Elderly man who fell because of exposed re-bar in crumbled concrete cannot sue strip mall
Ray Meola is an 85-year old who has some trouble walking. He visited the Chesterfield Development Company's strip mall in Macomb County and entered one of the retail stores. When he emerged, he fell while stepping from the sidewalk curb to the parking lot. When he examined where he fell, he realized that the sole of his shoe slipped on exposed re-bar where the concrete curb was crumbling.
Meola had suffered a fractured rib and wrist injuries and filed an action against the strip mall owners, arguing that the crumbling concrete and exposed re-bar where unreasonable hazards that Chesterfield should have identified and repaired. The trial judge granted summary disposition to the strip mall and the Court of Appeals upheld this outcome in an opinion that would offend most readers.
The Court held that since the crumbling concrete was "visible on casual inspection" the strip mall owed no duty to repair it. It held that even though the exposed re-bar was not visible on casual inspection, there was no duty to address it, as it was part of the same "open and obvious" danger. The Court held that even if Meola or other patrons were distracted by traffic in the parking lot, the strip mall owner still owed no duty to repair or warn of the defective concrete and exposed re-bar. It also held that since the crumbling hazard only resulted in a "6 to 12 inch drop," it posed no special hazard and would not have caused serious injuries to a person who was not old and "in declining health" like Meola. After all, according to Michigan public policy as defined by Republicans, commercial premises need be safe only for young, vigorous people in the prime of life--not for the aged or infirm.
And besides, whoever heard of anyone suffering severe injury simply by falling? Apparently our Court of Appeals hasn't, because it ruled that "A 'typical person' would not be expected to suffer such injuries from falling off a curb."
Michigan law once protected the aged and infirm. Owners of commercial property owed a duty to keep their property reasonably safe, and owner/possessors were responsible for injuries caused by a recognized hazard, even if a "thin-skulled" or susceptible victim suffered injuries more severe than the average visitor would have suffered. If a hazard was "obvious," the jury was instructed that if the patron reasonably should have avoided injury, the victim's compensation was reduced by his share of fault (and wiped out entirely if he was more than fifty percent at fault). Today, unfortunately, Republican public policy deems it more important to protect insurers than it is to protect citizens. Safe commercial locations are not as important as safe investment opportunities.