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Court affirms trial judge's decision that intoxication defense is a question of fact for jury in black ice case

Matthew Cole sued the Henry Ford Health System after a fall on black ice.  Cole was on the property to repair an elevator.  The defendant's insurance attorneys argued that Cole's case should be summarily dismissed because the black ice was "open and obvious" and because Cole had a blood alcohol, several hours after the incident, of 0.14.  Henry Ford argued that Cole's blood alcohol constituted a complete defense to any injury claim because his intoxication must have been "50% or more the cause of the injury."

The trial judge agreed that the blood alcohol created a presumption that Cole was more than fifty percent the cause of his injury, but noted that there was other evidence suggesting that Cole's blood alcohol level did not impair his conduct or cause the injury.  Under the circumstances the trial judge ruled that a jury must hear the evidence and decide whether Cole was more than fifty percent at fault.  The Court of Appeals agreed.

With regard to the "open and obvious" defense to the black ice hazard, the Court noted that there had been no precipitation for two days and that temperatures remained below freezing.  Different witnesses offered differing assessments of the visibility of the ice.  As with the alcohol consumption issue, the diverging evidence created a question of fact for the jury with respect to whether or not the black ice was "visible on casual inspection."

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