It can be difficult to understand what is open and obvious. In Michigan, something small like a piece of fruit on a grocery store floor can be considered open and obvious. On the other hand, something as large as a pallet is not necessarily open and obvious.
The Michigan Court of Appeals recently provided clarity regarding the open and obvious nature of black ice which, by definition, cannot be seen. In Gaeth v TEG Central Park Place, LLC, Docket No. 34154, the appellate court was recently asked to reconsider whether black ice is open and obvious. The appellate court affirmed summary disposition holding black ice was open and obvious, essentially saying, something which cannot be seen is open and obvious.
In Gaeth, a tenant slipped and fell on black ice on the sidewalk at his apartment complex. Because of the parties’ relationship, MCL 554.139(1)(a) required the sidewalk to be fit for its intended use. The court applied the holding in Allison to the instant case. That is, the sidewalk had to be fit to be walked on, and snow and ice coverage did not render the sidewalk unfit.
Still, the tenant argued he could not see the black ice and summary disposition was improper. The tenant testified the temperatures were below freezing and there had been melting conditions the day before.
Considering the Michigan Supreme Court’s order in Janson, the appellate court found those wintry conditions, by themselves, were enough to put an average user of ordinary intelligence on alert that black ice could be present upon casual inspection.
Basically, as Michiganders, if there is a period of high temperatures which cause ice or snow melt followed by freezing temperatures, we should know black ice can form. And because of that knowledge, black ice is open and obvious.
What this means is a condition does not have to be obvious in the literal sense of the word to be considered open and obvious under the law. Sometimes the circumstances are present to alert a reasonable person of the condition without having to actually see it.
Legally speaking, then, that’s how something that cannot be seen is open and obvious.
An attorney in Plunkett Cooney's Bloomfield Hills office, Brian K. Mitzel is a member of the firm's Torts & Litigation Practice Group. He concentrates his litigation practice primarily in the areas of premises liability, property ...
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