Author(s): Sarah Robertson

A NEW VIEW OF OPEN AND OBVIOUS

In a recent, published, decision by the Court of Appeals, a new day may be dawning in the area of premises liability law in the State of Michigan. The decision may foreshadow changes in the application of the open and obvious danger doctrine given the fact that Chief Justice Clifford Taylor was not re-elected to the Michigan Supreme Court. In Slaughter v Blarney Castle Oil Company (COA No. 283266, 11/6/08), the Court of Appeals held that black ice without the presence of snow is not an open and obvious danger.

In Slaughter, plaintiff fell while an invitee at defendant’s gas station on December 31, 2004. There had been no snow during the day prior to plaintiff’s fall, and no snow in the week prior to plaintiff’s fall. Plaintiff was attempting to exit her vehicle when her left foot slipped on black ice and she slid under her vehicle. Plaintiff did not see ice or snow. The parking lot of the gas station was paved in black asphalt. It had started to rain at the time of plaintiff’s fall.

The Court of Appeals reviewed all of its previous decisions regarding the application of the open and obvious danger doctrine to conditions of snow and ice. The Court noted that in each decision finding that the open and obvious danger doctrine did apply, there was either snow, snow-covered ice, or observable ice present. In the present case, however, there was simply black ice. The Court then analyzed the definitions of

black ice resolving that the overriding principle behind the many definitions of black ice is that it is either invisible or nearly invisible, transparent, or nearly transparent. Finding that such a definition is “inherently inconsistent”with the open and obvious danger doctrine, the Court declined to extend the doctrine to black ice without evidence that the black ice in question would have been visible on casual inspection prior to the fall or other indications of a dangerous condition.

While not deciding to extend the application of the open and obvious danger doctrine to black ice, the Court did address the continued need to analyze and consider the circumstances and specific weather conditions present at the time of each plaintiff’s fall. As a result, the Court agreed with the Circuit Court that a question of fact existed regarding whether an average person of ordinary intelligence would have been able to discover the danger and risk upon casual inspection. What remains to be seen is whether, given the result of the recent election, this case will be brought before the new Michigan Supreme Court on Application for Leave to Appeal. We will keep you posted on any developments as they occur.