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Judge Kirsten Kelly's policy on premises liability is illuminated.

Perhaps the most conservative approach on the Court of Appeals bench, Judge Kirsten F. Kelly's conservative philosophy was on display in the opinion issued in April Spears v. Providence Hospital this week.  Spears fell whlie entering the hospital.  While on the ground, she slipped when she put her hand down to assist herself in getting up.  It was only at that point, that she noticed that there was ice under her hand that caused her to fall.  She testified that she had seen no indication of snow or ice during the drive to the hospital or on the hospital grounds prior to her fall.

When Spears brought a legal action for negligence in maintaining the entry way, the Hospital sought, and was granted summary disposition.  On appeal, the Court of Appeals and Judge Kirsten Kelly ruled that the Hospital owed no duty to Spears because the very small ice hazard was "open and obvious" to a casual observer.  It based this holding on the fact that there had been a "trace" of rain the night before and the temperature was near freezing. 

While the above factors were not, apparently, sufficient to cause the landowner to check for ice at its public entryway, they were sufficient to charge an elderly woman with notice that she might encounter ice underfoot--and sufficient even to make that ice "open and obvious to a casual observer."  Regardless of how they are rationalized, decisions like this one clearly shift the burden of "reasonable inspection" from a commercial landowner charged with the duty to act reasonably to eliminate hazards, to the consumer.  Before the Republican majority on the Michigan Supreme Court "re-evaluated" this area of law, the jury was charged with weighing the reasonableness and "negligence" of both parties.

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