One topic of controversy in Michigan law is the so-called “open and obvious” doctrine. The doctrine has established that if a defect is “open & obvious”, and a person falls over or on it, that person cannot collect damages unless the defect is “effectively unavoidable” or creates “an unreasonably high risk of severe harm”. Most recent Michigan decisions have declared conditions that would cause someone to fall are unlikely to cause severe harm; therefore, the “high risk” requirement is not met. Plaintiffs attorneys have strongly disagreed; as stated before in this forum, the death of diet Doctor Atkins and the severe injury suffered by Ed McMahon caused by falls would suggest that falls can and often do result in serious and fatal injuries and that simple falls can create an “unreasonably high risk of severe harm”.
Recently, the New York Times studied the issue of the serious injuries suffered by and the complex care needed for elderly citizens who have fallen. The article focuses upon the elderly and indicates that, according to the Center for Disease control, 1.8 million Americans over age 65 are injured in falls. If the fall is “minor”, a victim may rebound as if an injury never happened. For some, however, the fall sets off a downward spiral of physical and emotional problems – including serious illnesses and infections that become too much for their bodies to withstand. In 2005, the last year for which statistics are available, out of 433,000 people over 65 who were admitted to hospitals after suffering a fall, an astounding 15,800 died as a direct result of the fall. This statistic does not include a large number of seniors who survive the fall but cannot survive the indirect consequences of the fall.
The next time someone suggests to you that a fall is no big deal, remind them of Dr. Atkins, Ed McMahon, or the unfortunate people referred to in the New York Times article.
I have said it before and I will say it again: Michigan residents should be outraged at the injustice of the “open & obvious” standard and the suggestion that a fall cannot create an “unreasonably high risk of severe harm”. Contact your state representatives and ask them to sponsor a bill to make premises liability law fair for Michigan citizens. Every other area of the law is subject to the application of the comparative negligence standard except Premises Liability. Ask your State Representative to apply straight comparative negligence to Premises Liability litigation.
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