TOV Injury and Safety Blog

Injury claim based on fall caused by drain cover is dismissed.

The Court of Appeals upheld the dismissal of Kenneth Miller's injury claim against S M Hong Associates (a laundromat in Genessee County).  While carrying a laundry basket of clothing, Miller tripped on an elevated drain cover and fell, suffering serious injuries.  The Appeals Court majority felt compelled to dismiss the claim on the basis of the Supreme Court's broadened interpretation of the "open and obvious" rule.  Under that rule, the owner of a commercial establishment owes no duty to correct a hazard which a patron would discern "on casual inspection."

Judge Michael Kelly authored a thoughtful dissenting opinion, pointing out that historically and in all other aspects of civil law, the conduct of both plaintiff and defendant must be measured for "reasonableness" and compared.  If both contributed to the injury through inattention or "negligence" the jury must weigh their respective contributions and if the victim's negligence is not as great as the defendant's, the defendant should contribute it's "share" to the total damage caused.  Judge Kelly noted that eliminating any duty by a landowner to address so-called "open and obvious hazards" is inconsistent with long-standing Michigan law and sound public policy.  Judge Kelly also noted that it was not at all clear from the photographs submitted to the court that the drain cover was an "obvious" hazard to patrons.

Woman cannot sue after fall in apartment complex parking lot

Carla Counterman sued her landowner, arguing that its failure to adequately maintain the apartment complex parking lot caused her fall on ice.  Her attorneys argued that the apartment complex owners violated a statutory duty to maintain the lot in a condition "fit for the use intended by the parties." The Court agreed with a prior panel of the Court of Appeals which held that "a landlord could have a duty with regard to ice and snow, but...it would be triggered only under much more exigent circumstancews than those obtaining in this case."

The Court upheld the dismissal of the Counterman case.  It held that since the family members who came to "rescue" Carla were able to park in the lot and transit between their cars and the apartment, the lot was "resaonably fit for its intended purpose."

"Black ice, although not actually visible upon casual inspection, was an open and obvious danger."

The Court of Appeals majority reversed the trial judge and dismissed elderly plaintiff Patricia Dombrowski's injury claim against the Laurel Chapel where her granddaughter was getting married.  Dombrowski claimed that she fell on a patch of ice created by an "unnatural accumulation" of ice at the bottom of an awning. She claimed that the ice was not visible to the naked eye and that she did not see it before she fell.  The Republicans on the Michigan Supreme Court have reinterpreted the "open and obvious" doctrine to immunize property owners from any duty to correct hazards that are "visible on casual inspection."  In the past, owners owed no duty to warn of obvious dangers, but might still owe a duty to correct unreasonable hazards.  Under the new doctrine, however, if the court concludes that a danger is "obvious" on casual inspection, the property owner owes absolutely no duty to correct the hazard--unless it presents the equivalent of a "thirty foot deep unguarded pit."

Court overturns decision defaulting woman who did not fulfill discovery obligations

Bridget Tolliver sued the Stonebrook III Divident Housing Association, arguing that it contructively evicted her by failing to respond to leaks and black mold.  She then became embroiled in controversy with her lawyer.  He sought to withdraw from the case after she filed a grievance against him.  Tolliver did not file answers to the Defendants' discovery requests, and blamed the failure on her lawyer and on the fact that she was suffering pregnancy complications that debilitated her. 

Woman can't sue for fall over desk mat in dentist's hallway; limited vision is admissible

Verlena Sexton-Walker fell in the hallway of the Great Expressions Dental Center office.  The hallway was well lit and Sexton-Walker watched a dental assistant step on, and then over, a plastic desk mat that had been left in the hallway.  Unfortunatelly when Sexton-Walker attempted to walk over it, she stumbled and fell suffering injury.  She brought a claim against the dentists' insurer.  We can presume that the dentists' expressions weren't so great when they were told of the claim, since their insurer declined it.

Court reconsiders; again grants immunity to Hotel for obviously unsafe speakers' podium

Norma Chesser sued the Radisson Plaza Hotel in Kalamazoo months after she fell off the stage immediately after giving a short speech.  Chesser was returning to her seat and was forced to walk between other speakers' chairs and the edge of the stage.  She did not realize that one of the speakers had apparently pushed a chair back, narrowing the walkable edge of the stage, and she stepped into oblivion, suffering injuries.  Earlier this spring the Court of Appeals reversed the trial judge and dismissed her injury claim. The Court held that the Radisson was immune from injury claims because the danger presented by the stage was "open and obvious."

The panel of the Court then granted reconsideration and it appeared that this absurd public policy decision would be reversed.  Today, the Court issued its new opinion and the only thing changed was the rationale by which the "open and obvious" decision was justified.  Where the earlier opinion had suggested that Chasser should have interrupted the program rather than attempting to make her way back to her seat, this opinion focuses on the broader, less absurd--and less human--aspect of the case.

The Court recognized that Ms. Chasser raised "important and reasonable concerns" but that they are "essentially policy issues" foreclosed by the "Enger Majority" of the Michigan Supreme Court and therefore must be directed to the state legislature.  It doesn't matter that industry standards were violated in the stage design or that the Hotel employees admitted negligence.  It doesn't matter that no reasonable person in Chasser's position would have interrupted the program to force the Hotel to re-arrange the stage.  Since the danger was "open and obvious," the users bear all of the risks and the creator of the danger owes no duty to make repairs.

Judge Saad describes his understanding of landlord's duty: never a recovery for an injured tenant

In a case where none of the three judges could agree on how to apply Michigan Supreme Court-created law, the Court of Appeals recently held that a tenant could not sue his landlord for failing to correct a condition that created icy apartment steps.  Thomas Magyar sued his landlords, Michael and Diane Barnes in Saginaw Circuit Court after he fell on the steps and suffered injury.  He claimed that the landlords had failed and refused to install eaves troughs to divert roof run-off that froze on the steps creating a hazard.

Court holds violent acts "aren't foreseeable result of illegally serving alcohol" and "willful ignorance" of illegal consumption does not constitute "actual knowledge."

In one of the most disappointing examples of political, activist, result-oriented, injudicious decision-making we have witnessed in 30-plus years of lawyering, the Court of Appeals held in Uplinger v. Howe, et al., that homeowners who hosted an alcohol-laced party for "75-100" guests after their son's junior prom owed no responsibility for grave injuries suffered by one of the attendees.  The 19-year old plaintiff suffered a severe head injury after he was beaten by an intoxicated 24-year-old wielding a baseball bat.  The two "boys" had been involved in a verbal altercation earlier in the night--in the Defendants' polebarn--and the attacker, Jeffrey Howe, returned with companions and weapons to attack the plaintiff, Uplinger.

Child cannot sue Meijer for second-degree burns suffered as a result of leak from pre-cooked deli chicken

Meijer's deli serves pre-cooked whole chickens which are maintained at a temperature above 140 degrees to prevent the growth of bacteria.  11-year-old Bailey Malthaner accompanied her mother to the grocery store after having a tooth removed and was seated in the main compartment of her mother's shopping cart.  When her mother purchased the chicken in an enclosed plastic container, Bailey asked if she could hold it.  Almost immediately she started to scream and mom discovered that hot grease was leaking from the plastic container and burning Bailey's leg.

Neighboring tenant who falls into unguarded doorway is a trespasser and cannot press injury claim

This week the Court of Appeals dismissed its seventh straight premises liability "slip and fall" claim.  In this case, Anbari v. Unions Square Development, the plaintiff Christopher Anbari was showing a prospective tenant a condominium.  He opened a door which he believed led to the exercise room, only to fall six feet to the concrete floor:  the door actually served Union Square's condominium and was being renovated.  An employee of the owner perfoming the construction had failed to lock or barricade the entrance.

Trip over curb is "open and obvious."

The Court of Appeals dismissed about the thirtieth consecutive premises liability case this week.  Mark Schimanski tripped over a raised concrete curb walking into the Squad Three Ventures' "Engine House" in Macomb County.   He alleged that the curb was a hazard which should have been cured by the owners and that it was not open and obvious to a casual observer because the ridge was unpainted and "because there was not contrast between it and the concrete that would give it height, depth, or conspicuity."  The trial judge said it was nevertheless "open and obvious" on casual observation and dismissed, and the Court of Appeals made short work of affirming the dismissal.  The Court encountered no difficulty applying an "Engler Majority" rule that regularly relieves landowners of the duty to erect stairway handrails, provide adequate lighting, or to repair and maintain carpeting, stairways and sidewalks.  We wonder why we even bother to buy homeowner liability insurance coverage, given that the odds of encountering a valid liability claim are about 1,000 to one.

Truckdriver's fall on black ice cannot be pursued

Jose Holguin fell after exiting the cab of his truck at a Ford Motor Company loading dock.  The Court relied on the fact that Holguin could see the ice after he fell, while lying on the ground, to conclude that it was not "black ice" and therefore he could not sue Ford Motor for failing to eliminate the hazard.  The Court simply concluded that the ice was apparently "observeable" and therefore "open and obvious," even if it was not apparent "on casual inspection" as the legal definition requires

Patron who fell on black ice cannot sue grocery store because ice was "open and obvious"

Gerald Gass fell while leaving the Spartan Store in Roscommon.  After he fell, while lying on the ground, he could see black ice where he fell. The store manager claimed that he could not find the ice which Gass claimed caused his fall.  Sounds like a clear question of fact and credibility for the jury to sort out.  The Court of Appeals said "no" however.  It concluded that since Gass could see the ice when he was on the ground, and since it was cold and had rained overnight, and since there was a dusting of snow in some areas, the black ice that the store manager couldn't find was actually "open and obvious" eliminating any safety duty on the store's part.

Shockingly, the court also held that dismissal was warranted becaue even though the snow was "open and obvious" to Goss as a "casual observer" there was no notice of the condition to the store owner.  What a perversion of language and justice.  Goss' case is dismissed because the hazard was one he could have seen on casual observation, despite the fact that the store manager couldn't find it:  and at the same time there was insufficient evidence to put the landowner/invitor business on notice of this "open and obvious" hazard . 

Shoplifter can't sue over broken collar bone; Kohl's not subject to statutory limit on use of force

Sarah Stolicker admitted that she had shoplifted in the Oakland County Kohl's Department Store.  Nevertheless, she brought an injury claim against the store and security agent Darryl Duncan after Duncan allegedly tacked her in the parking lot and fractured her collar bone.  She cited that Michigan statute that limits private retail securiity employees to "reasonable force" in effecting arrests.  Stolicker argued that by exceeding reasonable force in tackling her, Duncan and his employer could be held responsible for their share of her medical expenses on a comparative fault basis. 

The Court majority disagreed.  It held that since she was engaged in wrongful conduct, she forfeited any right to pursue an injury claim.  It also refused to apply the statute cited by Stolicker; the two judges implicitly decided that this statute applies only to "suspected" shoplifters but did not limit the force used to detain admitted shoplifters.  The dissenting judge pointed out that the majority decision did not follow existing Supreme Court holdings, the language of the "reasonable force" statute or the statute adopting comparative fault.

Claim arising out of startled woman's fall in parking ramp is dismissed

Karen Shay filed suied against the owners of the Fort Washington Garage after she missed a step and fell.  She claimed that she missed the step because two garage employees distracted her by asking for her keys.  She argued that the garage employees were negligent in accosting her in the near-empty garage, startling her and distracting her from the step she needed to negotiate to get to her car.

The Court held that a lone woman should not have been surprised by the approach of the two men in the garage, and that her resulting fear did not warrant looking past the open and obvious nature of the step that caused her to fall.

Yet another claim dismissed as "open and obvious" despite Defendant's employee's admissions

Merle Minehart fell in a Kroger store.  She tripped on a shopping cart bumper located adjacent to a newspaper display in a very narrow aisle.  The Kroger employees had acknowledged that the bumper was a "trip hazard" and that whether it was readily observable depended upon the observer's perspective.  The Plaintiff argued that since it was located immediately behind the newspaper display in a narrow aisle, the six-inch bumper was not "apparent to a casual observer" and therefore Kroger owed a duty to remove or remediate the "trip hazard."  The trial court agreed and denied Kroger summary disposition.

Injury at amusement park results in money verdict--but for the amusement park and against victim.

Marilyn Lukas attended the Carnival at the Taylor Summer Fest with her husband and kids.  As they were walking down the midway near the "Beer Bust," a softball struck her in the face, broke her nose, lacerated her cheek and took some of the pleasure out of the family's outing.  Lukas sued the operator of the Beer Bust game and the operator of the carnival, alleging poor design and management of the ball-throwing game.  To make a long story short, the Carnival operator argued that Lukas couldn't prove that the Beer Bust was the source of the ball that struck her, and the jury concluded that the operator wasn't responsible for Lukas' injury. 

The Carnival operator then sued the Beer Bust operator to recover its defense costs of $117,000.00.  The lower court entered a judgment for that amount, based on the Beer Bust operator's indemnity contract with the Carnival (agreeing to hold the Carnival harmless for any claims arising out of the Beer Bust's activities).    The Court of Appeals reversed, holding that given the jury's verdict in the case brought by Lukas, the indemnity contract language was ambiguous in attempting to shift the defense expenses to the Carnival.  We guess there was "due process" here, but it is hard to see this result as a common sense example of a "system of justice."   Do you think this is what most people think they are buying when taxpayers fund the operation of a court system?  Certainly insurance companies are getting their money's worth.

Woman who fell on leaf-covered sidewalk while entering restaurant cannot sue

In an opinion issued this week, the Court of Appeals held that "a leaf-concealed sidewalk lip was an open and obvious danger" relieving the owner of the restaurant of any duty to alleviate the danger by sweeping leaves or eliminating the "lip."  The Court continued:  "Casual observation would alert the average individual of the potential danger posed from slipping on the leaves or tripping over something hidden under the leaves."  Judge Kirsten Kelly was one of the signatories to the opinion.  She should just frankly announce that she doesn't believe in injured persons receiving compensation, regardless of the cause or the prior law. 

Now, Michigan landowners not only owe no duty to remove or improve "open and obvious" hazards:  they also owe no duty to alleviate hazards in locations where they "potentially" exist.  A visitor's failure to appreciate that there is a "potential" hazard constitutes comparative fault that should reduce the visitor's compensation.  The hazard, itself, does not thereby become "open and obvious," relieving the landlord's duty to address it.    The "open and obvious" exception to a landowner's duty to make his property safe for invitees has literally swallowed the duty itself when what invitees should have recognized as "potential" hazards become "open and obvious" hazards.  The case is Anne Clogg v. JNL Ventures, Inc., doing business as Shield's of Warren.

Painter loses common work area injury claim

James Shawl suffered injury to his back when a large electrical box  with protruding screws fell and struck him while he was working as a subcontractor painting the entrance to the Saginaw County Event Center.  The General Contractor on the project was Spence Brothers construction company.  Shawl sued Spence Brothers, arguing that it negligently fulfilled its duty to protect employees working in the common area from construction hazards.

The Court of Appeals upheld the dismissal of Shawl's claim.  It ruled that the electrical box did not pose a substantial risk of severe harm and that a significant number of workers were not endangered by the box.  Therefore, the risk it posed did not create a "common work area" duty on the part of Spence Brothers to protect the employees of subcontractors.

Another fall on stairway is dismissed by the Court

Since the so-called Engler Majority of extremist Republican Justices on Michigan's Supreme Court expanded the property owner's immunity for "open and obvious" hazards, most "slip and fall" claims have been dismissed as a matter of law, regardless of the nature of the hazard that caused the fall.  If someone falls because of a hazardous condition, the lower courts have been instructed to dismiss the case without jury consideration if the victim could have identified the hazard on casual inspection.  The fact that the hazard "could have been seen" now relieves the property owner's duty to act reasonably to eliminate the hazard or make it reasonably safe.

Court overturns summary disposition where land-owner provided no evidence that ice was "open and obvious."

Predictably, Judge Henry Saad dissented when the Court of Appeals ruled that Jacquelyn Robbins' injury case against the Village Crest Condominium Association should go to the jury for decision.  Judge Saad virtually never votes for any injury claimant or consumer claim and is firmly in the insurance-activist roster.  The Court majority reinstated Robbins' claim, holding that her claim of having fallen on black ice was supported by the evidence.  The majority noted that she and EMT responders provided evidence supporting her claim to have fallen on ice that wasn't readily visible, and the weather and other records documented the lack of precipitation or ground snow at the time of the fall (or within days).  Therefore, the Court could not hold that as a matter of law the ice hazard was "open and obvious" to a casual observer.

Sheriff's Deputy forced to early retirement by injuries cannot sue homeowner who failed to clear ice and snow

Dominick Spadafore, an Oakland County Sheriff's Deputy, was called to Wayne Dale Bailey's home because Bailey's son had run away.  Bailey's son ran away after being told to shovel snow.  After meeting with the parents, Spadafore was leaving the home when he slipped on ice on the porch and suffered injuries that lead to his retirement.  The Court of Appeals sympathized with Spadafore's situation, but noted that under prior rulings of the "Engler Majority" the ice and snow that Baileys had not addressed were an "open and obvious hazard." Since the hazard was "open and obvious" the homeowners owed no duty by the  homeowner to make the hazard safe--even though the Deputy was invited to the premises and obligated to respond.

Speaker who fell off the back of crowded stage cannot sue Hotel

Norma Chesser was one of several speakers at an event held at the Radisson Plaza Hotel at Kalamazoo Center.  After concluding her talk, she left the podium to return to her seat and "disappeared" off the back of the stage, injuring her shoulder.  She sued the Hotel, alleging that the stage arrangement, positioning speakers in close proximity to a fall hazard without any railing, was unreasonable.  Her attorneys presented the court with industry standards that had been violated by the arrangement and with admissions by hotel employees recognizing the continuing unsafe condition.

Court of Appeals dismisses schoolgirl's injury claim, overlooks defense attorney's misconduct

Amanda Berry fell off the stage at Dearborn Heights Montessori school during Family Night activities and suffered severe injuries.  Her parents filed suit against the school, arguing that the stage should have been closed for the event because, lacking any railing, it was a hazardous condition for young children playing.  At trial, the defense attorney was prohibited by the judge from arguing that the mother was inattentive and at fault for allowing the injury to occur.  Nevertheless, he made several references to the fact that the mother "wasn't paying attention to" Amanda when she fell, ostensibly to prove that she didn't know how Amanda fell.  The jury gave a verdict to the School and the family appealed.

Claim arising from trip over pallet in Big Lots Store is dismissed

Lois LaFontaine turned an aisle while shopping at the Oakland County Big Lot store and her shin struck a pallet protruding into the aisle.  She fell and allegedly suffered injury.  The Court dismissed her injury claim, finding that the pallet was an "open and obvious" hazard which the store owed no duty to remedy.  The Court also held that the case arose from a "condition" on the premises, and therefore a claim for negligence against the store employees for leaving the pallet in a "camouflaged" location was untenable.

Slip and fall case entering Younkers Department Store is dismissed

Usha Shah fell just inside the door as she entered a Younkers, just after a significant rainstorm.  The staff of the store had set out four yellow cones just inside the doorway in an attempt to warn entering patrons.  It rejected Shah's injury claim on the basis that the tracked-in water from the rainstorm was "open and obvious," as was the hazardous condition of the marble tile in the doorway.  She sued and the court dismissed her claim on the same basis.

Michigan Supreme Court reverses Court of Appeals' holding that contract immunity does not apply to protect defendant from its own negligence.

In June, the Court of Appeals ruled that a contractor was not immune from negligence simply because it signed a contract with the City of Royal Oak that imposed certain safety requirements.  The two concurring Court of Appeals judges determined that the injured party, Frederick Price, had pleaded a duty owed by the contractor to him that was "separate and distinct" from the contractual duties it assumed to the City. 

Weather conditions "favorable" for the development of black ice do not constitute an adequate foundation for explaining fall

Terry Eakins fell on the premises of Copeland Auto Repair after getting out of his AT & T van.  Eakins was on the property to install phone service.  He explained that his foot slipped on something, but that he never identified the cause of his fall.  He argued that since the landowner admitted that conditions were "favorable" for the development of black ice, the jury could infer, without further evidence, that black ice was, indeed, the cause of his fall.  The court said that will be the day. 

Contractor working on Dow Chemical property cannot sue over ice near building

William Osantowski was returning to the Dow building from an errand to his car when he slipped and fell on ice, suffering injury.  He claimed he did not see the ice until his fourth trip between the parked car and his employment location and argued that Dow was negligent in clearing snow and ice from its lot.  Dow argued that it owed no duty to remediate the hazard because the ice was "open and obvious" and had been  easily located by one if its employees when he exited the building after Osantowski's injury.

Bar not legally responsible for returning lost car keys to drunken patron

Devon Allison was at the Mo-Doggie's Bar and Grill in Genessee County with friends.  They were served to the point of visible intoxication and asked to leave.   Allison left her keys at the bar, where they were found by an employee.  She returned some time later, obtained her keys from the bartender and was then killed in a fatal car crash.  Her family sued the bar, arguing that it was negligent in returning car keys to a person known to be visibly intoxicated.

The Court dismissed the family's case.  It held that a statute which precludes a visibly intoxicated person from suing the bar that served him or her to intoxication also precludes this lawsuit.  Even though returning the keys may have been negligent, the court deemed the negligence so inherent to the illegal sale of alcohol--and the legislature's limitation on liabilty for an illegal sale--that the family's action was not allowed.

Court holds that parents cannot sue owners of home for death of drunken minor who committed suicide

The Court of Appeals upheld the dismissal of Rita Costigian v. Kevin Plets and Cindy Plets.  The Plaintiff, Rita, was the mother of Jonathon Costigian and the Personal Representative of his Estate.  She sued the defendants after Jonathan hung himself in the Plets' basement.  Jonathan and the Plets' son had previously consumed alcohol at the Plets' home, apparently, and when the Plets left the house on an evening in May of 2008, a minor drinking party ensued.  When the Plets got home, they kicked some kids out, called parents to let them know what happened, and left the drunken kids to "sleep it off."  In the morning, they discovered Jonathan a suicide in the basement.  His parents sued, arguing that they were negligent in allowing the party to occur and in failing to anticipate Jonathon's suicide.

Landlord's statutory duties to maintain property aren't applicable to injury cases?

Monica Martin fell and injured herself at her apartment after tripping over defective floor tiling at the top of a flight of stairs.   Under state law, apartment owners are required to "keep [rental] premises in reasonable repair" and to comply with health and safety laws.   Martin cited the violation of this and related laws by The Fourmidable Group, Inc., as a foundation for her lawsuit against the lessor for negligence.  No one contested the defective condition of the tile. Nevertheless, the Court summarily dismissed her claim and she appealed. 

Michigan Supreme Court Republican majority reverses Court of Appeals; dismisses injury claim against mining firm

Under a unique agreement, the State Department of Transportation leased land from O-N Minerals Company underlying M-134 in the U.P., and built a reinforced crossing site for the Minerals company to use when crossing the highway.  The O-N vehicles crossing the highway included very heavy and tracked vehicles and they severely damaged M-134 at the crossing site.  Debra K. McCue was very badly hurt when she attempted to bike across the site during a DALMAC bike tour and her husband brought a wrongful death survival claim against O-N.  He claimed that O-N was negligent in tearing up the crossing site, failing to repair it and failing to notify the State of the damage it had caused.  The Court of Appeals agreed with McCue and rejected O-N's effort to dismiss the claim.  On appeal, the four insurance-oriented Michigan Supreme Court Justices overturned the lower court's decision and dismissed McCue's claim. 

Theater patron cannot sue after fall in area where employee is mopping

Laurie Anger sued a Macomb County movie theater, America Multi-Cinema, Inc., after she fell on a newly-mopped tile floor.  She approached the refreshment counter where a young man was already mopping the floor with cones set about.  While she moved to the "butter station," the young man with the mop moved in behind her.  When she retreated to the cash register on the newly mopped floor, she fell.  The Court of Appeals did not describe her injuries.  It did, however, conclude that the newly mopped floor was an "open and obvious" danger because jurors could not reasonably conclude that a reasonable person would not have noticed, on casual inspection, the employee's mopping actions.  While the Court may be right, it certainly seems that a question of fact was raised with regard to whether a reasonable person would have immediately recognized that the young man mopping had just mopped the path that the patron had traversed seconds before---and whether that was reasonable condu by the theater employee.

Ramp to serve handicapped is, itself, an "open and obvious danger" so landowner owes no duty to make it safe...

It seems oxymoronic, but as interpreted by Michigan's majority of Republican Justices, an allegedly defective handicap ramp can't be a source of liability for the landowner.  Sherly Edwards alleged that she fell on Cal-Am Properties because the ramp she was using to leave the store was too steep, did not drain properly, and violated the Building Code.  She argued that it was not reasonably safe, making the retailer partially responsible for her injuries and medical expenses.

Insurers 2 for 2 today in denying homeowners' coverage, winning dispute

Fremont Insurance Company and IDS Property Casualty Insurance Company each avoided insurance coverage to an insured this week.  Fremont ducked coverage for an ATV injury caused by its insured Nathan Kadau, while IDS avoided paying for a theft from its insureds, Steven and Helen McGuinness.

Apartment tenant's fall in slushy entryway is dismissed as "open and obvious."

Charlene Klasner sued Harman & Tyner, Inc., her landlord, after she fell in the entryway to her apartment.  She claimed her injuries were the result of the landlord's negligence in failing to remove ice, snow and slush that accumulated in the entryway. She also claimed that the failure to maintain the entryway was a breach of the landlord's statutory duty to maintain the apartment complex's common area in a manner reasonably fit for its intended purpose.

Fall claim is dismissed because hallway floor impediment is "open and obvious."

Constance A. Walk, a student at Baker College, fell in the hallway after her walker struck an impediment. She believed she fell because the walker made contact with  two door pin holes in the floor.  Walk suffers from multiple sclerosis.  She claimed that she did not see the door pin holes because the hallway was crowded with students, preventing her from examining the hallway floor.  Nevertheless, the Court of Appeals dismissed her claim, holding that the door pin holes were "open and obvious," meaning the school owed no duty to eliminate the hazard.

Workman injured on Community College sidewalk cannot pursue claim

Brian Little was employed by a sub-contractor working inside a building on the campus of Macomb Community College.  He and a co-worker were making several trips inside the building, carrying equipment used in the renovation, when he fractured an ankle in a fall on ice.  He made a claim against the general contractor and the College, arguing that they were responsible for eliminating hazards on the sidewalk.

Uninvited visitor is a trespasser; loose dogs are not "strays" until they leave owner's property

Dale Tieman returned to a home where he had previously bought straw, intending to buy more.  Unbeknownst to him, the property had been sold to Joseph Grinsteiner.  Grinsteiner wasn't home, but his dogs were.  Recalling the axiom that "barking dogs don't bite," Tieman exited his car intending to knock on the back door of Grinsteiner's home.  He soon learned that many axioms or merely folk tales.  He sued Grinsteiner for damages.

Slip and fall victim's case is reinstated to investigate failure to repair apartment gutter

Diane Sasu left her apartment after a snow storm to remove snow from her parked car.  The lot had been cleared, but as she worked her way around her car, she slipped and fell on a patch of ice.  She testified that she did not see the ice until she was stepping on it.  She also alleged that it resulted from a ruptured gutter that spewed melted snow from the roof onto the parking lot.  She sued the Village Park of Royal Oak--her landlord--but the trial court dismissed her claim.

Woman loses claim arising out of fall from ladder

Deborah Adamczyk suffered a severe head injury when she fell from a ladder provided by K-Mart to employees of Adamczyk's employer, Footstar Corporation.  Adamczyk sued K-Mart, alleging that the ladder was defective because the rubber footings under three of its legs were missing.  She relied on a previous employee's testimony to confirm that the ladder had been in a defective condition for several years and that K-Mart was aware of the hazard it represented.

Court dismisses action against owner-general contractor where scaffold collapsed

todd Kelly sued Albert Kohler in Leelanau County Circuit Court after he suffered catastrophic injuries in a scaffolding collapse.  Kelly argued that the scaffolding was defective and that Kohler, the owner acting as his own general contractor, was liable for this safety defect in a common work area. The Court rejected this claim, however, finding that since only two persons would be utilizing the scaffolding, it did not present a wide enough risk to invoke common work area liability.

Court upholds hold harmless agreement executed by volunteer employee

Patricia Brown was injured in a fall at the Northwoods Animal Shelter.  She attempted to sue, however, the shelter's insurer sought dismissal of her claim, relying on the hold harmless agreement she was required to sign before beginning work as a volunteer.  Brown's attorneys argued that the hold harmless agreement or "release" was not valid because such an agreement requires consideration and she did not receive any.  The Court dismissed this argument and held that allowing Brown to work with the animals was adequate consideration for her waiver of rights.

Court of Appeals sends worker's fall claim back to Oakland County for trial

George Frommert fell twenty feet from a defective scaffold after stepping from a bucket truck to the scaffold to gather construction debris. The scaffold had been moved to its current location by a sub-contractor, Teera Construction Company, and left in an unstable condition without warnings.  Frommert sued Teera for common law negligence.  The trial court and two judges of the Court of Appeals agreed that Teera was entitled to summary disposition, relying on a mistaken interpretation of the Fultz "contractual immunity" holding by the Engler Majority of Michigan's Supreme Court.  Frommert appealed to the Michigan Supreme Court.

Mini-mart owner has no insurance coverage for shooting man vandalizing his parking lot

Elias Chammas kicked a patron out of his convenience store after identifying him on security tape as having accompanied another man who stole a case of beer.  The would-be patron complained to his brother, who returned to confront Chammas and created a verbal altercation.  After he was kicked out, he began slinging around packing crates, and Chammas fired two shots with a handgun.  Both struck the brother, who then sued Chammas in a civil action.  Chammas sought coverage through his commercial liability carrier, Auto-Owners subsidiary Home-Owners Insurance Company.  The Court dismissed Chammas' claim because his intentional act of shooting--even if he didn't think he'd hit the vandal--was not an "occurrence" or an "accident" under the liability coverage.

Injured oil derrick worker's family cannot sue owner of well

Franklin D. Davis, Jr., suffered very severe injuries when he fell a little over 20 feet after a cable snapped.  He died some time later and his family brought a legal action against the owner of the well, KCS Resources, Inc.  His family's attorneys argued that KCS was negligent in supervising the activities at the well-drilling site and in failing to maintain a safe "common work area."  The Court of Appeals affirmed a decision by the trial court dismissing the claim.  It noted that the owner of the well had sub-contracted the work to Davis's employer and that no other sub-contractors worked on the derrick.  Therefore it was not a "common work area."  Since the owner was no longer in possession of the site, the activity was not "ultrahazardous" and the derrick wasn't a common work area, the owner owed no duty to Davis with regard to safety.

Court emphasizes "casual inspection" standard that applies to "open and obvious" defense

Christopher Karim's mother-in-law, Regina Konia, asked him to stop by her house to help her extract a Christmas wreath from her attic.  When Karim arrived, Regina led him into the attic above the garage and pointed out a particular box stored among several others.  When he stepped over to pick up the box, Karim inadvertently stepped in an area where the floor joists were not covered in plywood and fell to the garage floor below. The Konia's homeowners' insurance persuaded the trial judge to dismiss Karim's injury claim on the grounds that they owed no duty to warn Christopher or to eliminate the potential hazard he encountered.

Court dismisses another "slip and fall case"

Joseph Cantrell sued the Ashley Brownstown South LLC and Ford Motor after he tripped over a raised steel plate on the Defendant's commercial premises. Cantrell was focused on picking up a semi-trailer from a loading dock when he tripped over the 1/2" plate.  He claimed that his business purpose prevented him from focusing on the floor where he was walking.  The Court determined this was not a fact issue and summarily dismissed Cantrell's claim; it held that the raised steel plate was an "open and obvious" hazard and therefore the property owner owed no duty to make it safe or warn about its presence.

Elderly handicapped woman's fall on ice is not actionable

74 year-old Mary Walder was to work bingo night at St. John the Evangelist Parish in Genessee County on February 27, 2008.  It had snowed two inches the day before, the parking lot of the church was plowed, then the weather warmed above freezing and re-froze during the following day.  According to several church members, the parking lot was in "bad condition" with black ice throughout the front and rear lots.  On her way into the church from her handicapped spot, Ms. Walder fell and suffered a severely fractured ankle requiring placement of a dozen screws.  She filed a claim to force the church to pay her medical.  The 2-1 majority of the Court of Appeals threw her claim out.