Storm drain hidden by grass is "open and obvious"
Dean Ouelette hurt himself when he cut across the grassy right of way while biking to the Kroger store in Grand Blanc. His bike struck a French drain cover causing him to be thrown to the ground and injured. The Court ruled that even though Ouelette didn't see the drain cover in the unmowed grass until he was two feet away, the hazard was "open and obvious" because "an average user with ordinary intelligence would have been able to discover the danger and the risk presented upon casual inspection."
There are many things wrong with Ouelette's injury claim, but it seems to us that none of them relate to an "open and obvious" danger. He cut through the unmowed grass rather than entering the Kroger lot by the available driveway, and should not have been surprised to encounter obstacles in the deep grass--particularly on a rapidly moving bicycle: that renders his lawsuit against Kroger unreasonable, however, it certainly doesn't render the "risk" associated with the drain cover "open and obvious."
The latter defense has become so over-used and bloated that it amounts to a tortured and illogical repository for and premises claim that a judge dislikes. Under proper circumstances, a French drain obscured in deep, unmowed grass could be an unreasonable risk which a landowner should owe the duty to maintain. Because Oulette's injury doesn't fit that paradigm does not justify identifying this condition as an "open and obvious" hazard.