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Volume XXIV, No. 11, August 3, 2012

From the Law Offices of Garan Lucow Miller, P.C.

From the Co-Editors

James L. Borin & Simeon R. Orlowski

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“OPEN AND OBVIOUS DANGER RULE” STILL ALIVE AND WELL AFTER MOST RECENT SUPREME COURT RULING

CONTRIBUTOR – WILLIAM J. BRICKLEY

A serious attempt to practically set aside Michigan’s Open and Obvious Danger Rule for premises liability claims was rejected by the Michigan Supreme Court in its July 31, 2012, opinion in the case of Hoffner v Lanctoe, No. 142267. For now, the rule is still valid and the Court even further limited a possible exception to the rule.

Charlotte Hoffner was a paid member of Fitness X-press, a health club, located in a strip mall in Ironwood. On a cold, winter day, she desired to take advantage of her paid membership and approached the facility to exercise. Although the area had already been cleared and shoveled once in the day, as will happen in Michigan in January, more snow and ice accumulated by the time Ms. Hoffner attempted to enter the building. It was undisputed there were no other points of entry and her only other choice would have been to avoid going into the location all together. She admitted to noticing the condition but reasoned that “I thought that I could make it.” Unfortunately, she fell on the ice, injuring her back.

The duty owed by the possessor of the property is generally to take reasonable steps to make sure a property is reasonably safe for those who will be using it. The Open and Obvious Danger Rule says that if the defective condition is there to be seen by a typical user, then there is no duty. It then follows that if there is no duty, there is no liability.

In creating the Open and Obvious Danger Rule, the Supreme Court also created an exception. If the condition of the property has “Special Aspects” to it, then the Open and Obvious Danger Rule would not apply. Unfortunately, the Court did not really define the phrase “Special Aspects” well and there were always many inconsistencies in the way the Trial Courts applied the rule.

The Plaintiff argued that a Special Aspect should exist when a person has paid money to have the right to come on to the property and there is only one entrance. This entrance was the only way for the plaintiff to enter and, therefore, in order for her to take advantage of her contractual right to enter the property, she had no choice but to walk on the poor conditions. This rationale was accepted by the Trial Court as well as by the Court of Appeals.

If also accepted by the Supreme Court, this rationale could have potentially eliminated the Open and Obvious Danger rule as it applies to any type of store or other business that has only one entrance and exit. All someone would have to do is to show a financial connection to the business, show there was only one entrance, and they would have a Special Aspect and the claim could not be thrown out by way of a motion.

The Supreme Court rejected this analysis. They pointed out that Ms. Hoffner had a choice. She was not compelled to walk over the ice and snow. She could have turned around and gone home. The Court in discussing the issue of whether something was “unavoidable” stated:

 Unavoidability is characterized by an inability to be avoided, an inescapable result, or the inevitability of a given outcome.

 The Court went on to say:

 that a person, for all practical purposes, must be required or compelled to confront a dangerous hazard.

 An example given in a previous case and confirmed again by the Supreme Court involved a situation of a person who enters a building, and only after being in the building does a dangerous condition arise in the area of the only exit to the building. If that were the scenario, then that would be considered a Special Aspect and the Open and Obvious Danger Rule would not apply.

The decision was a 4-3 vote. It is likely that more attempts will be made to attack this rule and its effect of seriously limiting the claims of people who suffer injuries on others property. For the meantime, the Open and Obvious Danger Rule is safe, sound and strengthened by this ruling.

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MINI-TORT MAXIMUM INCREASE

On June 7, the Governor signed Public Act 158, which increases the mini-tort maximum to $1,000. The change is effective October 1, 2012. We interpret that effective date to refer to the date of the accident, not to the date of the filing of the lawsuit for property damage (which will most often be filed in small claims court). We will discuss this in further detail at the Troy Breakfast Seminar on August 30, 2012.

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GARAN LUCOW MILLER ANNOUNCES ROSALIND ROCHKIND SELECTED AS “2012 WOMEN IN THE LAW”

It is with great pleasure that we announce that Rosalind Rochkind of our Appellate Department, has been selected as one of the top 20 outstanding members of Michigan’s legal community, Michigan Lawyers Weekly – 2012 Women in the Law!

The winners were selected by a committee based on their outstanding professional accomplishments, mentoring and community involvement.

Congratulations Roz!

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GARAN LUCOW MILLER SPONSORS THE 2012 CHERRY ROUBAIX BICYCLE RACE IN TRAVERSE CITY

The 4th Annual Cherry-Roubaix bicycle race, sponsored by Garan Lucow Miller, P.C., will be held from August 10th through the 12th, 2012, on the streets of Traverse City, Michigan and neighboring Leelanau County, and will feature the 2012 State Road Race Championships. There will also be a charity fun ride out Old Mission Peninsula. Please see the event website at www.cherry-roubaix.com for more details.

Please mark your calendars to join us at this exciting event. Garan Lucow Miller will be hosting special events during all three days including a VIP viewing area at Saturday’s race. Please advise Peter Worden, in our Traverse City office at (231) 941-1611 or pworden@garanlucow.com, if you will be available to join in the festivities.

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TROY BREAKFAST SEMINAR

WHEN: THURSDAY, AUGUST 30, 2012

WHERE: TROY MARRIOTT 200 W. BIG BEAVER, TROY, MI 48084

TIME: CONTINENTAL BREAKFAST/CHECK IN – 8:00 A.M. – 9:00 A.M.

SEMINAR: 9:00 A.M. – 1:30 P.M.

REGISTER: We are almost at capacity, please advise if you have registered and are now unable to attend, so that we may accommodate others. ecarty@garanlucow.com