Injury victim who alleges that ice developed after 4:30 a.m. cannot prove lot owner "should have known of danger" and responded in under two hours
Joseph Bragg sued Daimler Chrysler and its contractor after he fell on black ice in a Daimler Chrysler parking lot while exiting his vehicle. The Defendants sought summary disposition, arguing that Bragg should have anticipated a dangerous icy condition because it was winter and some snow had fallen in the previous week. They also sought summary disposition on the ground that they could not be expected to inspect the entire lot in the dark and to discover black ice within 90 minutes or so of the ice developing.
The Court held that even though there was some snow on the ground in other locations, it was for the jury to determine whether Bragg should have observed enough evidence of ice and snow to be alerted to black ice as an "open and obvious danger." It went ahead and dismissed Bragg's claim, however, because Bragg's attorneys had filed an affidavit from a meteorologist alleging that the ice developed some time after 4:30 a.m. and less than two hours before Bragg fell. On the basis of these facts, Bragg could not possibly prove that the Defendant should have identified and cured every location where ice may have developed in the lot before Bragg arrived. Since Bragg confirmed that the 4' square patch of ice was virtually invisible, there was no basis to hold that the hazard should have been identified by the Defendant in time to salt or sand it.