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Unexpected Danger – a Rare Exception To the Open and Obvious Defense

As many Michigan residents are by now aware, Michigan courts have been quite stingy allowing slip and fall cases to proceed to the jury when the property owner can claim that the danger was “open and obvious.” In Michigan, a danger is open and obvious if an average user with ordinary intelligence would be able to discover the danger and the risk presented upon casual inspection.

A recent case, Bachrouche v. Halawi, highlights how darkness might impact the open and obvious doctrine. The plaintiff in Bachrouche claimed he could not see ice on the driveway because it was dark and there was a reflection from his headlights. According to the Court, it was a cold February day, and the claimant had seen snow on the ground. The fact that he couldn’t see the ice he slipped on did not save his claim, because he should have anticipated the conditions which led to his injury.

The Court contrasted this case to an earlier case where a plaintiff was injured in a dark building which had unusual placement of a loading dock in the middle of building. In such circumstances, the plaintiff could neither see nor anticipate the danger, and thus his claim was allowed to proceed to the jury.

Darkness or the unusual placement of a hazard are not enough to impose liability on a property owner. As demonstrated above, however, a combination of the two can sometimes enable a property liability or slip and fall claim proceed to the jury.

 

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