In the September 2017 decision Lemmerhart v. Marciniak, a slip and fall on snow and ice case, the plaintiff argued that the open and obvious defense was inapplicable because he had pled ordinary negligence versus premises liability.
In this respect, the Michigan Court of Appeals affirmed that the open and obvious doctrine applies to all conditions that deal with “an allegedly dangerous condition on the land.” The appellate court distinguished the situations by noting that the only way to allege a separate negligence/ordinary tort claim would be to allege the plaintiff's injury was somehow attributed to something unrelated to land such as the defendant having pushed the plaintiff causing him to slip and fall.
This case further affirmed, but the appellate court noted its displeasure by applying open and obvious to the snow and ice conditions. Specifically, the appellate court indicated that the open and obvious defense should not apply to all snow and ice conditions, but it somewhat conceded that that is the current state of the law pursuant to the Michigan Supreme Court, and it must be followed. Thus, dismissal of all the plaintiff's claims was affirmed.
This case is an important reminder of the current state of Michigan premises liability law and the fact that plaintiffs cannot avoid strong defenses by attempting alternative applicable pleading.
Christopher J. Scott is a partner in the firm's Flint office who focuses his practice in all areas of law concerning personal injury, property damage or commercial liability, including premises liability, construction ...
Add a comment
SubscribeRSS Plunkett Cooney LinkedIn Page Plunkett Cooney Twitter Page Plunkett Cooney Facebook Page
- Premises Liability
- Retail Liability
- Commercial Real Estate
- Open & Obvious
- Open & Obvious Doctrine
- Snow & Ice Claims
- Liquor Liability
- Risk Management
- Residential Liability
- Real Estate
- Business Risk Management
- FDA Regulations
- Food Law
- Foodservice & Hospitality
- Regulatory Law
- Constructive Notice
- Governmental Immunity
- Motor Vehicle Liability
- Court Reinforces Principle That Landowners Generally Have no Duty to Prevent Criminal Acts
- Don't Drink and File... a Lawsuit
- Michigan Court of Appeals Affirms Black Ice Remains Open and Obvious
- Phantom Employees Create a 'Question of Fact' for Notice Defense
- Social Media can Derail Defense of Your Premises Liability Case
- The Down and Dirty on Manufacturing Clean Foods, Using Clean Labeling
- Heads up! Baseball, Hotdogs and… Personal Risk at the Ball Park?
- Court Reluctantly Confirms Open and Obvious Doctrine in Ordinary Negligence Claims Involving Snow and Ice
- Low Light and Black Ice Does Not Avoid Open and Obvious
- Gift of the Magi-ority: Supreme Court Hands Premises Owners Golden Opinion on Notice Defense