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Contractor working on Dow Chemical property cannot sue over ice near building

William Osantowski was returning to the Dow building from an errand to his car when he slipped and fell on ice, suffering injury.  He claimed he did not see the ice until his fourth trip between the parked car and his employment location and argued that Dow was negligent in clearing snow and ice from its lot.  Dow argued that it owed no duty to remediate the hazard because the ice was "open and obvious" and had been  easily located by one if its employees when he exited the building after Osantowski's injury.

The Court noted that the Dow employee's ease of finding the ice did not eliminate a question of fact regarding whether the ice was "open and obvious," since the employee was actively searching for an icy condition known to have caused a fall, while the "open and obvious" defense applies only to hazards that are obvious "on casual inspection."  Dow then switched gears and argued that it should not be liable for the "obvious hazard" because there was no proof that it knew of, or should have known of, the existence of the ice in time to remediate the problem.  Finding no evidence to support an implication of knowledge of the condition, the Court agreed with Dow and dismissed Osantowski's claim.  In previous generations, they called this is "Catch 22" or "damned if you do and damned if you don't."


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