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Driver who suffered spinal injury in fall from loader has pled a negligence claim; not a premises liability claim

John Perkins was a truck driver who independently contracted to haul wood chips to Mid-Michigan Recycling, LLC.  He was hurt when he attempted to step from a front end loader and fell awkwardly suffering a spinal injury.  Perkins was attempting to locate a key stored in the loader so that he could open the Defendant's entry gate.  Mid-Michigan acknowledged that the lowest, moveable rung on the loader entry ladder was missing and that Perkins had previously requested that it be repaired.

The Defendant argued that the missing ladder step, which created a 48" drop to the ground, was a "condition on the premises" and therefore an open and obvious danger which Perkins was obligated to avoid and which it owed no duty to repair.  Perkins argued that failing to repair the ladder was "ordinary negligence," not a condition on the premises, and therefore comparative fault should be applied:  he should be able to recover that share of his damages caused by the Defendant's negligence.

The trial court granted the Defendant summary disposition, holding that the missing ladder step was a condition on the premises which was apparent to Perkins on casual inspection, obviating any duty by the landowner.  The Court of Appeals reversed, pointing out that the "open and obvious" exception to negligence only applies to conditions that are "fixtures" on the land and not to a moveable vehicle.  The Court also rejected the Defendant's claim that it was excused from negligence by the so-called "simple tool" doctrine.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
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