Businesses bombard us with promises of a shopping experience loaded with deals, specials and savings. Whether it’s Wal-Mart, Best Buy, or the local Five and Dime, you would think, as consumers, that the same businesses that have invited us to their premise for deals galore would also make sure that they were providing us with a safe shopping experience.
Here at Smith & Johnson, we have represented individuals who have been trampled at Sam’s Club in the early morning when the doors opened for a big sale. We have represented shoppers who have had merchandise fall on them from over-stacked shelves many feet above their head. We have also represented folks who have slipped and fell on floors that weren’t properly maintained by the store owners.
But, over the last 15 years or so, your rights as a shopper to a safe shopping experience have slowly been eroded by Michigan’s Court of Appeals and Supreme Court. Supreme Court Justices Young, Corrigan and Markman have gone out of their way to make sure that store owners in this day and age are required to do very little to provide a safe shopping experience for the people they invited to their store. You’d think things like shoveling snow out of the entry way, salting an icy sidewalk in front of the store, or repairing cracks in the tile of their aisle ways that might trip up a shopper – you’d think these would been maintained as a matter of courtesy, if not common sense.
But, our Supreme and Appeals courts have found that nearly every condition created by a store owner is "open and obvious" and it’s the shopper’s own damn fault for getting injured. These courts have even held that a blind man who slipped and fell in the bathroom of a fast food restaurant should have seen the puddle of water even though the restaurant failed to properly maintain and keep clean it’s bathroom!
This sets the stage for slip and fall cases that involve black ice. If you live in Michigan, you know that black ice is that thin sheet of ice that forms over the top of a floor or roadway and is basically invisible to the naked eye. In fact, according to Benzie County Circuit Court Judge James M. Batzer,
"It seems to me that what sets so-called black ice apart in it’s capacity to be treacherous is that it’s not visible".
Accordingly, how can it be "open and obvious" if you can’t see it?
This question was answered for us by the Michigan Court of Appeals on November 6, 2008. The opinion was authored by Judge Jane M. Beckering, a recent appointee to the Appellate bench, who has been an amazing breath of fresh air and common sense to the Michigan court of Appeals. The case is entitled Slaughter v. Blarney Castle and it involves a patron of that gas station who slipped and was injured when she fell on black ice in their parking lot.
Prior opinions from the Supreme Court and Court of Appeals have held that snow is open and obvious, slush is open and obvious, and snow covered ice is open and obvious. What these prior courts have said is that Michigan residents should understand that when it’s winter, everyone should know to watch their step or they’re going to get hurt. The problem with this is that store owners now have no duty to shovel their walks, salt their steps or take any action to ensure that their shoppers have a safe experience.
In the Slaughter case, Judges Beckering, Borello and Davis addressed the issue of whether black ice, that isn’t covered by snow is open and obvious. They held it wasn’t.
Finally, a decision that is based on good old common sense. Judge Beckering held that every case that involves a store owners failure to salt or maintain which leads to a fall on black ice should be analyzed on it’s own facts. She held that the "open and obvious" doctrine shouldn’t bar black ice claims unless it can be shown that "an average person of reasonable intelligence would have been able to discover the danger and risk upon casual inspection".
That makes sense because black ice, by it’s own definition, can’t be seen. Judge Beckering wrote:
The overriding principle behind the many definitions of black ice is that it is either invisible or nearly invisible, transparent, or nearly transparent. Such definition is inherently inconsistent with the open and obvious doctrine. Consequently, we decline to extend the doctrine to black ice without evidence that the black ice in question would have been visible on casual inspection prior to the fall or other indicia of a potentially hazardous condition.
Now, thanks to the common sense of Judges Beckering, Borello and Davis, store owners will at least be required to salt and maintain their premises to protect invitees from black ice, even if the law allows them to let snow and slush pile up around their store.
The moral of this legal story is to keep your eyes peeled when you are out shopping. The store owners need to do little to protect you from the dangerous conditions that may be surrounding or within their premise. According to Michigan courts, unless it’s black ice, you are on your own……
Mr. Smith has practiced as a trial attorney since graduating Notre Dame Law School in 1992. He has litigated cases across the country including cases from Ventura County, California to Middlesex County, New Jersey. He practices in both State and Federal courts.