February 19, 2010
Is black ice hazard 'open and obvious'?

By ANDREW BERGH
Special to the Journal

“Black ice is open and obvious.”

Huh? I thought black ice by definition is invisible or nearly invisible. But because a certain judge concluded otherwise, Lamar Craig went through a needless appeal.

Shortly after midnight on March 10, 2007, Craig slipped and fell on black ice outside a friend's townhouse in Southfield, Mich. The fall occurred under very dark conditions as Craig traversed a sidewalk connecting two buildings in the complex. Craig, who suffered a broken ankle, later sued the property owner, Sutton Place Apartments, for damages in Oakland Circuit Court.

Under Michigan law (as in most states), property owners owe a duty of reasonable care to invitees on their property. This means they must protect them against “unreasonable risks of harm” caused by dangerous conditions on the land.

The standard is different, however, when the danger is “open and obvious.” In that situation, the property owner usually has no obligation to warn the invitee about the condition.

So what's the test for determining if a particular condition qualifies as open and obvious? Whether an “average user with ordinary intelligence” - this hopefully includes you and me - would've discovered the danger “upon casual inspection.”

(Sorry about all the legalese but sometimes it can't be helped.)

Against this background, Sutton Place later moved for summary judgment. The court should dismiss Craig's negligence claim, the defendant argued, because the black ice was open and obvious.

At the subsequent (and very brief) hearing, Craig's lawyer might as well been arguing with a brick wall. Why? Because “there's case law that says black ice is open and obvious,” the trial judge adamantly insisted. Calling Craig's suit a “useless endeavor,” the judge even predicted that “if I deny this motion, I'm gonna be reversed.”

Needless to say, the property owner won round one.

So was the ensuing appeal filed by Craig just another useless endeavor? Not hardly, as a Michigan appeals court two weeks ago reinstated his claim.

Michigan courts, as it turns out, have frequently addressed the “potentially open and obvious nature” of winter weather conditions. In fact, at least four “black ice” cases have been decided in the Wolverine State since 2004.

In the earliest case, the plaintiff saw a dusting of snow - but not the black ice underneath - in a parking lot. But since she also saw three people hanging onto cars for support - a pretty good telltale sign of danger - the court ultimately said the black ice was open and obvious.

In a 2007 case, the plaintiff slipped and fell one night on a driveway coated with black ice. But since she observed snow on the driveway and knew the temperature was dropping, the court likewise ruled that the existence of the black ice was open and obvious.

In a 2008 case, the plaintiff slipped and fell on black ice at a gas station. The weather was sunny, however, and there had been no recent snowfall. Since by definition black ice is either invisible or nearly invisible, the court said this definition is “inherently inconsistent” with the open and obvious danger doctrine. Since there was no evidence the black ice would've been visible on a casual inspection, the court in the end said the plaintiff could proceed with her claim.

Finally, in a 2009 case, the plaintiff slipped and fell on black ice in a funeral home's parking lot. Reiterating the view that black ice isn't open and obvious per se, the court allowed the claim to proceed because there were no “indicators” - e.g., snow, weather conditions, or witnessing other people fall - that put the plaintiff on notice that black ice was present.

So why did the appeals court revive Craig's claim?

For a combination of reasons. There had been no recent snowfall. There was no snow on the sidewalk. Craig saw nobody else fall before he did. And given the time of night and the lack of any outdoor lighting, the sidewalk was “shrouded in darkness.” Since this evidence gave rise to a factual dispute about what a reasonable person in Craig's position should have seen, the appeals court said only a jury could decide whether the black ice was open and obvious.

In short, by apparently assuming black ice is always open and obvious under Michigan law, the trial judge got it wrong. As a result, Craig had to pursue what should have been an unnecessary appeal.

But in defense of the trial judge, I will say he got at least one thing right: “I'm gonna be reversed.”