Author(s): Sarah Robertson

The Outcomes in Michigan Black Ice Cases Are Becoming Far Less Obvious

As a result of two recent Court of Appeals decisions, the law in Michigan regarding the application of the open and obvious danger doctrine to cases involving slips and falls on black ice has become even less clear to the average, casual observer, inviting closer scrutiny by all involved and leading to what seems now to be an inevitable change.

In Brown v Taubman Company, LLC (Unpub, COA No. 283521, 9/24/09), plaintiff alleged that she slipped and fell on the walkway leading to the entrance of a mall owned by defendant Taubman. Taubman was granted summary disposition by the Circuit Court upon a finding that the black ice was open and obvious. The Court of Appeals, however, reversed that decision finding a question of fact existed as to whether the black ice was open and obvious. Plaintiff had testified that there was no snow on the ground to alert her to the possibility of ice. Another witness, David Gagnon, testified there was snow in the shrubbery adjacent to the walkway. Plaintiff testified it was dark where she fell so she could not see the ice, although she spotted it later without difficulty when the area was illuminated by headlights. Gagnon testified he could not see ice at all but salted the area in which he was told the ice was located. Weather records indicated a daytime temperature hovering around freezing. Based upon these facts alone, the Court found a question of fact existed as to whether the alleged black ice upon which Plaintiff fell was open and obvious.

In Janson v Sajewski Funeral Home, Inc., ___ Mich App ___; ___ NW2d ___ (8/25/09), plaintiff slipped and fell on black ice in defendant’s parking lot. The Circuit Court granted summary disposition in favor of defendant finding the ice to be an open and obvious condition. The Court of Appeals, however, reversed that decision. The Court first noted that there had been light precipitation throughout the morning on the day Plaintiff fell, and that temperatures had been below freezing all day. The roads were clear, and defendant’s parking lot had been largely cleared of snow. Defendant’s operator believed there was no more ice remaining on the lot by afternoon, having salted in the morning. There was also a witness who testified that he had difficulty navigating defendant’s parking lot just prior to Plaintiff’s fall because there was black ice everywhere. The Court then cited to previous Michigan cases where ice under snow had been found to be open and obvious, where observing other people slipping on ice should constitute sufficient warning to make the ice open and obvious, and where ordinary ice may be visible and so open and obvious. The Court relied, however, on one decision – Slaughter v Blarney Castle Oil Co, 281 Mich App 474 (2008), which found that absent some other visible indicia of an otherwise invisible hazard, black ice per se cannot be open and obvious. The Janson Court found nothing in the record to indicate that Plaintiff saw anyone else slip on the parking lot surface, nor did it find any indication that there was any snow around the area where plaintiff fell. Therefore, based on the facts as the Court viewed them, the condition of black ice was not open and obvious and the Circuit Court erred in applying that doctrine.

In analyzing the two cases above, in which very similar fact patterns were found including ice that could be seen after some inspection, freezing temperatures all day, snow in the areas near the location of the fall but not on the ice, and a plaintiff that did not see anyone else fall, the Brown Court found a question of fact, while the Janson Court took its analysis a step further and found no question of fact that the condition was not open and obvious. These decisions have added more confusion to an already less than obvious legal test, particularly in light of the fact that Janson is a published, and therefore binding, decision. Where the “other indicia” test created in Slaughter remains good, and controlling, law in light of the Supreme Court’s decision not to review that decision on Application, there was at least some guidance for the Court of Appeals in determining whether a condition of black ice might be open and obvious. However, with the new decision in Janson, where “other indicia” were present but were seemingly given little or no deference by the Court, the question of how to determine whether a condition is open and obvious – and therefore whether a land owner owes a duty to an invitee – remains anything but obvious.

ORV Owners Involved in Single ORV Accidents Are Entitled to PIP Benefits

In Shankster v Farm Bureau Mutual Insurance Co, the Court of Appeals affirmed the Circuit Court’s decision granting plaintiff’s motion for partial summary disposition and declaring that defendant was liable to plaintiff for no-fault PIP benefits. Originally, defendant’s filed an Application for Leave to Appeal with the Court of Appeals that was denied when the Court found no need for immediate appellate review. Defendant then filed an Application for Leave to Appeal in the Michigan Supreme Court and, in lieu of granting leave to appeal, the Supreme Court remanded the matter back to the Court of Appeals for consideration as if on leave granted.

Plaintiff was injured while operating an off-road vehicle (“ORV”) when she was involved in a single-vehicle accident. Defendant first argued that plaintiff was not entitled to PIP benefits because no “motor vehicle” was involved in the accident. The Shankster Court noted that the No- Fault Act, in defining a motor vehicle, did not specifically include or exclude ORV’s. The Shankster Court then noted that, although ORVs are exempt from No-Fault Act insurance requirement – i.e. that all motor vehicles must be insured under MCL 500.3101 – a failure to carry insurance does not cause a forfeiture of PIP benefits. For this proposition, the Court relied upon Nelson v Transamerica Ins Services, 441 Mich 508 (1992), a case in which the ORV was involved in an accident with another motor vehicle. According to the Shankster Court, an ORV may still qualify as a “motor vehicle” for purposes of the No-Fault Act and an ORV owner may be entitled to no-fault coverage even where the ORV is not specifically covered by an insurance policy. For these propositions, the Court relied upon Morris v Allstate Insurance Co, 230 Mich App 361 (1998), a case in which an ORV was considered a “motor vehicle” because it was being operated upon a highway. The Shankster Court held that even though an ORV is exempt from the No-Fault Act insurance requirement, the ORV owner is not precluded from obtaining PIP benefits under the No-Fault Act.

The Court then addressed defendant’s second argument – that the 2008 amendment specifically excluding ORV’s from the definition of a “motor vehicle” under the No-Fault Act should be given retroactive application in this case. The Court found that the amendment was not intended to clarify legislative intent in light of the fact that the first case to consider the exemption of ORVs from the No-Fault Act, Michigan Millers v Farm Bureau Gen Ins Co, 156 Mich App 823 (1987), was decided by the Court of Appeals in 1986 and 20 years had passed since that decision without the Legislature opting to clarify or amend its language or intent. Accordingly, the

Shankster Court viewed the 2008 amendment as a change in the law, not a clarification. Moreover, the Court found that the amendment, if applied retroactively, would have an effect on plaintiff’s substantive rights. Under the former statute, the plaintiff would have a right to PIP benefits. Under the amended statute, plaintiff does not. In reaching this decision, the Court did not analyze whether PIP benefits were a substantive right at all, but rather simply declared them to be so.

Finally, the Court addressed defendant’s argument that the former provisions of the No- Fault Act are unconstitutional on due process and equal protection grounds. The Court disagreed with defendant, finding that under the rational basis test, the No-Fault Act is constitutional where it furthers a legitimate government interest of ensuring that motorists driving on Michigan roads obtain prompt payment for economic losses in exchange for some limitation of tort liability, even if those motorists are driving exempt vehicles. The Court addressed the distinction between vehicles in general, and the exempt vehicles such as ORVs, noting that the distinction is attributed to the fact that the normal use for each vehicle is different. Vehicles in general are designed for use on highways and public roads. ORVs are not. However, ORVs are occasionally used on public roadways and so, in the rational of the Court, the Act allows coverage for drivers of ORVs to ensure they are provided prompt payment in case of an accident on a public highway. It appears not to matter to the Court at all that plaintiff was no injured on a public highway in this case. The Court also disregarded defendant’s argument that it had not anticipated the risk involved with insuring an ORV operator or occupant. The Court found that coverage required for uninsured ORV operators is the same as for operators of uninsured vehicles in general and, in either case, defendant would have to provide coverage.