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Volume XXVII, No. 12, May 27, 2015        

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

From the Editor: Sarah Nadeau 

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COURT OF APPEALS MAJORITY LETS PLAINTIFF EVADE OPEN AND OBVIOUS DOCTRINE

 

By Christian Huffman 

    

In the recent unpublished opinion of Compau v Pioneer Resource Company, LLC, decided April 16, 2015 (Docket No. 320615), two Judges of the Michigan Court of Appeals effectively permitted a Plaintiff to circumvent the open and obvious doctrine by permitting her to proceed with an ordinary negligence claim.

The Plaintiff in Compau was a spectator at a lawnmower race.  During a collision, one of the lawnmowers ran into the fence surrounding the track.  This caused the Plaintiff to take a step back, and when she did she tripped over a railroad tie.  The trial court determined that the Compaus’ claims sounded in premises liability, reasoning that the lawn mower did not actually hit Michele Compau. It determined that the railroad ties were an open and obvious hazard and that they did not have special aspects that rendered them unreasonably dangerous.

The Court of Appeals affirmed the trial court’s dismissal of the Plaintiff’s premises liability claim on the basis of the open and obvious doctrine.  But, the two Judges in the majority held that Plaintiff’s allegations that the Defendants had failed to safely design the track and operate the races “sound in ordinary negligence because they do not concern hazards on the land,” and that the open and obvious doctrine does not apply to bar an ordinary negligence claim.

Interestingly, the majority failed to address the Supreme Court’s holding in Kachudas v Invaders Self Auto Wash, 486 Mich 913 (2010), that a Plaintiff injured by a dangerous condition on the land is limited solely to a premises liability claim.  Moreover, as pointed out by Judge Gadola in his dissent, the majority failed to acknowledge the Court of Appeals’ own holding in Buhalis v Trinity Continuing Care Servs, 296 Mich App 685 (2012), that this is so even when the Plaintiff alleges that the dangerous condition was caused by some negligent act by the premises possessor.  In this case, the very crux of the Plaintiff’s “un-safe design” theory was that Defendants’ placement of the railroad ties and the fence surrounding the track created a dangerous condition, and the crux of Plaintiff’s “failure to safely operate the race” argument was that Defendants had not warned her of, or protected her from, the railroad ties and the design of the fence and track.  Since all these things were conditions on the land that were allegedly caused by some negligent act of defendants, it appears the majority simply wished to let the Plaintiff evade the open and obvious doctrine.

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EXPERT TESTIMONY REGARDING GENERAL WEATHER CONDITIONS

IS INSUFFICIENT TO CREATE INFERENCE OF NOTICE OF THE PREMISES OWNER

 

By Eric Smith

In Bate v State Farm Mutual Automobile Insurance Company, unpublished opinion per curiam of the Court of Appeals, issued May 12, 2015 (Docket No. 320577), Court held that an affidavit of an expert meteorologist regarding general weather conditions at the time an alleged slip-and-fall on black ice was not sufficient to create an inference that the premises owner had constructive notice of the presence of black ice at the time of an alleged slip-and-fall.

Plaintiff had testified that on December 11, 2011, she stopped her car near the pump and, after putting her left foot down as she was exiting her car, she fell to the ground. She testified that she ended up on the ground, “on the ice.”  Although admitting that she could not see any ice on the ground, the plaintiff testified that she “felt it” with her hands as she was lying on the ground.  She described the area where she fell as “slippery and cold and wet and dry.”  No precipitation was falling and no slush or snow was on the ground.

Defendant moved for summary disposition arguing it had no notice of the alleged ice, or that the alleged ice was open and obvious.  In opposition to defendant’s motion and in order to create a factual issue as to notice, plaintiff submitted an affidavit from its expert meteorologist, Paul H. Gross, C.C.M. In his affidavit, Gross averred that conditions at the location at the time of the alleged fall were cold enough to freeze water and to cause an accumulation of ice.  Gross further averred that, given the weather conditions existing at the time, application of an ice-melting agent such as salt would have been sufficient to remove the condition and to prevent plaintiff’s fall.

The Court of Appeals rejected the argument that Gross’s affidavit created a genuine issue of material fact concerning whether the owner had actual or constructive notice of the accumulation of black ice near its gas pumps at the time of the alleged fall. Citing to Altairi v Alhaj, 235 Mich App 626, 640; 599 NW2d 537 (1999), the Court noted that “a meteorologist’s affidavit of general weather conditions, including his or her opinion that ice could have formed under the conditions at the time of the accident, does not permit a reasonable inference that the defendant had constructive notice of ice.” Perhaps more fatal to the plaintiff’s claim was the Court’s observation that “[i]nsofar as plaintiff seeks to use general knowledge of local weather conditions to show that defendant should have known that ice had accumulated, the same knowledge can be imputed to plaintiff.” [Opinion, at 5]

Affidavits such as the Gross affidavit in Bates have become the norm in opposition to defense dispositive motions in cases involving alleged slip-and-falls on black ice or other accumulations of ice and snow.  The Bates decision is useful to defense practitioners in premises liability cases involving black ice in that it shows that Michigan’s higher courts are reluctant to accept boilerplate affidavits from liability experts that are intended to create factual questions on the issue of notice.

 

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REGISTER NOW!

 WINDY CITY SEMINAR

The 2015 Windy city Seminar will take place on Thursday, June 18, at the Chicago Marriott Schaumburg.

 

Please join us for a complimentary full day seminar, lunch will be included, also 6 Illinois Continuing Education Credits will be offered.

To register please contact Eileen Carty at: ecarty@garanlucow.com or 800-875-7600.

 

Seminar Agenda: 

 

8:30 – 8:55 a.m.             Continental Breakfast and Registration. 

 

8:55 – 9:00 a.m.             Welcome and Introduction.

Speaker: David A. Couch, Esq. 

 

9:00 – 10:00 a.m.           Illinois First Party and Third Party Auto Law Updates.

Speaker: Jennifer E. Davis, Esq.

 

10:00 – 10:15 a.m.          Michigan Premises Liability Law Updates.

Speaker: David A. Couch, Esq. 

 

10:15 – 10:30 a.m.          Michigan Premises Liability Law Comparison With Adjacent State Laws.

Speaker: David A. Couch, Esq.

 

10:30 – 10:45 a.m.          Break

 

10:45 – 11:30 a.m.          Michigan First Party No-Fault (PIP) Updates.

Speaker: John W. Whitman, Esq. 

 

11:30 – 12:00 noon         Michigan Third Party Automobile Negligence Updates.

Speaker: David A. Couch, Esq.

 

12:00 – 12:15 p.m.         Question and Answer Session. 

 

12:15 – 12:30 p.m.         Examination on Michigan Law Topics and Comparison with Illinois Laws.                                                           

 

12:30 – 1:00 p.m.           Lunch provided at the Chicago Marriott Schaumburg 

 

1:00 – 4:00 p.m.             Trial and Deposition Boot Camp.

Presenters: John W. Whitman, Jennifer E. Davis, and David A. Couch  

 

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GLM DETROIT IS MOVING!

The new address for our Detroit office will be:

1155 Brewery Park Blvd.

Suite 200

Detroit, MI 48207

The new office space is known as Brewery Park and is at the site of the old Stroh Brewery (now Crain Communications).

We will be in our new location on Monday, June 29th, 2015.  All contact information for Detroit office employees will remain the same.  (Phone numbers and email address(es) will not change.)

The firm has long been committed to educating its clients in various areas of the law.  The new property, which is only a few blocks from our current location, will include a high-tech instructive classroom and space to have Webinars and connect digitally with clients across the country which will enable us to take educating our clients to another level.

To Register for your company’s individually tailored seminar please contact John Gillooly at 313.446.1530 or jgillooly@garanlucow.com

We look forward to serving each and every one of you in our new home.