Brown v. Taubman LLC

Premises Liability - Michigan Supreme Court to Clarify whether "Black Ice" is Open and Obvious and What Proof Survives Summary Disposition Motion on the "Open and Obivous" Defense

by Carson Tucker
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The Michigan Supreme Court heard oral argument to consider whether a trial court erred in granting summary disposition to a business owner on the basis that “black ice” was open and obvious. Plaintiff was entering a shopping mall in January and slipped on black ice on the walkway of the entrance. Maintenance and security were called and they could not initially find the patch of black ice. Ultimately one of the employees identified the spot of black ice. The plaintiff filed suit and presented the testimony of the employees, including her own testimony that she was looking down as she walked, that the area was poorly lit and underneath a partial overhang that allowed water to drip down. The business owner sought summary disposition on the grounds that the conditions of black ice in the winter was open and obvious. The trial court agreed with the defendant and granted summary disposition. The Court of Appeals (Saad, Whitbeck and Zahra) reversed holding that there was a question of fact regarding whether the black ice was “open and obvious”. At oral argument on the business owner's appeal, the Supreme Court seemed interested in whether “open and obvious” refers to a “condition” on the premises or a “risk in general”. In other words, the fact that there may be black ice in the winter in Michigan is a “risk in general” that one encounters here, and so, if “open and obvious” refers to a “risk in general” then “black ice” may be open and obvious. On the other hand, “open and obvious” might refer to the actual alleged “condition” on the premises. I believe that the latter proposition is the correct one in reviewing open and obvious jurisprudence. This case should clarify the premises owner’s duties with respect to protecting invitees from winter conditions and it should offer helpful analysis pertaining to “black ice” and the “open and obvious” doctrine. Justice Zahra was on the Court of Appeals panel so will not be a factor.

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Carson Tucker
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