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Manistee County fall generates thoughtful opinion on "black ice".

Judy Slaughter fell at a Blarney Castle gas station when she and her husband stopped to fill their truck's gas tank and to use the restroom.  She claimed she fell on very slippery asphalt as she was stepping out of the truck.  There was no visible ice or snow on the ground, and she claimed that there was nothing about the ambient weather that caused her to anticipate ice on the ground.  The defendant asked the Court to dismiss her claim, using the argument that any Michigan resident should always expect "black ice" in the winter, and therefore the landowner owed no duty to eliminate or address this "open and obvious" hazard.  The trial court questioned whether black ice could truly be "open and obvious", since by definition, it was not "apparent to a casual observer". 

The Court further questioned Blarney Castle's attorney about what the standard of care for the fall victim should be--if, in fact, "black ice" was to be expected everywhere in Michigan in winter:  In an incisive response to this over-reaching defense, the Court asked, in essence:  "Should we all carry ski poles with spikes?...Wear Crampons on our shoes?...Does this mean we don't dare walk and should just stand there?"  The trial court denied the defendant's motion for summary judgment and left the decision of  relative fault for the jury to decide. 

On appeal, in a very thoughtful opinion, the Court of Appeals panel held that the trial court was correct in leaving the factual analysis of this issue to the jury.  The jury would have to decide whether essentially-invisible ice was present, whether the defendant had reason to be aware of the ice, and whether it had taken adequate steps to make its property reasonably safe for invited customers.  The court drew a distinction between this situation and a victim's claim that he or she did not expect to find ice under snow or frost.

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