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Open and Obvious Black Ice
by Ron Davis

Shopping center owners in Michigan are now on alert to the dire consequences of injuries to their patrons who slip and fall on black ice.

Such an injury occurred at Great Lakes Crossing, a shopping center in Auburn Hills. And the outcome of the subsequent lawsuit has created much uncertainty among owners of all types of Michigan property.

The Great Lakes Crossing incident began one frigid evening when a female visitor arrived at the center parking lot and headed on foot to the center entrance. Surrounding the walkway she chose were wintry-like signs, but the walkway itself was snow-free. Nevertheless, she apparently stepped on a patch of nearly invisible black ice. She slipped, lost her balance, and fell, injuring her leg.

In her lawsuit against the center’s owners, she blamed them for allowing a hazardous condition to exist in the form of black ice. In response, the center’s owners argued that even if black ice caused the fall, it was “open and obvious,” in which case an average person of ordinary intelligence should have discovered it upon casual inspection.

The injured woman argued, however, that the black ice was not open and obvious. She pointed out that one of the center’s security guards said he returned to the scene of her accident to spread salt on the walkway. And that guard, she added, noted that he was unable to see any ice located there.

In response, the shopping center owners pointed out that a lifelong resident of Michigan should be aware that black ice forms during the winter. Therefore, such formation is open and obvious even when invisible.

A Michigan court agreed that the injured woman should have known that walkways at the center might be icy and she therefore should have taken precautions to prevent slipping and falling.

But on appeal, a Michigan appellate court ruled in favor of the injured woman, noting that black ice, defined as an invisible or nearly invisible coating of ice on a paved surface, is not by its nature open and obvious.

The lawsuit ultimately reached the Michigan Supreme Court, which in a split decision, upheld the appellate court ruling. Explained the chief justice, “The dispositive question in this case is whether the black ice was open and obvious such that an average person of ordinary intelligence should have discovered it upon casual inspection…. [To] claims that my position would lead to property owners always being held liable for accidents arising from black ice, the property inquiry to determine liability for black ice accidents is whether a reasonable person should have discovered the ice upon casual inspection and realized its danger. That is an objective standard that not all will be able to satisfy.”

(Brown v. Taubman Company, L.L.C., 2011 WL 1938152 [Mich.])

Decision: May 2011
Published: May 2011



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