Hazard is "open and obvious" despite code-violation lack of lighting
Allegedly, Katrina Gorges died as a result of injuries suffered when she fell while leaving a friend's home. She suffered a fractured hip and complications after falling on the sidewalk while leaving at 1 a.m. Her family alleged that she fell because of the combination of a lack of lighting, an uneven sidewalk, and slipperiness caused by weather conditions.
The family also argued that the former two conditions constituted building code violations; the court noted that the family did not allege that black ice was present, or that Ms. Gorges was unaware of the inclement weather. The Court held Ms. Gorges' family had no right to sue, and that the homeowner owed no duty to repair the broken overhead light or to comply with the building code, because these alleged defects presented no "special aspects" of unreasonsable danger to Ms. Gorges or other invitees or licensees on the property.
We would suggest that this is a specious rationalization, concocted by the Engler Majority in a series of cases, to justify a preferred outcome: that is, a lack of duty by the homeowner and no payment of compensation by the insurer. A fall on ice can be fatal [we've seen it] and in appropriate cases a landowner should owe a duty to eliminate known hazards, even if the hazard is "only" a fall of a few feet (as in the Becker v. Glaister case) or from ground level. The Taylor court's efforts to minimize premises liability claims through the misapplication of the "open and obvious danger" theory has resulted in a totally artificial distinction between hazards and "special aspects" hazards which distinction enjoys no justification in safety or policy.
Simply because "an average user with ordinary intelligence would have been able to discover the danger and the risk presented upon casual inspection" should not completely eliminate the landowner's duty to address the risk. The duty to cure should be maintained, even if it is only to protect users who don't have "ordinary" intelligence and eyesight [the doctrine also protects landowners from claims made by blind victims or children, for example, because it is based on an "objective" standard]. In fact, if there is an identifiable, appreciable risk, the landowner and the victim should both be held to a reasonable standard of care. Their negligence in causing the injury should be "compared" with only the landowner's share of fault being a source of compensation.