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Driveway ice should have been noticed by visitor but not by owner.....?

This week the Court of Appeals upheld the dismissal of Nicholas Lawson's lawsuit against Cherylene Norton (and her insurer).    Lawson suffered a severe ankle fracture that required multiple surgeries while walking up Norton's driveway to perform a repair estimate.  He said that he fell on ice that he did not see because it was clear.  He and others testified that the temperature was in the 40s and that it had not snowed in several days.  He also testified that there was no snow or ice on the ground, although he also told the defense attorney, on cross-examination, that pictures taken by the Defendant four days later "accurately depicted" the condition of the driveway and defendant's home:  those pictures showed snow in the area.

The trial court dismissed Lawson's claim.  It held that since Lawson had lived for some time in Michigan, he should have anticipated that there would be "black ice" on the driveway, because the pictures from four days later showed snow on the ground.  The court also held that he had failed to prove that Norton, the 57-year old owner of the property, was on notice of the ice being present.

On appeal, the Court reluctantly reversed the lower court's decision that the ice was "open and obvious," since that ruling necessarily required the Court to weigh the evidence and decide whether the pictures taken days later were more accurate than the witness testimony about the actual day.  Nevertheless, the Court upheld the dismissal, ruling that the lower court was correct in determining that there was inadequate proof of notice to the owner.

The latter holding is ironic, since the judges felt compelled to base this conclusion on the suggestion that "[i]t would not be reasonable to expect Norton [the owner] to inspect every inch of her driveway for black ice."  This is ironic because under the law and the Standard Jury Instructions, the owner of property who invites visitors to the property for a commercial purpose actually owes a duty to investigate and find dangerous conditions.  In theory, the visitor only owes a duty to exercise reasonable care for his or her own safety, including the duty to notice those conditions which are "visible on casual inspection."  Nevertheless, the judges held that if knowledge of the dangerous condition could be imputed to the owner, it would also be necessary to impute knowledge to the visitor.  Sadly, this is an example of inexperienced judicial clerks writing opinions on subjects that they do not fully understand and mis-stating juridical principles that have been established for fifty or more years.  Imputing knowledge of a danger that the owner owes a legal duty to uncover is entirely different than imputing knowledge to a first-time commercially invited visitor who only owes a duty to casually inspect his path of entry.  When these writings become the law of the state through the signature of appellate judges, we call it "judicial activism."

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