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Premises Liability Cases in Michigan-Hidden Dangers are now “Open & Obvious”

The Michigan Court of Appeals has crossed into The Twilight Zone. In the area of premises liability, hidden dangers are now, also, open & obvious, and Michigan Premises Liability law has gone from a sensible comparative negligence standard to, almost, complete immunity for premises owners.

In most jurisdictions,generally, property owners who “invite” you onto their premises have a duty to exercise reasonable care to protect you from harm caused by a defective condition. After all, they know (perhaps own) the property and are familiar with it; you, the visitor are not. Thus, they bear the simple responsibility to keep their premises “safe”. Fair? Fair.

Over the past decade or so, the concept of “open & obvious” has entered into Michigan jurisprudence, with a vengence. A judge determined that land owners were protected, if upon casual inspection, the visitor could detect the potential danger. In other words, “watch where you are going”. Sounds somewhat reasonable as a comparative negligence standard, but it has now become a “drop dead” defense to liability.

Most recently (4-15-08 to be precise), a Michigan’s Court of Appeals panel, in Baker v Tendercare, ruled that business owners have, virtually, total immunity from premises liability lawsuit liability. This has been coming for years, as opinion after opinion eroded the rights of injured Michigan citizens. The Baker case involved a woman visiting her mother at defendant’s nursing home. She exited her car and started walking toward the home; she stepped on what appeared to be a harmless crack in the cement. However, the concrete was in bad shape and crumbled beneath her, causing her to fall, hit her head and break her wrist.

She sued Tendercare, which moved for a pre-trial dismissal based on the the open & obvious doctrine. The Court said, in dismissing the case, the following (I kid you not!):

“Just because the defect is hidden does not also mean that it is not
discoverable by the average user”.

Read it again:

“Just because the defect is hidden does not also mean that it is not
discoverable by the average user”

Thus, landowners have no duty to protect you from hidden dangers, even if they know or should know about them, because you didn’t get down on your knees after each step and carefully inspect for hidden defects that might make you fall. Why pay for insurance at all? Oh, that’s right! Insurance companies love taking our money in premiums, they just don’t like paying it out in benefits.

Michigan residents: Rise up! Contact your state representatives and ask them to sponsor a bill to make premises liability law fair in Michigan. Every other area of the law is suject to a comparative negligence standard except Premises Liability. Ask your State Representative to apply straight comparative negligence to Premises Liability litigation.

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