Michigan’s ultra-conservative courts are at it again.
Michigan's ultra-conservative courts are at it again. This time, the Michigan Court of Appeals has deemed hidden dangers to be "open and obvious." Yep, you read that right. Hidden dangers are both "open" and "obvious." We have crossed over into Wonderland, folks. In the area of premises liability, you can no longer rely on the rule of law to hold dangerous, stupid and negligent people accountable for their dangerous, stupid and negligent conduct.
For context, here's a quick primer on premises liability. Generally, people who make money from you coming onto their premises (land, building, store, etc.) have a duty to exercise reasonable care in protecting you from an unreasonable risk of harm created by a defective condition on their premises or land. The idea is that they are familiar with the premises (they own it), you are not (you come only periodically to shop), and the burden ought to be on them to make sure the place doesn't collapse while you're in it. Seems simple enough. Seems like a fair place to draw the line.
As a practical matter, this means that the owner of the premises will be held responsible if s/he cuts a hole in the floor and covers it with a carpet, causing you to fall into the basement when you step on what looks like carpet on the floor. It also means that business owners must follow city codes so that when you grab the hand rail to the steps, you can be assured that it does not contain a gazillion volts of live electricity. Until this week, it also meant that when crossing a parking lot, you were entitled to walk without worrying that the concrete might crumble under your feet the moment you put weight on it.
Of course, there's accountability on both sides. We have another judge-created law that protects premises owners from defects that are "open and obvious." In other words, if upon casual inspection you would detect the potential danger, or, for example, the reason you fell or were injured was because you weren't paying any attention to where you were going, then you can't blame the premises owner.
On April 15, 2008, a panel of Michigan's Court of Appeals handed down the latest of a long line of opinions that have slowly inched the line away from people who have been injured by negligence toward complete protection for business owners for their negligent failures to protect from hidden dangers. The new case, Baker vs. Tendercare, involved a woman who was visiting her mother at Tendercare's nursing home. As she exited her car and began to walk into the facility, she stepped on a portion of concrete that had a crack on it that appeared harmless. Unbeknownst to her, the concrete was crumbling and in poor condition. The concrete crumbled, she fell, and she was badly hurt when her head hit the side of a car and she broke her wrist.
Tendercare tried to have the case dismissed without the benefit of a trial (in which Tendercare would have been entitled to present evidence and argue it was not responsible). Let me put that another way: All this woman wanted was her day in court to try and prove to a jury that Tendercare was negligent. Tendercare was fully able and entitled to defend itself. Instead, the Court of Appeals used this opportunity to slam the courthouse doors in the injured woman's face. In analyzing the case, the Court of Appeals had the audacity to state:
Just because the defect is hidden does not also mean that it is not discoverable by the average user.
Translation for non-lawyers: Premises owners shouldn't have any real duty to protect you from hidden dangers, even if they know about them or ought to know about them. If you, at each and every step, could conceivably stoop down and, upon inspection, see a potential defect that might cause you to fall, then they have no responsibility whatsoever, even if the condition is dangerous, hidden, and they knew or should have known about it.
Trouble is, nobody conducts themselves in such a manner. Business owners obtain insurance so that the risk is pooled and taxpayers don't end up paying the tab for negligent injuries. We have city codes and standards to make parking lots and sidewalks uniform. One of the reasons that we make them uniform is to make it easier to see a defect, no doubt because we would prefer to prevent these injuries. Yet our courts now hold you and I responsible for the defects that we would never see unless we either already knew of them, or were specifically attempting to detect them.
Yet again, our conservative Michigan judiciary ignores human behavior, reality, and instead confers a new benefit upon the business community at the expense of individuals.