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Judge Bandstra argues for judicial activism in protecting property owners

Terri Price tripped and fell at a Kroger's store, after her ankle was snagged by a wire protruding from a display basket of candy.  She did not notice the wire, which protruded about one inch from the basket at ankle level, until after she fell.  Two justices of the Court of Appeals overturned the lower court's dismissal of her case; the lower court had held that Kroger owed no duty to her because the protruding wire was "open and obvious."  The reversing judges rejected that claim, pointing out that it was a question of fact for the jury to decide whether this kind of "hazard" was likely to be seen by a visitor "on casual inspection."  If the hazard was not apparent on casual inspection, then the premises' owner owes a duty to make the dangerous condition safe.

Judge Richard Bandstra dissented from the opinion in a wide-ranging dissent, essentially arguing that "stuff happens" and it is bad for the economy if injury victims can sue.  There is no reason why the legislature could not vote to eliminate a landowner's duty to make his premises "reasonably safe", however, to date our Michigan Legislature has not chosen to make that fundamental change in the law.  

As matters currently stand, people who own property and invite people on to that property for commercial purposes owe a duty to make the premises reasonably safe.  Persons injured by unsafe conditions on commercial property have a right to transfer some or all of the cost of the injury (minus any comparative fault) to the landowner who allowed the dangerous condition to exist.

Bandstra suggests that Michigan's high unemployment is not a result of the collapse of the automotive industry, but rather a product of "minimal protection" offered under Michigan law to commercial interests, despite the fact that Michigan has perhaps the most stringent anti-victim premises' liability rules in the country.  He then suggests that requiring Kroger to present its claim to a jury for decision with regard to whether the protruding wire was "unreasonably dangerous" and not "visible on casual inspection" will result in further damage to Michigan's economy. 

As Judge Elizabeth Gleicher points out in her concurrence, Bandstra is attempting to turn two hundred years of common law wisdom on its head:  the owner owes a duty to investigate his property for conditions that present a danger to visitors.  The visitor owes a duty to observe dangers that are apparent on casual inspection.  Bandstra suggests that Ms. Price was at fault for failing to see the protruding wire on casual inspection, while maintaing that Kroger employees had no duty to notice the condition when they fulfill their duty to inspect the property for defects.  This is nonsense that rationalizes an attempt at judicial activism:  an attempt to "reform" the law to make it accomplish a new purpose. 

Bandstra argues that "[P]eople sometimes get hurt. In the natural course of things, the injured person bears the cost of the injured person may become a plaintiff and seek to impose the cost of an injury upon someone else."  As this explanation demonstrates, Bandstra would prefer that most injury victims simply absorb the cost of their injury, perhaps for the good of the economy.  In fact, however, under our law, the person who causes an injury bears the primary cost, at least to the extent of his or her insurance. 

If Judge Bandstra sincerely believes that this law should be changed for the sake of improving commerce, he should approach the Legislature and make that suggestion.  In the meantime, Michigan judges elected with the support of special interests like the Chamber of Commerce and the insurance industry should quit twisting words to

Thompson O’Neil, P.C.
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