Parties dispute whether specks of soap scum are "open and obvious."
Milagros Dascola fell in the shower at the Lansing YMCA while washing out her swimming suit. She noticed "specks" of dried soap scum after she fell, and sued the YMCA to cover the expense of her injuries, arguing that the specks of soap scum left the floor of the shower unreasonably slippery and hazardous. Two judges of the Court of Appeals overturned the lower court's decision that the soap scum, by definition, was not an "open and obvious" danger because it was not "visible on casual observation." These judges held that reasonable jurors could disagree, as a question of fact, with regard to whether the specks of soap were "open and obvious."
Judge Deborah Servitto would have reversed the lower court and entered judgment that the condition was an "open and obvious" hazard. She argued, on behalf of insurers everywhere, that Ms. Dascola "did not testify that the soap scum was invisible or nearly so," but merely "hard to see." In her mind that equates with "open and obvious," although she also questoned at the same time whether the accumulation of soap scum was "unreasonable"--and apparently believed that it was not a hazard that the YMCA staff should have addressed.