Court confirms that true black ice is not "open and obvious"
It would seem to be beyond dispute that something which is by definition "either invisible or nearly invisible, transparent or nearly transparent" is NOT "open and obvious." Nevertheless, insurance companies, emboldened with their success in defeating Michigan personal injury claims, have pushed most every defense theory to its ultimate absurdity. This happened again in Garrison v. St. Paul Fabric Services, when the Defendant appealed a trial judge's decision that a fall on black ice in a handicapped parking space was not the result of an "open and obvious" defect.
The Plaintiff fell when exiting her vehicle, on a day in the 30s. There was very little snow or ice around the lot and it hadn't snowed in a couple of days. She hadn't seen anyone else struggle or fall, and although she checked the aphalt before she got out of the car, she did not observe the ice until she felt it with her hands after falling. Under the circumstances, the Appellate Court ruled that this case was indistinguishable from Slaughter v. Blarney Castle Oil Co., where the court similarly concluded that the landowner owed a duty to take reasonable steps to eliminate the ice.
In each case, the insurer claimed that the landowner should owe no duty with respect to ice, simply because patrons and invitees should anticipate ice everywhere in Michigan during winter. The court in this case reinforced the Slaughter holding, pointing out that the characteristics of black ice are "inhereingtly inconsistent with the open and obvious doctrine" which relieves a landowner of the duty to eliminate hazards that "would have been visible on casual inspection prior to the fall." The court emphasized that unlike some other recent cases, there were no reasonable "signs that could place an individual on notice of a potentially hazardous condition," due to the lack of precipitation or ground cover. The Court reiterated "[that] plaintiff might have been able to see the ice upon a focused, post-fall examination of the area...is not the applicable standard."
Sadly, while the Court reached the right decision in this extreme example, there remains no justification either in the common law or in public policy for the Engler Majority's decision to eviscerate any landowner duty to eliminate hazards that are acknowledged but potentially "visible on casual inspection." Historically, landowners were excused from warning of an obvious danger, but it remained an issue of comparative fault with regard to who should be responsible for a resulting injury. The expansion of the "open and obvious" defense so that all duty to correct the acknowledged defect is eliminated amounted to the exercise of a legal fiction that allowed activist jurists to decide cases which by law and precedent were the jury's province to evaluate.