Rite-Aid off the hook for failing to inspect parking lot
In theory, if you are invited on property, you are under a duty to maintain reasonable inspection of the premises in order to protect yourself from hazardous conditions. In theory, the commercial owner of property is under a duty to inspect the premises and discover any hazard that is not "open and obvious." In theory, black ice is not readily visible, but a visitor is placed on notice if there is snow in the area or if the visitor grew up in Michigan. None of these theories is reliable, however, if you are the injured person and you have the good fortune to draw the wrong Court of Appeals panel.Kenneth Sims fell in a Saginaw Rite-Aid parking lot. He fell on black ice on a day when there was no "warning" of the presence of ice. His attorneys hired a climatologist who offered the opinion that the ice was probably present for two hours, based on meterological data; and on that basis, Sims argued that Rite-Aid should have discovered the black ice at its entrance before he fell.
Kirsten Kelly and two other Republican-appointee judges rejected Sims' claim as a matter of law. Basically, they held that Sims could not factually support the claim that the ice was present for Rite Aid to discover if it had taken reaonable steps to protect invitees on the premises.
Bottom line: draw the wrong judges and you lose, no matter what the facts are and no matter how careful your lawyer is. Some judges are glad to usurp the jury's decision-making power if the outcome satisfies their pre-existing biases.