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Court of Appeals rejects defense argument that black ice is "open and obvious"

Thomas Janson fell on black ice in the Sajewski Funeral Home parking lot, fracturing his ankle.  The defendants argued that black ice (by definition invisible) was "open and obvious" as a matter of law, therefore eliminating the landowner's duty to remedy it.  The trial judge bought this seemingly paradoxical argument, probably in reliance on a handful of very aggressive appellate opinions written by insurance-oriented judges.  The Court of Appeals reversed on appeal.

A unanimous panel of the Court of Appeals rejected the defense argument, noting that "very nearly the opposite is true:  the 'overriding principle' behind 'many definitions' of black ice is its invisibility, which is 'inherently inconsistent with the open and obvious doctrine.' "  It pointed out that black ice is considered to be an "open and obvious" hazard only in those situations "where other facts present should have alerted a Michigan resident [i.e., someone familiar with Michigan weather] to the likelihood of the hazard."   The Court continued:  [I]n the absence of some other, visible indicia of an otherwise invisible hazard, black ice per se simply cannot be 'open and obvious.' " [emph in orig]

The Court returned the case to the lower court for presentation to a jury.  It will be up to jurors to decide whether the Defendant took reasonable steps to address the black ice in its parking lot.  Despite this victory for Janson and the rejection of an otherwise paradoxical legal result, we can't help but bemoan the fact that Engler-appointed judicial activists have created a legal defense theory that protects commercial property owners who fail to take reasonable steps to eliminate hazardous conditions on the property to which they invite business guests. 

If property is held open for a business purpose, and if there is an acknowledged hazardous condition on the property which the owner has not taken reasonable steps to cure, the question of who should be responsible for any resulting injuries and damages should be an issue of fact----weighing the comparative fault of the owner and the victim.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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