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Grocer not liable for pothole in parking lot; customer pushing shopping cart should have seen it

Meijer escaped liability for an injury that resulted to Deborah Hudspeth when her shopping cart struck a pothole and overturned.  She claimed that Meijer should be held accountable for the pothole hazard, which was 4 inches wide and one inch deep and hard to see in a poorly-lit parking lot.  The trial judge refused to dismiss her case, but the Court of Appeals, with predictable Henry Saad on the panel, reversed the lower court and threw out the case on summary disposition.

The higher court pointed to the fact that in total, the flaw in the lot was 12 feet long.  It decided, therefore, that the flaw had to be "visible to an average person onf ordinary intelligence...on casual inspection."   it rejected Hudspeth's argument that the dark and her shopping cart prevented her from seeing the hazard, and applied the Republican Supreme Court majority's "open and obvious" rule to eliminate any duty to repair the fault in the asphalt.  Prior to the Republicans gaining dominance on the Court, this kind of decision (i.e., what a reasonable person could be expected to see and avoid) would have been one for jurors to make.

The Court also held that since Hudspeth could see that the lot was dark, she was aware it was hazardous, therby eliminating the property owner's duty to take reasonable steps for customers' safety.

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