Restaurant may be responsible for fall on black ice at entrywayM.L.Pray was entering "Damon's Grill" in Genessee County when he slipped on ice and broke his ankle. The restaurant's insurer argued that the restaurant owed no duty to address the icy condition because it was "open and obvious." Although there was no accumulated snow in the area and Pray did not see the ice before he fell, the insurer argued that since it was winter in Michigan, and since it was bitterly cold, the "open and obvious" rule created an exception to the duty to reasonably maintain a business premise because "on casual inspection" a reasonable person would have known there was ice on the walk.
The Court of Appeals noted that the insurer's claim was an attempt to distort the prior rulings on black ice and "open and obvious" hazards. Since it hadn't snowed in several hours and there was no snow on the walk, there was no warning to patrons that they would encounter ice at the entryway. In this situation, by definition, "black ice" [which really means ice that is not reflecting any light so as to bring it to the observer's attention] is not readily observable to a reasonable person on casual inspection. Pray's lawsuit was reinstated and a jury will have to determine whether the restaurant took reasonable steps to protect the patrons it invited on its premises.
The Court also held that when an apparent employee showed up with a bucket of salt and acknowledged a problem with ice in the area, there was enough evidence of his employment relationship to infer that he was speaking within his employment duties--even though Pray could not recall whether the employee was wearing a uniform at the time.