Henry Saad, insurer's judge, strikes again
When Governor Engler appointed Henry Saad to the Court of Appeals he knew what he was getting. And Judge Saad has delivered. He is an assured vote for the insurance company no matter the circumstances or the legal question. He confirmed that position again recently, voting to dismiss the claim of a Save-a-Lot patron who allegedly fell on black ice in the parking lot. Shirley Powell claimed she never saw, and couldn't see the ice until after she was on the ground, so it couldn't be "open and obvious." The Court disagreed.
The standard for finding a condition "open and obvious" is whether an "average user of ordinary intelligence [would] have been able to discover [the condition] upon casual inspection. Judge Saad and his companions elevated that standard to what a reasonable meterologist would discover after consulting the 24-hour weather service: "snow flurries and mist almost continuously from 5:51 until 11: 24...periods of fog...the temperature was below freezing...ideal conditions for the formation of 'black ice' ." Therefore, " a reasonable lifelong citizen of MIchigan would have foreseen that mist, snow, fog and freezing temperatures in February could lead to the formation of black ice," he concluded. Meanwhile, he ducked the question of whether an average person of ordinary intelligence would have discovered the condition "on casual inspection".
In order to reach this conclusion, Saad had to distinguish the Powell v. Save-a-Lot case from an earlier decision by another panel which had recognized that by definition "black ice" is not open and obvious. In Slaughter v. Blarney Castle Oil Company, the Court had rendered a decision on this topic that should have bound all Court of Appeals judges considering the issue. The activist Saad wasn't about to bend, however.
In short, by defining the condition as discoverable--if you are aware of all the underlying facts, Saad and his insurance buddies get to raise the threshold for a landowner's duty, so that the landowner is not responsible for any problem that someone can logically explain after the fact. By their logic, there is no duty to clean up a hazardous condition, even if people exercising "ordinary casual inspection" would not not recognize the danger.
Theirs is an exercise in semantics: don't even attempt to address the underlying public policy issues or the common sense reality of every day life; just string together words that rationalize a decision that favors your constituency. We should be able to expect more from our judges.