Snow and ice in Michigan
Judge William Murphy and Judge Jessica Cooper recently filed an opinion in Kaseta v. Binkowski that illustrated the hypocrisy of the current holdings addressing black ice as a safety hazard. In Kaseta, the Plaintiff was invited to the Defendants' home to execute legal papers; on leaving, she fell on black ice on the sidewalk and suffered severe injuries. Judge Bill Whitbeck, an Engler associate, dissented from the majority opinion and would have distinguished between whether "a reasonable person in the Plaintiff's position would foresee the danger" and "whether a particular plaintiff should have known that the condition was hazardous". Whitbeck would argue that these statements support different standards of inquiry. On reasonable reflection, that seems to be so much semantic nonsense.
Whitbeck's position--the insurer's position--is that any Michigan resident should always recognize the potential of slippery conditions in Michigan during winter months, even upon casual inspection, and that therefore landowners owe no duty to correct these conditions. Setting aside the fact that this is bad law and unfortunate public policy--since it removes any duty to improve hazardous conditions--this theoretical lack of duty is inconsistent with the position taken by the same insurers' in no fault auto claims.
The same judges who hold a pedestrian responsible for failing to anticipate black ice also allow motorists who lose control on black ice and cross the centerline, causing death or serious injuries, to claim the "unexpected" and "unanticipatable" black ice as a "sudden emergency" excuse for crossing the centerline or losing control. Judges Murphy and Cooper pointed out that the standard and the inquiry in each case is the same: if a motorist can be surprised by black ice in the winter, then a pedestrian can also. If one can claim surprise by the condition as a defense, it should also be available as a potential argument for injury victims who did not recognize its presence.