Can an invisible hazard be open and obvious? Yes, says the Michigan Supreme Court, at least where other indicia of the hazardous condition are present. Based on weather conditions at the time of the slip-and-fall accident and the fact that four other witnesses detected the black ice shortly thereafter, the Michigan Supreme Court reversed the Court of Appeals and ordered summary disposition be entered for the defendant in Cole v. Henry Ford Health System
, No. 149580.
The plaintiff slipped on black ice and suffered injuries to his ankle while acting as a business invitee on the defendant’s property. The defendant moved for summary judgment on the grounds that the danger was open and obvious. In the alternative, the defendant claimed an absolute defense under MCL 600.2955a, alleging that the plaintiff was impaired due to alcohol consumption and was therefore at least 50 percent responsible for the accident.
The Court of Appeals stated that there is an inherent inconsistency between black ice, which is either invisible or nearly invisible, and the open and obvious danger doctrine. However, where there are other indicia of a potentially hazardous condition, including weather conditions at the time of the accident, ice can be considered an open and obvious danger. The Court of Appeals thus concluded that a question of fact existed as to whether the ice was open and obvious, as well as to whether the plaintiff’s intoxication caused him to be 50 percent or more at fault, both of which precluded summary disposition.
The Michigan Supreme Court reversed, declaring the black ice to be an open and obvious hazard and precluding the need for the Court to consider the defendant’s proposed defense under MCL 600.2955a. Relying on factors such as weather conditions at the time of the accident and the fact that four other witnesses detected the black ice after the plaintiff’s fall, the Court held that a reasonably prudent person would foresee the danger of icy conditions on the mid-winter night the plaintiff’s accident occurred so there could be no recovery. Accordingly, the Court reversed the Court of Appeals’ decision and ordered summary disposition be granted in favor of the defendant.