Author(s): James L. Borin, Simeon R. Orlowski, Sarah Roberston

Ms. Robertson is a Partner in the Firm’s Detroit Office and can be reached at (313)446-1530 or srobertson@garanlucow.com FROM THE LAW OFFICES OF GARAN LUCOW MILLER, P.C. Volume XXII, No. 18 June 14, 2010

LAW FAX MICHIGAN LAW – BLUE | INDIANA LAW – RED www.garanlucow.com Garan Lucow Miller, P.C. 1111 West Long Lake Road, Suite 300 Troy, Michigan 48098 248.641.7600

From the Co-Editors James L. Borin & Simeon R. Orlowski

Black Ice, Not Covered By Snow, Is An Open and Obvious Danger Where Other Indicia of the Condition Are Present and No Special Aspects Exist

CONTRIBUTOR – SARAH ROBERTSON

If someone slips on a patch of black ice that is “impossible to be seen,” does the alleged existence of the patch of black ice create a duty on the landowner? The Michigan Supreme Court has ruled it does not, provided other indicia surrounding the patch of black ice exist which would alert an average individual to the possibility that such a condition may be present. In Janson v Sajewski Funeral Home, Inc, on an evening in early March, plaintiff was walking across defendant’s parking lot to attend a funeral when he slipped and fell on what he claimed was a patch of black ice. No snow covered the black ice, but plaintiff testified that defendant’s parking

lot was largely cleared of snow, and snow was present in the area surrounding the parking lot. A light freezing rain and mist had fallen earlier in the day prior to plaintiff’s fall, and the temperature was below freezing all day. Plaintiff was injured as a result of his fall and filed a premises liability lawsuit against the defendant. Defendant then filed a motion for summary disposition arguing that the open and obvious danger doctrine applied.

In reaching its decision, the Circuit Court analyzed the controlling premises liability decisions and rulings rendered by both the Court of Appeals and the Michigan Supreme Court. The Circuit Court highlighted specifically the Supreme Court’s rulings in Kenny v Katz Funeral Home, Inc, 472 Mich 929 (2005), Mitchell v Premium Properties Investments, Ltd, 477 Mich 1060 (2007), and Kaseta v Binkowski, 480 Mich 939 (2007), in which the Supreme Court reversed the findings of the Court of Appeals and adopted the Court of Appeals’ dissents. Those dissents addressed the issue of special aspects reasoning that ice does not pose a high severity of harm or death, and that plaintiffs must show, and did not in those cases, that they were forced to cross over the icy parking lot in order to avoid some other harm. The dissents also set forth other indicia that should be considered in determining whether a patch of black ice is an open and obvious condition such as plaintiff’s lifetime experience with Michigan winters, precipitation falling earlier in the day, fluctuating or consistently freezing temperatures, witnessing others slipping on ice, and the presence of snow in the area where plaintiff fell.

The Circuit Court, relying on those decisions, found that the condition of black ice in this case was open and obvious in light of the other indicia surrounding the condition, and that no special aspects of the condition existed. Therefore, defendant was entitled to, and awarded, summary disposition. Plaintiff appealed. The Court of Appeals reversed the Circuit Court’s order granting summary disposition in favor of defendant. Rather than addressing, distinguishing, or relying upon the Supreme Court’s rulings set forth above, the Court of Appeals instead relied only on the recent, published Court of Appeals’ decision in Slaughter v Blarney Castle Oil Co, 281 Mich App 474 (2008). More than merely relying upon Slaughter, however, the Court of Appeals in this case took one step further.

In Slaughter, the facts established that there was no snow on the ground and there had not been snow for a week prior to plaintiff’s fall. Plaintiff did not see anyone else slip or hold onto an object to maintain balance before she fell. She did not see the ice before she fell, and could not see it readily after she fell. It had begun to rain just prior to her fall, but the Court was not convinced that rain, like snow or ice, was sufficient to wholly reveal the condition and its danger to plaintiff. The Slaughter court found a question of fact regarding whether an average person of ordinary intelligence would have been able to discover the danger and risk upon casual inspection and so affirmed the Circuit Court’s denial of summary disposition.

The Court of Appeals in this case referred to the Slaughter decision in its analysis but altered the Slaughter “test” as to whether other indicia were present. Instead of looking for “other indicia” as the Slaughter Court had done, this Court looked to whether there was “visible indicia” of an otherwise invisible hazard. This Court also took a step beyond the Slaughter Court’s finding that there was a question of fact regarding the existence of other indicia and so a question of fact whether the open and obvious danger doctrine applied, finding instead that the open and obvious danger doctrine did not apply at all. This Court reached such a conclusion in spite of the facts

presented in this case which established that nearly all of the “other indicia” addressed in Slaughter existed.

Defendant filed an application for leave to appeal in the Michigan Supreme Court and oral argument was held on the application. On May 28, 2010, the Supreme Court entered an Order reversing the Court of Appeals and reinstating the Circuit Court’s order granting summary disposition in favor of defendant. The Supreme Court found that the Court of Appeals had failed to adhere to the governing precedent established in Slaughter which renders black ice conditions open and obvious when there are indicia of a potentially hazardous condition present at the time of the plaintiff’s fall. Noting the indicia present in this case – that the fall occurred in winter, that temperatures were below freezing at all times, that snow was present around defendant’s premises, and that mist and light freezing rain were falling earlier in the day – the Supreme Court held that such wintry conditions by their nature would have alerted an average user of ordinary intelligence to discover the danger upon casual inspection. The Supreme Court further found that no special aspects of the condition existed where the patch of black ice was avoidable and not unreasonably dangerous.

The Supreme Court’s Order in this case was not unanimous. Justice Kelly would have affirmed the result reached by the Court of Appeals finding summary disposition in favor of defendant improper, although Justice Kelly also stated that she believed plaintiff raised a genuine issue of material fact regarding the open and obvious danger doctrine. Analyzing the Court of Appeals decision in this case, however, it does not appear that the Court of Appeals found a question of fact existed at all. Justice Cavanagh and Justice Hathaway would have denied leave to appeal.

It is possible that plaintiff will pursue further appellate remedies by way of filing a motion for reconsideration in the Michigan Supreme Court. For now, however, it seems obvious that black ice, where other indicia are present, is an open and obvious condition so that the defendant premises owner does not owe a duty to a plaintiff invitee to maintain its premises or warn of the condition of black ice. Such a duty would only be owed if the open and obvious condition were found to have special aspects which make the condition unreasonably dangerous or effectively unavoidable.

In addition, it should be noted that the Michigan Supreme Court has scheduled oral argument on whether to grant the Application for Leave to Appeal filed in Brown v Taubman Company LLC, et al. (Unpub, COA No. 283521). The Court has asked the parties in that case to address (1) whether indicia of a potentially slippery condition are sufficient to make so-called “black ice” open and obvious, as explained in Slaughter v Blarney Castle, and (2) if so, whether the Court of Appeals erred by concluding that these indicia could be counteracted by the plaintiff’s own representations about weather conditions on the date of her fall, thereby creating a question of fact about whether the alleged hazard was open and obvious. It appears the final word on “black ice” has not yet been spoken. 2Ms. Durkee is a Law Clerk in the Firm’s Troy Office and can be reached at (248)641-7600 or edurkee@garanlucow.com

Termination of the Foster Child/Parent Legal Relationship CONTRIBUTOR – ELLEN DURKEE2 We were recently requested to comment on an order of priority question, specifically whether a foster child who had reached the age of majority would be considered a “relative” in the household of the named insured. In this particular case, the named insured was awarded legal guardianship of the foster child as an infant. The foster child continued to reside with the named insured and was 19 ½ years of age when he was injured in a motor vehicle accident. The issue presented was whether the legal relationship between a foster parent and child is terminated automatically upon the child’s 18th birthday or whether a court order would be required to effectively end the legal relationship.

Under MCL 712A.19a of the Probate Code of 1939, a guardian appointed by the court has the same rights and duties set forth in MCL 700.5215 of the Estates and Protected Individuals Code. Further, pursuant to MCL 700.5217, this guardianship terminates “upon the guardian’s death, resignation, or removal or upon the minor’s death, adoption, marriage, or attainment of majority.”

Accordingly, because the foster child was emancipated, having surpassed the age of majority, no legal foster child/parent relationship existed. Therefore, he did not qualify as a resident relative under the provisions of MCL 500.3114(1), or the definition of “relative” in the policy of insurance.

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BACK TO BACK WINS FOR DAVID WILSON OF OUR INDIANA OFFICE On May 24, 2010, David Wilson tried an underinsured case with mother and daughter plaintiffs. Prior to trial, it did not appear likely that the plaintiffs would reach the underinsured coverage, and the carrier agreed to waive its med pay in exchange for dismissal. Based upon per diem calculations, the plaintiffs requested future medical and permanency awards of approximately $130,000.00 for the minor plaintiff and slightly in excess of $70,000.00 for the mother. After 2 hours of deliberations, the jury first asked whether they could render a finding for the defendant but award zero in damages. After being instructed to follow the evidence, the jury returned a verdict for the defendant. The Plaintiffs’ cause was likely damaged by a chiropractor who had rendered treatment to both plaintiffs for more than 4 years, and when asked why the bills for the last 2 years of treatment were not produced (and which were allegedly lost), the

chiropractor testified that he informed the plaintiffs he would “wait and see what the verdict was.” The chiropractor further did not endear himself with the jury, which consisted of two nurses, when the he discussed treatment of minors and stated he had been present during home births and rendered chiropractic treatment on new born infants.

The following week David Wilson defended an underinsured motorist claim with admitted liability of the underinsured driver and following settlement with that underinsured driver for the policy limits of $20,000.00. The plaintiff had medical bills slightly in excess of $15,000.00. The plaintiff’s son had settled his claim the week prior to trial for an amount within the underinsured driver’s limits and dismissed his underinsured motorist claim. Plaintiff claimed permanency based upon a cervical disc herniation. Plaintiff’s pain management physician testified that the condition was permanent, and plaintiff requested $169,000.00 in additional funds over the underinsured limits of $20,000.00. After 25 minutes of deliberation, the jury returned a verdict for the defendant.

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Upcoming Seminars ANNUAL TROY BREAKFAST SEMINAR Thursday, September 23, 2010 at the Troy Marriott. Agenda to follow at a later date.

******************************** SAVE THE DATE

The 3rd Annual Cherry- Roubaix Race, sponsored by Garan Lucow Miller, P.C., will be held on Saturday and Sunday, August 28th and 29th, 2010, through the historic streets in the heart of Traverse City.

Mark your calendars to join us at this exciting event. If you have any questions or would like additional information on this race, please go to www.cherry-roubaix.com or contact Peter Worden, in our Traverse City office at: (231) 941-1611.

SAVE THE DATE Event: Garan Lucow Miller’s Annual Golf Outing Date: Tuesday, August 24, 2010 Venue: Forest Akers West Golf Course on the campus of MSU Banquet dinner to be on campus at the University Club

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Garan Lucow Miller, P.C., a full-service law firm since 1948, providing quality representation to a national clientele from the Great Lakes Region, is pleased to announce that it has opened an office in Merrillville, Indiana, to further facilitate your claim and litigation needs in Indiana and Illinois.

Garan Lucow Miller, P.C. 8401 Virginia Street Merrillville, Indiana 46410 Phone: 219.756.7901 Fax: 219.756.7902 Toll Free: 877.804.2801