In the September 2017 decision Lemmerhart v. Marciniak, a slip and fall on snow and ice case, the plaintiff argued that the open and obvious defense was inapplicable because he had pleaded ordinary negligence versus premises liability.
In this respect, the Michigan Court of Appeals affirmed that the open and obvious doctrine applies to all conditions that deal with “an allegedly dangerous condition on the land.” The appellate court distinguished the situations by noting that the only way to allege a separate negligence/ordinary tort claim would be to allege the plaintiff's injury was somehow attributed to something unrelated to land such as the defendant having pushed the plaintiff causing him to slip and fall.
This case further affirmed, but the appellate court noted its displeasure by applying open and obvious to the snow and ice conditions. Specifically, the appellate court indicated that the open and obvious defense should not apply to all snow and ice conditions, but it somewhat conceded that that is the current state of the law pursuant to the Michigan Supreme Court, and it must be followed. Thus, dismissal of all the plaintiff's claims was affirmed.
This case is an important reminder of the current state of Michigan premises liability law and the fact that plaintiffs cannot avoid strong defenses by attempting alternative applicable pleading.
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
- Commercial Liability
- Motor Vehicle 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