Activist court opinion in favor of insurer generates blistering dissent
Two of Michigan's most conservative Court of Appeals judges authored an opinion this week that caused a third judge to write a seven-page dissent deriding the majority's judicial activism (our term, not the dissenting judge's). 86-year old Mary Buhalis was delivering second-hand clothes to residents at Trinity Continuing Care Services' "Sanctuary at the Abbey" when she fell and suffered injury. She fell on a patio at the front entrance. She testified that she didn't see any ice when she parked her tricycle on the patio, but that she identified ice beneath her after she fell.
In a typical pro-insurance Henry Saad opinion, two of the judges ruled that since the Trinity maintenance man had cleared and salted a path to the doorway, and since Mrs. Buhalis had strayed from that path in parking her bike, Trinity owed no duty to her as a matter of law. Judge Saad ruled that having lived through "85 winters" in Michigan, Mrs. Buhalis was on notice of the potential of ice on the patio--thereby alleviating any duty by the landowner to make the entryway and patio safe for visitors. Judge Michael Kelly wrote a blistering dissent pointing out that Saad's opinion was re-writing decades of Michigan law.
Judge Kelly pointed out that a landowner owes a duty to alleviate hazards which he is aware of or should be aware of. A visitor, on the other hand, is only responsible for "open and obvious hazards which are visible on casual inspection." Judge Kelly pointed to the longstanding judicial precedent in Michigan that contradicted Saad's holding and ctiticized the suggestion that an invitee becomes the equivalent of a trespasser if he or she strays from a direct path to a public entrance.
Since the injured woman's fall occurred in a location commonly used by invitees, and there were no signs or barriers barring her from the patio, under longstanding Michigan law, the landowner owed a duty to take reasonable steps to make the area reasonably safe. Whether or not it met that duty is a question of fact for the jury, if reasonable people could conclude that the patio ice was not, in fact, "open and obvious on casual inspection." As Judge Kelly succinctly summarized:
"In concluding that the ice involved in this case was open and obvious, the majority--in part--perpetuates the fallacy that a person's general knowledge about the potential for snow and ice is the same as having specific knowledge about the existence of a particular patch of snow and ice...This fallacy, of course, can be misapplied to eliminate the duty to warn or remediate every hazard known to man...Courts rightly assume that a person will easily avoid a hazard that he or she can readily observe. But it is fundamentally wrong to require invitees to avoid hazards that an average person of ordinary intelligence would not notice on casual inspection just because such a person generally understands that such hazards exist."
Thank you, Judge Kelly, for displaying intellectual honesty in response to the overtly political activisim on display by Judges like Judge Saad.