For the past two decades, Michigan courts have ruled that persons who slip and fall on ice/snow have little or no right to recover from their landowner for their injuries. This is because the hazard created by snow and ice is “open and obvious” and, therefore, no duty to warn is owed to the injured person. Typically, lawsuits seeking recovery for injuries suffered as a result of a slip and fall on sidewalks/parking lots have been summarily dismissed by trial and/or appellate courts under the “open and obvious” defense, which states that snow and ice are dangers that are readily apparent to all, and as such, no warning or remedial measures need to be taken by the owners of these properties. As an example, if a person is on his or her way to a grocery store and slips and falls on ice while traversing, they are out of luck as far as successfully suing the owner of the parking lot for failure to remove snow/ice or to adequately salt the area. However, an exception to this so-called “open and obvious” defense has been created by Michigan’s appellate courts.
Recently, the Michigan Court of Appeals has carved out a narrow exception to the “open and obvious” defense to premises liability claims. In Estate of Brenda Bowman and Derick Bowman v. Larry Walker and Rodney Lauderdale, No.355561 (Mich. Ct. App. Feb. 10, 2022), the Court held that a “special aspect” existed where a tenant, who needed to go to work, lacked the ability to safely leave her apartment to go to her place of employment due to an accumulation of ice and snow on the grounds of the rental property. The Court found the apartment complex in question potentially liable, without regard to the “open and obvious” defense, where the tenant needed to get to work and in doing so, the tenant needed to be able to safely exit her apartment.
In forming this opinion, the Michigan Court of Appeals relied heavily on the recent Michigan Supreme Court decision of Estate of Livings v. Sage’s Investment Group LLC, 507 Mich 328 (2021). The Estate of Livings decision, also carved out an exception to the open and obvious defense where an employee fell due to ice while trying to enter her place of employment. Emphasizing the social importance of a person needing to get to their place of employment, the Michigan Supreme Court wrote:
Given that our state is prone to winter, it is reasonable to anticipate that many businesses will remain open even during bleak winter conditions. A landlord cannot expect that every one of its tenant’s employees will be permitted to stay home on snow days. Therefore, it is reasonable to anticipate that a person will proceed to encounter a known or obvious danger for purposes of his or her work. Accordingly, an open and obvious hazard can become effectively unavoidable if the employee confronted it to enter his or her workplace for work purposes.
Id. at p. 345.
These recent decisions by the Michigan Supreme Court and the Michigan Court of Appeals present a new exception to the “open and obvious” defense, changing the rules for slip and fall personal injury cases. Now, if a person who slips and falls while trying to get to work may have a cause of action where none existed prior to 2021 in limited circumstances. Given the current makeup of Michigan’s Supreme Court, more exceptions, or perhaps the elimination of the open and obvious defense altogether, may be anticipated.
If you have any questions, please contact Emily or your Fraser Trebilcock attorney. Fraser Trebilcock lawyers have expertise in insurance law and would be happy to consult with you.
Emily M. Vanderlaan is a litigation attorney at Fraser Trebilcock handling all aspects of personal injury and property litigation. Emily has had great success in Michigan and Colorado trial courts and in the Michigan Court of Appeals. You can reach her at (517) 377.0882 or at evanderlaan@fraserlawfirm.com.
For more than 30 years, Fraser Trebilcock attorney Gary Rogers has handled automobile negligence litigation. Recently, he has litigated a number of claims arising out of what you might think would be a rather safe driving maneuver – turning right on a red light, after determining there is no oncoming traffic.