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Accidents on Snow and Ice

The anti-consumer, pro-insurer bias inherent in the Michigan Supreme Court's majority has been demonstrated again recently, as the Court has addressed the issue of "black ice".  For years, the appellate courts have allowed a motorist who claims to be surprised by "black ice" the opportunity to defend any loss of control on that basis.  If the motorist loses control under winter conditions and crosses the centerline to strike an innocent motorist, insurers routinely claim on the motorist'€™s behalf that the cause was "black ice".  Despite clear legal direction that a motorist must adjust his or her speed to the prevailing weather conditions, the appellate courts have allowed insurers defending claims to offer a defense based on "sudden" and "emergent" exposure to unexpected slippery conditions.


Despite this attitude toward the insurers of motorist defendants, the court has utilized the "open and obvious" defense to premises liability claims to deny the rights of a person who falls on black ice. This majority of Justices has ruled that if a person is a Michigan resident and has lived through at least one Michigan winter, he or she cannot claim to have been surprised by the presence of black ice.  Regardless of the circumstances of the fall, the severity of the injury, the ambient lighting or any other condition that may have contributed to the failure to perceive the ice, it is highly unlikely that the Michigan Supreme Court will allow his or her claim to proceed.  There are a handful of exceptions, usually relating to a landlord's statutory duty to provide a safe rental.


Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
Fax: 231-929-7262