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No remedy for fall on icy business sidewalk

Cynthia Brown sued the Alterra Healthcare Corporation after she fell and injured her shoulder on the sidewalk approaching Alterra's building.  Her claim was dismissed before she was allowed to depose employees of the Defendant, and she appealed.  She argued that the dismissal was premature because she should have been allowed to explore what the corporation knew about the icing problem, what had been done about it and how long it had been present.  The Court of Appeals rejected her claims.

The Court of Appeals concluded that it was irrelevant whether the ice was caused by a structural problem with the building that caused the sidewalk to ice up:  since there was snow piled up on the adjacent ground and it was winter in Michigan, she should have known there might be ice on the sidewalk.  Therefore, by this brutal analysis, the ice was "open and obvious."  Even though she denied that any ice was visible, the court concluded that it was "open and obvious" because the above factors rendered it "discoverable upon casual inspection."  If this sounds to you like the operation of a legal fiction utilized to rationalize a public policy outcome (dismissal of the claim) we would find ourselves in agreement.

The court quoted the controlling law on the subject:  to alleviate the owner's duty to eliminate a hazard, the hazard must be "so obvious that an invitee might reasonably be expected to discover [it]....on casual inspection."  The panel then looked at pictures of the scene and reached the (factual) conclusion that Ms. Brown (or a "reasonable person") would have observed the ice and avoided it---by leaving the sidewalk to go through the "snow piled up" around it, if necessary! 

If this is the law we are going to apply, we should stop utilizing this semantic fiction of "open and obvious" and just legislate that property owners won't be responsible for injuries caused by accumulations of snow or ice.  For that matter, if judges will now be usurping the jury function of deciding what "the average person would have been able to discover" [p.3], perhaps we should admit that the jury itself is now an anachronism.  We should at least be intellectually honest about what we are doing.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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