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Court rejects open and obvious defense in fall at car wash

Paul Kachudas fell and broke his wrist at a Genessee County car wash. The owner had discovered that the floor heating system of one bay of the car wash was not operable in the winter weather, but was distracted before he could erect cones to prevent the use of the affected bay.  Kachudas fell in the interim, but when he filed suit, the trial court dismissed the case on the grounds that the hazard of ice in a car wash during winter was "open and obvious."

The appellate court reversed and sent the case back to be decided by the jury, although the three judges did not agree on the basis for their ruling.  One considered that the risk of ice was not obvious on casual inspection, as the "open and obvious" rule requires, while the other two judges based their decision on the fact that Kachudas' attorneys had alleged negligence by the owner.  They held that liability was based primarily on the owner's alleged failure to act promptly to protect patrons, rather than the condition of the building itself.  The "open and obvious" danger defense is applicable only in cases arising out of a premises defect and is not applicable to allegations of failure to exercise reasonable care.

Frankly, this case is another demonstration of why the "open and obvious" danger rule--relieving a landowner of liability for injuries caused by an admittedly dangerous condition--is unwise judicial activism.  For nearly a century, "open and obvious" was only a protection for owners who failed to provide a [redundant] warning about the [obvious] danger:  that made perfect sense.  When the (insurance friendly) Engler majority on Michigan's Supreme Court expanded the doctrine to eliminate any duty to act reasonably to correct premises' defects, they created a semantic and public policy quagmire.

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