Litigation Defenders

In the September 2017 decision Lemmerhart v. Marciniak, a slip and fall on snow and ice case, the plaintiff argued that the open and obvious defense was inapplicable because he had pleaded ordinary negligence versus premises liability. 

In this respect, the Michigan Court of Appeals affirmed that the open and obvious doctrine applies to all conditions that deal with “an allegedly dangerous condition on the land.” The appellate court distinguished the situations by noting that the only way to allege a separate negligence/ordinary tort claim would be to allege the plaintiff's injury was somehow attributed to something unrelated to land such as the defendant having pushed the plaintiff causing him to slip and fall.

This case further affirmed, but the appellate court noted its displeasure by applying open and obvious to the snow and ice conditions. Specifically, the appellate court indicated that the open and obvious defense should not apply to all snow and ice conditions, but it somewhat conceded that that is the current state of the law pursuant to the Michigan Supreme Court, and it must be followed. Thus, dismissal of all the plaintiff's claims was affirmed.

This case is an important reminder of the current state of Michigan premises liability law and the fact that plaintiffs cannot avoid strong defenses by attempting alternative applicable pleading.