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Judges disagree about "open and obvious" puddle of water at dealership: Saad would hold that condition unseen by three people was "obvious to casual observer."

Ilene Pernell drove her car to Suburban Motors for service.  At an employee's request, she exited the car and followed him toward the customer service lounge.  She slipped and fell, suffering injury.  She ultimately filed a lawsuit alleging negligence by the dealership in maintaining the customer traffic area.  The Defendant argued the puddle was "open and obvious" and that it owed no duty to visitors injured by it, as a result.  The trial court agreed and granted summary disposition, and Pernell appealed.

Under an insurance-friendly Republican Supreme Court, the land owner's duty to make his premises "reasonably safe" has been virtually nullified by the transformation of the "open and obvious" doctrine in to a an elimination of duty.  Previously the doctrine eliminated the duty to warn of a hazardous condition that was so apparent on casual inspection that it constituted an effective warning.  The insurance-friendly judges have turned this doctrine into a complete defense that eliminates the landowner's duty of reasonable repair.

In Pernell, the facts indicated that Pernell was following close behind the service rep and did not see the puddle she slipped in.  She only became aware of it when she was on the ground and felt it.  Similarly, the rep she was following testified that he didn't see the puddle beforehand.  The employee responsible for maintaining the area testified that he had not observed the puddle before Pernell's fall, either.  They said they could see the puddle after the fact.

On the basis of this testimony, the Court of Appeals majority ruled that the puddle wasn't "open and obvious" because it was not "reasonably apparent to the average person on casual inspection."  The majority sent the case back to the lower court for a jury to decide whether the landowner was negligent in maintaining the traffic area and whether Pernell was negligent in not observing the puddle.

Judging by his written word, Judge Henry Saad simply doesn't believe insurers should ever pay for anything.  His opinions run about 99 to 1 against injury victims with some outrageous reasoning and what appears to us to be distortion.  In this case, he argued that even though two of defendant's employees did not see the puddle, the plaintiff's case should be dismissed because the puddle was "open and obvious" and would be seen by the average person on casual inspection.  It doesn't appear that he even pays lip-service to the law as it is written:  an embarassing activist, we wonder if even he believes what he writes.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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