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Woman obligated by landlord's rules to transport dog may avoid operation of "open and obvious" rule

Starr Simpson was hurt when she fell while negotiating a pile of snow and ice in her apartment's parking lot.  She claimed that the landlord's snow removal contractor did an inadequate job of clearing the built-up areas of snow and ice, and that the landlord was violating statutory rules requiring a landlord to reasonably maintain rental property.  The landlord sought summary disposition, arguing that the statutory duties of a landlord to reasonably maintain the property didn't apply to common areas or snow and ice and that in any event, the hazard was "open and obvious," therefore eliminating any duty the landlord owed to clear the hazard.  

The trial judge agreed on all points and dismissed the case.  Stimpson appealed.  The higher court cited recent decisions by the Republican, insurance-friendly majority of the Michigan Supreme Court, each of which rejected Stimpson's argument that the landlord owed a duty to maintain common areas reasonably free of snow and ice.  The Court in Stimpson's case pointed out that the Supreme Court majority made no distinction between naturally-occurring and artificial collections of ice and snow.

The appellate court reversed the summary disposition granted to the landlord on a single point, however, and sent the case back to be tried before a jury.  The higher court panel pointed out that while the icy hazard was "open and obvious," the injured woman had raised a fact question with regard to whether the hazard was "effectively unavoidable," since she was required by the landlord's rules to walk her dog in a specific area.  Since her elderly dog could not walk to the dog-walking area, and since the dog could not wait for her to salt and clear the ice and snow, if jurors accepted Stimpson's account of the incident, they may excuse her from the operation of the "open and obvious" exclusion from liability.

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