Fall on ice in driveway is not subject to "open and obvious" rule where negotiating snow and ice was "unavoidable"
LuWanna Harrington sued Regina Simpson after she fell on ice in Simpson's driveway. Simpson had agreed to pay Harrington to help her prepare for an open house after Simpson's husband's funeral. It hadn't snowed for two days when Harrington arrived at the Simpson home, however, no one had cleared a path from the driveway to the house. After Harrington fell and was injured, Simpson's homeowner's insurer rejected Harrington's claim, arguing that the snow and ice presented an "open and obvious" hazard which Simpson was under no duty to correct. Harrington acknowledged that the snow and ice were open and obvious, but claimed that her case fell within the "special aspects" exception to the latter defense.Harrington argued that while the hazard presented by the ice and snow was "obvious" under the Engler Majority development of that premises liability defense, she was a business "invitee" and she had no alternative safe means of entering the Simpson home. A majority of the Court of Appeals' panel agreed and reinstated her claim. Judge Kirsten Kelly dissented.
Kelly argued that to meet the "special aspects" exception to "open and obvious," an injury victim must prove both that the hazard was unavoidable AND that it presented an unusual and extreme danger. The majority pointed to the Engler Court's use of "or" in connecting these requirements in support of its holding that an injury victim need not prove both. The majority also noted that under prior holdings of the Court of Appeals, a business invitee need only show that there is no safe alternative for entry to this property: the victim need not prove that no safe alternatives were available to obtain the same goods or services at some other location. There is a disagreement in the Court of Appeals on the latter point.