Bette Ball can't sue: she used the wrong door or should have invited herself to spend the night
The Court of Appeals recently applied the Engler Majority's analysis of slip and fall claims to dismiss a claim brought by a lifelong resident of Michigan who fell and was "seriously" injured while leaving a friend's home. The friend had a white ceramic tile porch that was covered with a thin dusting of recent snow. Ball had entered safely, exercising great care, but when she attempted to leave she slipped and fell. As she was lying on the porch, she found a small area of ice that she had not noticed in the area where she had stepped.
The Court held that the ice was "open and obvious," not because Ball should have seen it, but rather because Ball had lived in Michigan for many winters, there was snow on the surrounding ground, it was "very cold," and therefore Ball should have known it was likely to be there. The Court also pointed out that Ball might have left by a different exit and wasn't trapped at her friend's home. (Next time you don't want to leave a yawning friend's house on some winter evening, just inform the friend that you are planning to stay overnight because the risk of leaving is "open and obvious" during winter months: see if the friend is still a friend by the time the next winter rolls around.)
Since Ball didn't did not prove that she was required to leave by this exit and since she knew the porch could be slippery, the landowner owed no duty to make it reasonably safe even if the landowner knew it was there and constituted a hazard. By any analysis, this is judicial activism. A hidden danger that a person encounters suffering injury should be cause for compensation, if the person who is responsible for the condition "knew or should have known" it was present and the victim was acting responsibly for her own safety. A jury should determine the degree of fault to assign each of the actors. To avoid this inquiry by calling the danger "open and obvious" is nothing more than a legal fiction: judicial activism intended to relieve the claims burden on (highly profitable) insurers and the Chamber of Commerce, in return for substantial judicial election campaign support.
Our favorite argument from the Ball opinion comes at the end: Ball's claim is being rejected because she knowingly exposed herself to an "open and obvious" danger, despite the fact that "there also was not a high likelihood of severe harm from slipping and falling on an icy porch...[as it] did not create an unreasonably dangerous condition". The condition was dangerous enough that she is thrown out of court for voluntarily exposing herself to it; but not dangerous enough to obligate someone responsible for it to clean it up. This defense theory is simply a negation of the common law by judicial fiat: next time you see a member of the Chamber of Commerce, congratulate him for moving the entire risk of hazardous conditions to the shoulders of injury victims and removing it from the shoulders of landowners who might have corrected the hazard before someone was hurt.