TorteDeForm

Cyrus Dugger

Michigan’s Open & Obvious Land

From the Michigan Bar Journal:

John Braden's Open and Obvious Land (a satirical critique of Michigan "open and obvious doctrine").


I awoke to a bright light in my eyes. Then a face with a sardonic grin hove into view. The face spoke: ‘‘Do you know
where you are?’’ I looked around at the gurneys and white coats. ‘‘A hospital? How did I get here?’’

‘‘We found you outside the entrance, lying on some black ice.’’

My memory started to clear. ‘‘I didn’t see the ice,’’ I said.

‘‘You could have seen it if you looked.’’

‘‘I did look,’’ I protested. ‘‘But it was invisible.’’

He snorted. ‘‘As if that makes a difference. A danger need not be ‘visually apparent’ to be open and obvious,’’ he said, as if reciting a mantra. ‘‘Anyway, you saw the ice after you fell, didn’t you?’’

‘‘Why, sure. Falling tends to draw your attention to such things.’’

‘‘Well, if you could see it afterwards, then it must have been open and obvious before.’’ I let the non sequitur pass.

‘‘You keep saying ‘open and obvious’,’’ I replied. ‘‘Assuming the black ice was ‘open,’ it sure wasn’t ‘obvious’.’’

‘‘Your grasp of our language is rather shaky,’’ said the man in the white coat. ‘‘ ‘Open and obvious’ means ‘open or obvious,’ or ‘neither open nor obvious, but foreseeable.’ ’’
Seeing that the orderly was fluent in doublespeak, I moved on.

‘‘Suppose the ice was open and obvious. How was I supposed to avoid it? It stretched all the way across the walk.’’

‘‘You could have picked another day to come here, waited for the ice to melt, or not come here at all. It’s not as if people need medical care. Let them eat cake!’’ Considering the debate won, the orderly resumed his questioning.

‘‘Do you know what state you’re in?’’

‘‘Michigan?’’

He snorted again. ‘‘Who are you? Rip Van Winkle? This hasn’t been Michigan for 20 years. It’s called OpenandObvious Land now.’’

I was really confused now. ‘‘I was coming to the hospital, hobbling along because of my arthritis...’’

‘‘Don’t matter,’’ he interrupted. ‘‘In Michigan, landowners had to take foreseeable infirmities into account. But in OpenandObvious Land, everyone is hale and hearty. We can all play hopscotch to avoid dangerous spots. Our lame can walk!

‘‘Our vision, too, is phenomenal. We can see in the dark. We can see ice or other dangers under snow. Our eyes can pierce the murky depths. We can see around corners. We can see through other objects. We can simultaneously see in multiple directions.
We have eyes in the backs of our heads. We can even see things that are apparent only from the viewpoint of others! (keep reading)

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Posted at 8:19 AM, Mar 27, 2007 in
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