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Injury claim based on fall caused by drain cover is dismissed.

The Court of Appeals upheld the dismissal of Kenneth Miller's injury claim against S M Hong Associates (a laundromat in Genessee County).  While carrying a laundry basket of clothing, Miller tripped on an elevated drain cover and fell, suffering serious injuries.  The Appeals Court majority felt compelled to dismiss the claim on the basis of the Supreme Court's broadened interpretation of the "open and obvious" rule.  Under that rule, the owner of a commercial establishment owes no duty to correct a hazard which a patron would discern "on casual inspection."

Judge Michael Kelly authored a thoughtful dissenting opinion, pointing out that historically and in all other aspects of civil law, the conduct of both plaintiff and defendant must be measured for "reasonableness" and compared.  If both contributed to the injury through inattention or "negligence" the jury must weigh their respective contributions and if the victim's negligence is not as great as the defendant's, the defendant should contribute it's "share" to the total damage caused.  Judge Kelly noted that eliminating any duty by a landowner to address so-called "open and obvious hazards" is inconsistent with long-standing Michigan law and sound public policy.  Judge Kelly also noted that it was not at all clear from the photographs submitted to the court that the drain cover was an "obvious" hazard to patrons.

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