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Republican stalwarts hold that stepping near crumbling curb relieves owner of duty to repair

Gail Anderson sued Sears Roebuck, arguing that its failure to maintain a crumbling curb resulted in her fall and injuries.  Sears argued that the crumbling curb in the area where Anderson fell was an "open and obvious" hazard, and therefore it owed no duty to address the problem.  The trial judge refused to grant Sears summary disposition, and it appealed.  The case went to the Michigan Supreme Court, where it was referred back to a Court of Appeals panel that included special-interest stalwart judges Kirsten Kelly, Henry Saad and Christopher Murray.  This is a combination of judges who virtually ALWAYS vote to dismiss any personal injury case, regardless of the facts or law.

They didn't surprise here.  As near as we can tell from the quoted opinion, they concluded that since Anderson stepped on the curb in an area adjacent to where the curb was crumbling, she has no right to pursue a claim.  Apparently, the judges rationalized their decision by the belief that Anderson should have recognized the crumbling curb as a hazard and immediately understood that adjacent areas of curbing were also hazardous.  It doesn't matter if the weakened area did not crumble until she placed her weight on it:  Since she didn't notice and act to protect herself by avoiding the curb entirely, as the judges apparently concluded a reasonable person would have done "on casual inspection," Sears was relieved of any duty to maintain its commercial premises in reasonable repair.

It is sad that elected judges have so distorted what was originally, under law, a duty by all persons to act reasonably for their own safety and the safety of persons invited onto their property for commercial purposes.  At this point, victims owe an elevated duty to instantly recognize potential hazards which have existed for months or years, and the commercial enterprise responsible for the hazard owes no duty to recognize and respond to the same condition.

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