On April 19, 2007, the Michigan Court of Appeals issued an unpublished opinion in the case of Hernandez v Studio Plus Properties, Inc. and D and R Property Maintenance, LLC (No. 272658). Just another in the continuing series of terse, “Open and Obvious” decisions coming out of Michigan courts of review over the past dozen years. A little less than two and one-half pages in length, a little less than anything in the way of legal analysis. Recite a few facts, add some boilerplate, slap on the Open and Obvious tag and affirm the Circuit Court’s Summary Disposition Order. Ho-Hum.
For those who might actually be interested, the Hernandez case was a slip and fall on ice case. The plaintiff was a Texas resident, who came to Michigan on business on a fairly regular basis. Overnight, on February 23, 2003, it had snowed 13 inches overnight. Ms. Hernandez, when attempting to leave the hotel, could not use the door closest to her room as it could not be opened because of the snow. She then went to the front door. There had been some snow removed there. The concrete slab outside the door had been cleared and though the parking lot was still snow-covered, a path, two or three feet wide had been cleared from the entrance in the direction leading to her car. The path had been cleared to the pavement, but there did not appear to be any salt on the path. Ms. Hernandez took a step of the concrete slab onto the path, and slipped and fell backwards on clear ice. The extent of her resulting injuries, not being an issue of relevance to the court, was not disclosed.
Ms. Hernandez brought a claim against the hotel and the snow removal service. The circuit court granted summary disposition on both claims, and the Court of Appeals affirmed. Back in the dark ages, when there were such things jury trials and long forgotten doctrines like comparative negligence, a panel of good Michigan yeomen and women might have been convened to listen to and assess the evidence in this case and render the decision in this matter.
They might have decided that, in the face of 13 inches of snow, the hotel did a reasonably good job trying to remove the snow, and maybe they shouldn’t be held liable for not being able to remove everything. They might have decided that the hotel might not have known that there was a patch of invisible ice on part of the path that had been shoveled and the hotel might not be liable. They might have decided that Ms. Hernandez could have been a little more careful under the circumstances and should be held partly responsible for her accident. On the other hand, heaven forbid, they might have decided that the hotel was negligent under the circumstances, and rendered a verdict for the plaintiff.
In order to avoid this last horrible possibility, the reviewing courts in this state must devise a method to take the judgment of its citizens out of the equation. They have done so. In premises cases, this is accomplished, in most cases, by the application of the “Open and Obvious” doctrine. Absent special circumstances, the hazards presented by snow and ice are open and obvious and do not impose a duty on the property owner to warn of or remove the hazard. Corey v Davenport College of Business (On Remand), 251 Mich App 1, 5-6 (2002). The Hernandez Court also quoted from the case of Teufel v Watkins 267 Mich App 425 (2005), for the proposition that where there is snow in winter in Michigan, there is likely to be ice and the presence of snow puts a person on notice that there may be slippery conditions.
So, where there is ice and snow, Michigan Courts need never submit any issue to the jury. Hurrah for the insurance company, and Hurrah for the corporation. The citizen may not be so joyous. Nor should anyone at all concerned about the protection of individual rights.
But back to Hernandez. In Open and Obvious cases, Courts have held that the test to determine whether a condition is open and obvious is an objective one, without consideration of subjective factors, by which they mean without consideration of the facts of the case. We might need a jury for that, and a jury is to be by all means avoided. Given that, it has always seemed odd to me that, in snow and ice cases, the Courts love pointing out that the plaintiff, as a Michigan resident, has some sort of special knowledge about winter conditions. Sounds like a subjective factor to me, but I am not a judge and I am sure I must be incapable of appreciating the finer legal distinctions.
Ms. Hernandez, however, was a Texas resident, in Michigan on business. What now? Well, because she came to Michigan on business with some frequency (how frequently or during what months she came is not discussed), she was imputed with that same knowledge of Michigan winters all Michigan citizens are supposed to have. Ms. Hernandez has, by this decision, become an honorary citizen of the State of Michigan, with all the rights and privileges appertaining thereto. These would include the right to have your case thrown out without consideration of the facts, a right the rest of us enjoy. Perhaps the Michigan Chamber of Commerce could issue some sort of certificate of honorary citizenship for Ms. Hernandez, and put together a nice basket of Michigan products and present it to her along with her Court of Appeals decision. Perhaps they could also provide a packet of promotional material to encourage her employer to do more business in Michigan.
Now it seems to me that the determination of how much contact an out of state visitor has to have with Michigan to be imputed with knowledge of Michigan winters is an issue of fact to be determined by a jury. It appears that the Hernandez court was not bothered by this. Ms. Hernandez must have had enough contact with Michigan to make her an honorary citizen of Michigan as a matter of law. Soon we may see cases determining, as a matter of law, how much contact with Michigan citizens of other countries need have before they are considered, as a matter of law, Michigan citizens for purposes of having there injury cases summarily disposed of. Maybe there will be a case that holds that all people living in countries north of the 30th degree of latitude, north of the equator and south of the 30th degree of latitude south of the equator, are irrefutably presumed to have knowledge of Michigan weather conditions on their first visit.
This kind of thing has been done by Michigan Courts before. In Lugo v Ameritech 464 Mich 512 (2001), all potholes and pavement cracks were granted the legal status of being Open and Obvious, as a matter of law. Now there is no need to look at the individual facts of a case or look at the claimed defect. It is now a matter of law, not of fact. Case dismissed. In a recent unpublished decision the Court of Appeals held that grapes on the floor have the status of being Open and Obvious as a matter of law. Whether this doctrine involves bunches of grapes, and single grapes, and purple, green, red grapes, and regular or seedless grapes was not specified. But I can guess. On the other hand, as life long Michigan residents, aren’t we supposed to know that grapes don’t grow in this state in the winter, and therefore we shouldn’t expect them to be present in our state?
There are many things about decisions like Hernandez that bother me. It is amazing that so short an opinion, with so little legal analysis, can raise so many questions. To deal with them all here would require the reader to devote more time than they might want to the subject. But there is one issue I find particularly puzzling. It is a question common to most of these Open and Obvious cases. It is this. If a hazard is Open and Obvious, what is a customer/worker/citizen to do? There is snow and ice outside, or it is cold outside, or it is dark, or it is some month between October and late April. What is a person to do? That question is never really answered by the Courts. I assume the simple answer is: Guarantee that you do not fall, under any and all circumstances. While Bertrand v Alan Ford 464 Mich 606 (1995) states that, “Invitors are not absolute insurers of the safety of their invitees.”, it seems that invitees are now absolute guarantors of their own safety.
So, what should Ms. Hernandez have done in this case if she were a reasonably intelligent person? Several options present themselves. Possible special aspect arguments will be included.
Do not leave the hotel. No slip on ice possible. But what if she had attended to the business for which she traveled to Michigan?
Don’t do your job. No slip on ice possible, and when you lose your job, you won’t have to come to Michigan at all (lucky you).
Made sure she saw the invisible ice.
Regarding item A. Is there a different result if:
She tries to leave the hotel because she already checked out. No, she should go back and get another room. She doesn’t have the money to get another room. No, she should have brought enough money to have rented another room. She tries to rent another room, but the hotel is booked to capacity for the next night. No, she should camp out in the lobby. She camps out in the lobby, but the hotel requires her to leave because of an anti-vagrancy ordinance. No, she can then wait for the police to come and take her out. She probably then has a good argument that she was forced to encounter the hazard.
Regarding item B. Is there a different result if:
1. She tries to do her job because if she doesn’t her company won’t pay her airfare home. No, she should wait and book
2. Her job is to deliver a keynote address to a group of hundreds at a convention. No, the conventioneers shouldn’t be going anywhere during the winter anyway.
3. Her flight leaves at noon and the airport is one mile from the sales call. No, see item 1.
4. All job related issues could be avoided by her employer if they were smart enough not to do any business in Michigan in winter in the first place.
Regarding item C. Is there a different result if:
1. It is agreed that she does not have the power to see that which is invisible. No, we apparently all have that power.
2. Tries to be extremely careful, wears heavy rubber boots, and takes baby steps. No, she still fell, didn’t she?
3. She falls while trying to salt the area herself with salt she has brought in with her from out of state, to address this specific issue. No, see answer to item 2.
There are many more such questions, but a jury will never consider them. In the meantime we will continue to bestow legal status on various inanimate objects so as to prevent juries from having to look at specific facts and make judgments. Who can trust them, anyway?
Oh what a tangled web we weave, when juries of their duties we relieve.
Michael Butler is an attorney in the Detroit area. He can be reached through http://www.Attorneybutler.net
Tags: courts, fall, ice, injury, invisible, juries, justice, michigan, obvious, open, snow, winter
