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Ice can't cause much harm

        It will stun some injury victims for a second time to learn that one cannot suffer a severe injury as a result of a fall on ice.  The activist majority of "Engler Justices" on Michigan's Supreme Court had previously expanded the concept of "open and obvious" danger to exclude premises liability for hazards which are "readily apparent to a casual observer".  Previously this concept had eliminated a landowner's responsibility to warn invitees of an "apparent" hazard, but the duty to eliminate unreasonable hazards still remained.  The activist group of Republican extremist jurists expanded "open and obvious", though, to eliminate any duty to alleviate the hazard --- unless the Judges concluded that the hazard posed "an unreasonable risk of severe injury".

        The latter questions of "unreasonable risk" and "risk of severe injury" had historically been questions of fact for jurors, and many courts have continued to examine the circumstances of injury to distinguish particular situations from the  Court's new blanket exclusion from duty or liability.  In a recent case, though, the five Republicans on the Supreme Court reversed the trial court and the Court of Appeals and appear to have drawn a black and white rule relating to ice.

        In its holding in Kaseta v. Binkowski, the Republican majority of the Supreme Court adopted the reasoning of the dissenting judge in the Court of Appeals, concluding that there is nothing in the character, location or surrounding conditions pertinent to ice which gives rise to an unreasonable risk of harm.  If the victim knew there was snow within the general area, he or she should have expected to encounter ice and to suffer an injury--[though apparently not a "severe" injury].  Although Ms. Kaseta (the injured woman) never saw ice in the driveway until after she fell [in the dark], she "could have avoided the driveway all together and chosen an alternate path".  In addition, there "was no risk of serious harm because she could not fall an 'extended distance' ".

          To suggest that one cannot suffer serious injury without falling an "extended distance" betrays either incredible ignorance or intentional bias and obtuseness.  OSHA studies, for example, have documented that any fall over 14 feet carries a high risk of fatality.  The jurisprudence is replete with examples of individuals suffering death or serious injury as a result of a fall of only a few feet or from a standing position.  We've encountered several dozen cases of this nature, including fatalities, paralysis and permanently incapacitating head injuries.  We represented the dependants of a local woman who ultimately died as a result of a fall on ice at the TCAPS bus garage, just to list one example.   

        Electing to re-define the law to exclude all liability for falls on ice is the kind of result-oriented activism that is typical of this "Engler majority".  It demonstrates poor public policy--since a landowner is no longer encouraged to eliminate hazardous conditions--and the exercise of raw, unrestrained legislative power by the Justices in an effort to accomplish an illegitimate end.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
Fax: 231-929-7262