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Trip and fall claim should not have been summarily dismissed

Carol Siorakes sued Target Corporation after she tripped and fell on a sidealk leading to the entrance of the store.  She claimed she stubbed her toe, but admitted she didn't see what she stubbed the toe on.  A bystander pointed out an uneven area of patched cement, and Siorakes confirmed that it was right where she stubbed her toe.  The trial court dismissed her claim arguing that her claim that she stubbed her toe on the uneven patch/repair area was improperly based on speculation.  The Court of Appeals reversed, holding that the testimony taken as a whole created a question of fact for the jury to decide: there was ample circumstantial evidence to support  Siorakes' claim that she stubbed her toe on the repaired slab of concrete.  The court also held that because the patched location was "difficult to discern" it did not qualify as an "open and obvious" hazard which Target would owe no duty to repair.

The insurance-oriented judge, Kirsten F. Kelly, dissented and would have upheld the dismissal.  She believed that the repaired slab did not create a large enough hazard to consitute a danger.  She argued that the danger posed by the sidewalk irregularity  "[was] so obvious that the invitee might reasonably be expected to discover [it]" while simultaneously claiming that "the minor height not uniquely dangerous...[and] presents no unreasonable risk of harm."    So it wasn't REALLY dangerous--or dangerous enough for the owner to fix it---but the danger was obvious and should have been avoided by customers. 

The exercise of logic is not a prerequisite to service as a judge in Michigan.  Truth is, it was a question for the jury to decide whether the condition was dangerous enough for the owner to repair it, and also a jury question whether the lady was negligent in not avoiding the spot---if it was actually dangerous.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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