It can be difficult to understand what is open and obvious. In Michigan, something small like a piece of fruit on a grocery store floor can be considered open and obvious. On the other hand, something as large as a pallet is not necessarily open and obvious.
The Michigan Court of Appeals recently provided clarity regarding the open and obvious nature of black ice which, by definition, cannot be seen. In Gaeth v TEG Central Park Place, LLC, Docket No. 34154, the appellate court was recently asked to reconsider whether black ice is open and obvious. The appellate court affirmed summary disposition holding black ice was open and obvious, essentially saying, something which cannot be seen is open and obvious.
In Gaeth, a tenant slipped and fell on black ice on the sidewalk at his apartment complex. Because of the parties’ relationship, MCL 554.139(1)(a) required the sidewalk to be fit for its intended use. The court applied the holding in Allison to the instant case. That is, the sidewalk had to be fit to be walked on, and snow and ice coverage did not render the sidewalk unfit.
Still, the tenant argued he could not see the black ice and summary disposition was improper. The tenant testified the temperatures were below freezing and there had been melting conditions the day before.
Considering the Michigan Supreme Court’s order in Janson, the appellate court found those wintry conditions, by themselves, were enough to put an average user of ordinary intelligence on alert that black ice could be present upon casual inspection.
Basically, as Michiganders, if there is a period of high temperatures which cause ice or snow melt followed by freezing temperatures, we should know black ice can form. And because of that knowledge, black ice is open and obvious.
What this means is a condition does not have to be obvious in the literal sense of the word to be considered open and obvious under the law. Sometimes the circumstances are present to alert a reasonable person of the condition without having to actually see it.
Legally speaking, then, that’s how something that cannot be seen is open and obvious.
- Associate
An attorney in Plunkett Cooney's Labor & Employment Law Practice Group, Brian K. Mitzel concentrates his practice primarily on the defense of clients involved in employment liability litigation and regulatory disputes that ...
Add a comment
Subscribe
RSSTopics
- Premises Liability
- Contractor Liability
- Civil Litigation
- Construction Contractors
- Construction Law
- Property Liability
- Contracts
- Litigation Discovery
- Insurance
- Appellate Law
- Residential Liability
- Fire Claims
- General Liability
- Traumatic Brain Injury
- Motor Vehicle Liability
- Commercial Liability
- Retail Liability
- Water Loss Claims
- insurance policy
- Fraud Activity
- Investigations
- Governmental Immunity
- Commercial Real Estate
- Open & Obvious Doctrine
- Snow & Ice Claims
- Marine Liability
- Maritime Law
- Artificial Intelligence
- Design Defect
- Industrial Liability
- Lost Earnings
- Video Recording
- Defamation
- Open & Obvious
- Risk Management
- Liquor Liability
- Business Risk Management
- Professional Liability
- Negligence
- Independent Medical Examinations (IME)
- Sports-liability
- Alternative Dispute Resolution (ADR)
- Auto Liability
- Bankruptcy
- Intoxication
- Judicial Estoppel
- No Fault Liability
- Trucking Liability
- Wrongful Death
- Real Estate
- FDA Regulations
- Food Law
- Foodservice & Hospitality
- Regulatory Law
- Constructive Notice
Recent Updates
- Appellate Court Faults Construction Company for Halting Work for Nonpayment in Breach of Agreed Upon Contract
- New Scope of Ohio Home Construction Suppliers Services Act Takes Effect
- The Skeptical Brain Injury – How Do You Prepare to Defend it?
- Post-Open and Obvious: What Property Owners Can Do to Protect Themselves
- Lessons in Civil Procedure and Civility from a Surprising Source: Barbie
- ‘Open and Obvious’ Falls, Restoring Focus on ‘Notice’ Defense in Michigan Premises Liability Cases
- Insurance Provider’s ‘Satisfaction’ Maketh the Proof of Loss
- The High Seas and High Risks of Lithium Batteries
- Uniform Trade Practices Act Requires Timely Payment of Property Claims
- Michigan Supreme Court Eliminates 'Open and Obvious' Defense in Premises Liability Cases