The Law

Perfection Is Neither Practical Nor Required by Ron Davis Icy winter conditions often simply require that a visitor to a shopping center use good judgment while entering and exiting the facility. That means avoiding known slippery areas that might cause the visitor to fall and suffer an injury. That advice recently was tested at a Michigan shopping center when a patron slipped on ice and fell. He blamed the center’s owners for his resulting injury, claiming that they were negligent for failing to remove the ice. The shopping center is Brownstown Shopping Plaza in Detroit, and the patron had driven there to return a purchase made at a tenant’s store. The temperature at the time was below freezing, but apparently there had been no precipitation for the past two or three days. Despite the frigid weather, however, the patron said he observed no icicles, ice formations, or mounds of snow in the parking lot of the center’s property—only a ramp “that appeared to be damp.” Nevertheless, when he tried to walk up a blue-painted handicap ramp, he slipped and fell. The fall resulted in a broken ankle. Michigan law requires a landowner to provide “reasonable care to protect invitees” from unreasonable risks of harm posed by dangerous conditions on the owner’s land. State law also provides liability for a breach of that duty of “ordinary care” to visitors when the landowner knows or should know of a dangerous condition. That’s especially true if the visitor is unaware of the condition and the landowner fails to fix the defect or warn the visitor of that defect. In the resulting lawsuit, however, the judge hearing the case dismissed the charges against the shopping center owners. The injured shopper appealed, arguing that the judge had not accounted for the dangerous weather conditions and the fact that the area where he fell was not properly cared for. The Court of Appeals of Michigan agreed with the lower court, explaining, “Perfection is neither practical nor required by law.” The judges explained that “under ordinary circumstances, the overriding public policy of encouraging people to take reasonable care for their own safety precludes imposing a duty on the possessor of land to make ordinary [conditions] foolproof. Thus, an integral component of the duty owned to an invitee considers whether a defect is ‘open and obvious.’” Added the court, “The possessor of land owes no duty to protect or warn of dangers that are open and obvious because such dangers, by their nature, apprise an invitee of the potential hazard, which the invitee may then take reasonable measures to avoid. Whether a danger is open and obvious depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection.” The judge concluded that “the open and obvious nature of the danger negated the shopping center’s duty to warn or protect, leaving no factual question to resolve at trial. (Bath vs. Brownstown Shopping Plaza, LLC, 2015 WL 7220995 [Mich.App.] Decision: January 2015 Published: February 2015