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Supreme Court overturns appellate court: summarily dismisses man's injury claim after fall on "black ice."

Matthew Cole sued the Henry Ford Health System after he suffered severe injuries in a fall on ice at the Hospital entrance.  Cole was an elevator repairman who was called to the Hospital to address an elevator malfunction--apparently while enjoying a night on the town.  Post-injury his blood alcohol level was .14.

The Hospital argued that Cole's injury claim should be dismissed summarily (without a trial) because he could not deny being more at fault than the Hospital--given his blood alcohol level.  It also argued that the "black ice" where Cole fell was "open and obvious" and therefore the Hospital owed no duty to address the hazard.  The Court of Appeals had noted that there was contradictory evidence with regard to whether Cole showed signs of visible intoxication and whether the ice hazard was visible "on casual inspection."  In particular, the intermediate Court noted that there had been no precipitation that day, only a "trace" the day before, and no melting of snow for 48 hours.  It also noted that there was testimony alleging inadequate lighting in the area.  On the basis of these conflicts in the evidence, the Court of Appeals ruled that the questions of fault and "open and obvious" were fact issues for the jury. The Hospital appealed to the Supreme Court.

This week in a one paragraph decision, the Supreme Court overturned the lower court and summarily dismissed Cole's lawsuit.  It ruled that because some witnesses claimed to have seen icy patches in the area, and because there was "snow on the ground, some precipitation the previous day and a recent thaw followed by consistent freezing temperatures," an "average user of ordinary intelligence would have foreseen and discovered the ice on casual inspection."

For better or worse, in Michigan, the Republican Justices on the Michigan Supreme Court have for all intents and purposes eliminated any duty of landowners to eliminate snow and ice hazards on their property.  Previously, a land possessor's duty was a question of comparative fault and was determined by the jury's assessment of the reasonableness of both parties. 

Now, if an injury occurs because of winter conditions, the fall victim is deemed to have relieved the landowner of any duty to address a hazardous condition because the victim is deemed to have encountered the winter peril at his or her own risk--regardless of the reasonableness of the landowner's response to a hazard.  This is "judicial activism."  It happens in places like Michigan where special interest money determines the outcome of judicial elections.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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