As the weather in Michigan swings wildly from mild Spring-like afternoons to frigid Arctic blasts, everyone knows how quickly roads, driveways, parking lots, and sidewalks can become treacherous minefields. Whether you’re taking a quick trip to the grocery store or commuting to work, staying safe in dangerous situations should be everyone’s top concern. Consider an elderly woman leaving her apartment on a wintry morning. A light snow has fallen during the night. A lifetime Michigander, she knows how to walk in light snow, and takes a few careful steps outside her door. The snow crunches under feet familiarly as she gets her bearings. Confident as to how to proceed, she takes another step only for her foot to find a patch of ice hidden by the snow, which the apartment complex maintenance team had failed to salt. She slips, falls, and fractures her leg in two places. The next few months are a welter of exams, surgeries, and physical therapy; and her life is never quite the same again. Should she sue? Can she?

Under Michigan law, negligence actions for injuries sustained in slip-and-fall cases have tended to be frustrated by what’s called the “open and obvious” doctrine. Essentially, a potential hazard is considered “open and obvious” if a reasonable person would notice the hazard and be able to act to ensure their own safety. Thus, if a slippery sidewalk on a cold day with snow on the ground is an “open and obvious” hazard, it becomes difficult to show that a defendant was in some way negligent, whether they could have done more to clear the hazard or not. The argument focuses on how obvious the hazard was, and what was done to eliminate it. The more obvious the hazard, the less a defendant needs to have done to mitigate the risk.

However, Michigan has a statute which requires landlords, specifically, to keep common areas fit for their intended use. (MCL 554.139). Recently, this statute has been used to find a separate and distinct duty that goes above and beyond the common-law duty described above. Thus, even if a hazard were considered “open and obvious”, a claim can nonetheless be made against a landlord who fails to keep a sidewalk fit for its intended use, namely, walking.

This distinction was made very clear in a recent unpublished opinion by the Oakland County Circuit Court in late 2016, (Hendrix v. Lautrec LTD, MiLW No. 08-98135), in which a plaintiff’s claim for negligence was dismissed, but her claim under MCL 554.139 was remanded to district court to determine whether the common area of her apartment complex where she was injured had been “fit for its intended use”. The key factual question was what a driveway’s “intended use” was – more like a parking lot, and its intended use is for cars; or more like a sidewalk, and its intended use is for walking. Whether the defendant breached its duty under MCL 554.139 hinges on that fact – and does so apart from the “open and obvious” doctrine. This distinction provides another possible avenue of relief in slip-and-fall cases.

After any fall, the first concern you should have is for your safety. Is anything broken?  Serious injury may make it prudent to consider whether someone failed to fulfill a duty they owed to you. Your landlord has a duty to keep common areas fit for their intended uses, and their failure to do so has consequences. Consulting with an attorney following a fall can help give you a better idea of what the potential risks and benefits of a lawsuit would be, and can be worth your time and money in situations where the damages suffered are particularly severe. Stay safe out there!

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