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 pleaded 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.
- Partner
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 liability ...
Add a comment
Subscribe
RSSTopics
- Civil Litigation
- Property Liability
- Premises Liability
- Litigation Discovery
- Fraud Activity
- Fire Claims
- General Liability
- Residential Liability
- Appellate Law
- Motor Vehicle Liability
- Commercial Liability
- Insurance
- Investigations
- Governmental Immunity
- Water Loss Claims
- Contractor Liability
- Design Defect
- Lost Earnings
- Industrial Liability
- Video Recording
- Defamation
- Retail Liability
- insurance policy
- Commercial Real Estate
- Open & Obvious Doctrine
- Snow & Ice Claims
- Professional Liability
- Open & Obvious
- Liquor Liability
- Risk Management
- Negligence
- Business Risk Management
- Independent Medical Examinations (IME)
- Sports-liability
- Alternative Dispute Resolution (ADR)
- Auto Liability
- Bankruptcy
- Judicial Estoppel
- No Fault Liability
- Trucking Liability
- Intoxication
- Wrongful Death
- Real Estate
- FDA Regulations
- Food Law
- Foodservice & Hospitality
- Regulatory Law
- Constructive Notice
Recent Updates
- Property Claims Professionals can Minimize Paying Penalty Interest by Doing This
- Arc Mapping Provides Key Fire Insurance Claim Cause and Origin Information
- If the Bark is Just as Bad as the Bite, is Open and Obvious a Possible Defense?
- Explosions – Sometimes They Need an Introduction
- Design Defect Claims Cannot Defeat a Defense of Governmental Immunity Under Public-Building Exception
- Fire Investigations and the Internet of Things
- Michigan Court of Appeals Addresses Recoverability of Lost Earnings in Wrongful Death Cases Involving Minors
- Dust Bunnies Could do Much More Than Take a Licking in Commercial, Industrial Settings
- Lithium-ion Batteries Challenge Investigators to Determine Causation in Fire Claims
- Failure to Understand Contract Fire Provisions Could Burn Construction Contractors