of visible ice and snow carry more weight and the record does not address when the last snowfall was.” In addition, a rainy day with above freezing temperatures does not put a reasonable person on notice that there may be black ice present.
Under Michigan law, even black ice is considered open and obvious if there is “indicia of a potentially hazardous condition, including the specific weather conditions” that apprises the plaintiff black ice may be present. For example, if there are piles of snow nearby, then the injured plaintiff should know ice may be near. In this case, there was no such evidence.
Therefore, the black ice was not open and obvious as a matter of law, and Mr. Bittner could move ahead with this personal injury claim.
Slip-and-Fall Law in Michigan is Changing
This decision is a rare one from the Michigan Court of Appeals. Most plaintiffs injured due to a slip-and-fall are not successful in getting a dismissal of their lawsuit reversed. This has especially been true for snow cases and black ice cases.
However, there appears to be shift taking place at both the Michigan Supreme Court and the Court of Appeals. Lately, plaintiffs injured from a slip-and-fall have actually won some cases, allowing them to proceed in front of a jury.
For example, in Estate of Livings v. Sage’s Investment Group, 507 Mich 328 (2021), the Michigan Supreme Court held that an employee who must confront snow and ice for purposes of their employment can proceed if they are injured due to a slip-and-fall. In such situations, the dangerous condition (unplowed snow and ice) is effectively unavoidable when the employee must go through it to get to work.
Because confronting the snow and ice was unavoidable, this is a special aspect that makes even an open and obvious condition – like piles of snow – unreasonably dangerous.
In Bowman v. Walker, docket no. 355561 (published, 02/10/22), the Michigan Court of Appeals extended the reasoning from Estate of Livings to a tenant at an apartment complex.
In this case, the renter slipped and fell while leaving her apartment to get to work. Both exits from the apartment were snow-covered. Therefore, the snow-covered pathways were effectively unavoidable. The plaintiff had to confront the snow to get to her job. The defendant did not present any reasonable alternative that would have allowed Ms. Bowman to avoid the snow. As a result, the open and obvious rule did not apply and the plaintiff was able to move forward with her case.
Warren Michigan Black Ice Lawyers that Work for You
The Warren slip and fall lawyers at the Lee Stenberg Law Firm have handled all types of snow-and-ice and black-ice cases. We have helped out clients recover tens of millions of dollars in compensation. Our team of dedicated trip-and-fall lawyers know the law and how to protect our clients. Most importantly, we know how to win these cases.
One of our attorneys, Debra Garlinghouse, is the chair of the Michigan Association for Justice (MAJ) slip-and-fall amicus team. This means she helps write briefs submitted to the Michigan Supreme Court arguing in favor of giving injured individuals a fair shake in court following a slip-and-call negligence case.
Please call us or a free consultation at 1-800-LEE-FREE (1-800-533-3733). We don’t charge anything until we win your case. And our law firm has been recognized as one of the best slip and fall accident law firms in Michigan.