Postal carrier cannot sue car wash that caused regular icing problem on adjacent sidewalk

James Holland was attempting to deliver mail on his regular 20-year route when he encountered an icy sidewalk in front of the Northville City Car Wash.  As he was "picking his path" across the icy sidewalk, he was confronted by a driver leaving the car wash exit who appeared not to be attentive.  In attempting to evade the exiting car, Holland slipped on ice and suffered a severely fractured ankle.  He filed a lawsuit against the car wash, arguing that its operations resulting in an icy public sidewalk were a cause of his injury and a public nuisance.

The car wash did not deny that it caused the walk to ice over throughout the winter; its employee confirmed much of Holland's account of the incident.  Nevertheless, the car wash's insurer sought summary disposition of Holland's claim, arguing that the car wash owed no duty to remedy the icy sidewalk because the hazard was an "open and obvious" danger.  The insurer also argued that the ice didn't present a "public nuisance" as that term has been re-defined by insurance-oriented activist jurists.  The trial judge agreed with the insurer and Holland appealed.  On appeal, the Court of Appeals cited several recent Supreme Court decisions and concluded that Holland's case was properly summarily dismissed. 

The judges held that since Holland had encountered the icy sidewalk on his postal route on numerous occasions during his twenty year work history, the ice was an "obvious" condition which the Car Wash owed no duty to remedy. It rejected Holland's argument that encountering the exiting car while he was attempting to negotiate the ice did not affect the operation of the "open and obvious" doctrine:  since he chose to negotiate the icy hazard initially, the landowner's duty to remedy the hazard was eliminated.    He was not "trapped" by the hazard, and admitted that he could have "refused to deliver the mail," and therefore the landowner who created the hazard was entirely "off the hook" for his negligence.

The Court also held that the icy sidewalk--which had now existed for most of twenty winters, apparently--was not a "public nuisance."  The high court has re-defined public nuisance in recent years and suggested a very limiting application of the doctrine.  A "public nuisance" must involve not only a defect but also "threaten danger to the public."    It must be "harmful to the public health...create an interference in the use of a way of travel...and affect...peaceful use of...public streets."  This certainly sounds like the icy walk meets the definition of a public nuisance, but the judges ruled that it was not, because the ice was not "of a continuing nature that produces a permanent or long-standing significant effect on the rights of the public" and because Holland did not suffer "damages of a special character different from the injury suffered by the public generally." 

So with a few twists of language, a guy who has suffered a badly fractured ankle hasn't suffered damage different than the public who must "pick a path" through an icy sidewalk, and ice that accumulates on a sidewalk "on an almost-daily basis for 20 years" is not "permanent or long-lasting."  We should just quit pretending and let the insurance industry write the rules the Court is to apply:  the result would at least be more honest and subject to scrutiny.