As in all premises liability cases, a dangerous condition is open & obvious if “an average user with ordinary intelligence would have been able to discover the hazard and risk presented upon casual inspection.” The Court of Appeals and Supreme Court have been using this defense to have cases tossed out of court and many Plaintiffs’ attorneys will not take such cases.
However, inroads have been made against this open & obvious defense at the Court of Appeals level. In Bialick v. Megan Mary, Inc., the plaintiff stopped at a gas station, entered the store to pay for gas, and fell. Although she couldn’t see anything on the ground before she fell, such as water, her hands were wet after she fell.
The Court rejected the Defendant’s argument that Plaintiff should have been aware of a potentially hazardous condition inside the building based on the drizzly or misty weather conditions outside, and Plaintiff was allowed to proceed.
Robert L. Blamer is an equity partner in our Livonia office where he focuses his practice on plaintiff’s personal injury and litigation. He assists clients with many types of negligence actions, workers’ compensation claims, and social security disability claims. He has handled, resolved and taken to trial many cases with tremendous success not only in Michigan but throughout the country. His trial experience includes automobile negligence, complex professional negligence, products liability and complicated plane crash matters.