The weather in the past few days and weeks has been unseasonably cold. Even as I write this, there are near blizzard conditions outside, and any travel is hazardous. And when there is snow and ice, there is often injury.
What is Michigan’s law with regard to slip and fall cases involving icy conditions?
The Michigan Supreme Court addressed this topic in the 2012 case of Hoffner v. Lanctoe, 492 Mich 450. In Hoffner, the plaintiff had a paid membership to a fitness center owned by the defendants, Richard and Lori Lanctoe. The Lanctoes were responsible for snow removal. The Lanctoes had shoveled and salted earlier in the day, but when Hoffner arrived at 11:00 am, she observed that the sidewalk was icy. She thought that that ice “didn’t look like it would be that bad” and decided to enter the building. She fell on the ice, injuring her back.
The Michigan Supreme Court began by laying the foundation for Michigan’s rules in slip and fall cases. “First, landowners must act in a reasonable manner to guard against harms that threaten the safety and security of those who enter. Second, landowners are not insurers; that is, they are not charged with guaranteeing the safety of every person who comes onto their land.”
So there is a balance. On the one side, landowners should strive to diminish harms, but visitors must also be careful to avoid obvious harms.
With regard to business invitees, “a landowner owes a duty to use reasonable care to protect invitees from unreasonable risks of harm posed by dangerous conditions on the owner’s land.” “[A] breach of this duty of ordinary care [occurs] when the premises possessor knows or should know of a dangerous condition on the premises of which the invitee is unaware and fails to fix the defect, guard against the defect, or warn the invitee of the defect.”
However, a landowner “owes no duty to protect or warn” of dangers that are open and obvious[.]” Michigan courts have held that whether a danger is open or obvious depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection.
There is an exception to the “open and obvious” defense. Michigan courts have found liability when special aspects of a condition make even an open and obvious risk unreasonable. When such special aspects exist, a premises possessor must take reasonable steps to protect an invitee from that unreasonable risk of harm. And, the Michigan Supreme Court shared two examples in which special aspects of an open and obvious hazard could give rise to liability: when the danger is unreasonably dangerous or when the danger is effectively unavoidable.
A brief recap:
1) No duty to protect when condition is “open and obvious.”
2) There is a duty if there are “special aspects:”
a) When danger is “unreasonably dangerous.”
b) When danger is “effectively unavoidable.”
The Michigan Supreme Court applied the above rules in Hoffner. The Court noted that there was “no dispute that the ice on which plaintiff fell was objectively open and obvious. Instead, the parties’ real dispute concerned whether that readily apparent ice patch was effectively unavoidable and thus constituted a special aspect.”
The Court held that “the standard for ‘effective unavoidability’ is that a person, for all practical purposes, must be required or compelled to confront a dangerous hazard. As a parallel conclusion, situations in which a person has a choice whether to confront a hazard cannot truly be unavoidable, or even effectively so.”
The Court then reasoned that “the Plaintiff observed the ice at the entrance to the fitness center, which she desired to enter. Plaintiff freely admitted that she knew that the ice posed a danger, but that she saw the danger as surmountable and the risk apparently worth assuming in order to take part in a recreational activity. Plaintiff was not forced to confront the risk, as even she admits; she was not ‘trapped’ in the building or compelled by extenuating circumstances with no choice but to traverse a previously unknown risk. In other words, the danger was not unavoidable, or even effectively so.”
In summary, from this case we learn that unless a person is required or compelled to confront a dangerous hazard such as an icy or slippery surface, it will probably be difficult to win a slip and fall case. But as usual, I caution that if you or someone you know has been injured in a serious slip and fall, it can’t hurt to speak with an attorney to learn your rights.