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Facts – Plaintiff’s decedent was killed in a multi-vehicle accident. The facts indicated that Defendants had been traveling at or below the posted speed limit, had reached the top of a slight crest in the road and found their lane of travel blocked by a vehicle which had been involved in a prior collision. The jury returned a verdict of no cause of action. The Court of Appeals upheld that verdict, indicating that a reasonable juror could find that Defendants were not negligent under the sudden emergency doctrine. Plaintiffs also argued that the Defendants were "out–driving" their headlights, which constituted negligence as a matter of law. The Court disagreed, especially because of the fact that this accident occurred on a limited access interstate freeway, which was designed for vehicles to travel at a higher and more uniform speed. Foust, et al v Matejek, et al, Michigan Court of Appeals Unpublished Decision dated October 5, 2004, Docket No. 246437.

Recommendation – The Court seemed fairly impressed that according to Plaintiff’s own expert, anyone who drives over 40 miles per hour at night on I-75 in a Ford Taurus "out-drives" his headlights. If true, to base a driver’s negligence solely on whether he "out-drove" his headlights, would require a driver to violate the law, by driving below the minimum speed limit, to avoid violating the law regarding being unable to stop in time to avoid objects revealed by their headlights. This absurd result demonstrated the fallacy of Plaintiff’s position. Given the foregoing, it might be advisable to retain the services of an expert in human factors, automobile lighting and/or visibility.

Facts – Jones had been operating her automobile in a northbound lane of Dixie Highway in Saginaw County during the evening hours. The area was well lit. After her vehicle stalled, Jones maneuvered it into the right lane and activated the vehicle’s flashers. Another driver saw her and stopped behind her vehicle to offer help. A State Trooper came upon the scene and he stopped his cruiser behind the other two vehicles. The Trooper activated his emergency lights as well as the driver’s side spotlight. He placed the cruiser in park, got out and talked to Jones and the other driver.

After the other driver left, the Trooper decided that he would try to use his cruiser to push Jones off the road. As he was returning to his vehicle, a motorcycle operated by Amy, with Stewart as a passenger, approached from behind. It struck the rear of the police cruiser with considerable force. Amy was killed and Stewart was seriously injured. The widow of Mr. Amy sought to recover survivor’s benefits. Stewart sought to recover first-party benefits.

The Circuit Court determined that the police cruiser was a parked vehicle within the meaning of MCL 500.3106 at the time of the accident, but that the cruiser did not cause an unreasonable risk of bodily injury within the meaning of MCL 500.3106(1)(a). The Court of Appeals disagreed (Amy v MIC General Insurance Corp., 258 Mich App 94 [2003]).

In reversing the Court of Appeals, the Michigan Supreme Court recognized that there are degrees of risk posed by a parked vehicle. The Court had no doubt that the cruiser posed a risk to other northbound vehicles and their occupants. However, the presence of the cruiser did not constitute an unreasonable risk under the circumstances. Stewart, et al v State of Michigan, 471 Mich 692 (2004).

Recommendation – In making a determination as to whether a parked vehicle presents an unreasonable risk of bodily injury pursuant to statute, one must consider all of the circumstances which existed at the time of the accident. In this case, the cruiser was parked in an area that was well lit, with emergency lights flashing and its spotlight on. The stalled vehicle ahead of it also had its flashing lights on. The speed limit was 45 miles per hour and there was another northbound lane available for the motorcyclist.

Facts – Plaintiff sustained injuries when she fell while descending the steps of a building owned by Defendant. She filed suit alleging that Defendant negligently failed to maintain the premises in a reasonably safe manner by failing to reinstall a handrail to maintain the property in compliance with the building code. The Trial Court granted Defendant’s Motion for Summary Disposition concluding that the condition of the steps was open and obvious, and that Plaintiff could not establish that any violation of the building code proximately caused her fall.

In affirming the Trial Court, the Michigan Court of Appeals indicated that steps are encountered as an everyday occurrence. A reasonably prudent person will watch where she is going and will take appropriate actions for her own safety. The steps on which Plaintiff slipped were not blocked and were equipped with a handrail on one side. Plaintiff stated that she had noticed the condition of the steps when she approached them to enter the building. Nothing about the character of the steps forced Plaintiff to walk on the side that lacked a handrail. Plaintiff did not allege that the height or width of the steps caused her to fall. She failed to demonstrate the existence of any special aspect that made the condition of the steps unreasonably dangerous in spite of their open and obvious nature. Cremeans v Home Properties of New York, Michigan Court of Appeals Unpublished Decision dated October 14, 2004, Docket No. 248006.

Recommendation – To establish causation, a Plaintiff must prove that it is more likely than not that, but for the Defendant’s breach of duty, the injury would not have occurred. The "possibility" that a breach of the building code by Defendant caused Plaintiff to sustain injuries is not sufficient to establish causation. A full investigation as to the cause of a potential Plaintiff’s fall should be undertaken as quickly as possible.

Facts – Defendant was hired to install duct and fiber optic cables in Plaintiff’s front lawn. A large white covering was placed over the cables. The next day, Plaintiff was walking backwards while mowing his lawn and tripped near the covering, falling to the ground, sustaining injury. Plaintiff filed suit alleging that Defendant and its agent negligently failed to exercise reasonable care to repair and maintain the area around the covering, and that the improperly installed covering constituted a nuisance.

The Trial Court granted Defendant’s Motion for Summary Disposition based upon the fact that the covering was open and obvious and that no special aspects made it unreasonably dangerous. The Court of Appeals reversed the Trial Court’s decision given the fact that Defendant neither owned nor possessed the property on which Plaintiff’s injury occurred. As such, Plaintiff’s claim involved basic common law negligence principles. Szewczyk v Nextlink, Inc., et al, Michigan Court of Appeals Unpublished Decision dated October 12, 2004, Docket No. 248189.

Recommendation – This Opinion is self-explanatory. In order to take advantage of a premises liability defense such as "open and obvious", one must have some type of ownership or possessory interest in the property. This should be one of the first items of investigation once a potential claim is received.

Facts – Plaintiff and her companions drove to Defendant’s funeral home to attend a co-worker’s funeral. After Plaintiff left the car and while she was walking in the parking lot, she slipped and fell, fracturing her hip. Lighting was described as being dark. The lot surface contained a "dusting" of snow. Plaintiff testified that she could not see the ice until after she fell. It was described as "black ice" – the color of the pavement.

The Trial Court granted Defendant’s Motion for Summary Disposition, finding lack of notice of the alleged hazard, that no genuine issue of material fact existed with respect to whether the condition was open and obvious, and that no genuine issue of material fact existed in regard to whether any special aspects made the condition unreasonably dangerous in spite of its open and obvious condition. The Trial Court relied on the fact that Plaintiff had testified in her deposition that she saw (prior to her fall) others exit the vehicle and hang onto the car. The Court also noted that as a lifelong resident of Michigan, Plaintiff should have been aware that ice frequently forms beneath snow during snowy December nights.

In reversing the Trial Court’s Decision, the Michigan Court of Appeals held that not all snow and ice accumulation is open and obvious. The Court felt that reasonable minds could differ regarding the nature of the black ice under the snow. The black ice at issue (as a latent danger) was not visible, which detracts from a finding that the danger was open and obvious upon casual inspection. The Court also indicated that because other individuals fell in the parking lot, that fact could lead reasonable minds to conclude that the parking lot remained unreasonably dangerous, even assuming that the danger was open and obvious. The fact that the property owner had salted areas of the parking lot and the entrances, suggested that he was aware of slippery conditions on the premises. As such, a question of fact also existed in that regard. Kenny v Kaatz Funeral Home, Inc., et al, 264 Mich App 99 (2004).

Recommendation – This particular Decision appears to be somewhat at odds with prior Appellate Decisions involving the presence of ice and snow. This case however is one of the few which specifically address the presence of "black ice". We shall continue to monitor the status of this particular Decision in the event an application for leave is made to the Michigan Supreme Court.

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