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“Black Ice” as an Open and Obvious Danger

The Michigan Court of Appeals recently issued an unpublished decision in Stokes v. Adam Oil, LLC, a premises liability case involving the slip and fall of the plaintiff while getting fuel at the defendant’s gas station.

According to the facts of the case, a previous customer had spilled gas where the plaintiff later fell:

“A witness testified that shortly thereafter, one of defendant’s employees came outside with a bucket of water to clean up the gas spill. Plaintiff arrived at the gas station and parked at the same pump where the woman had spilled the gas earlier. Plaintiff testified that while he was pumping his gas, one of defendant’s employees was throwing water on the gas spill behind plaintiff’s van. Plaintiff decided to enter defendant’s building to purchase a coffee and walked around the front of his van to avoid the employee tossing water in the rear. As he walked around the front of the van, plaintiff slipped and fell while he was talking to a friend nearby.”

The plaintiff contended that the water froze, becoming “black ice” that was not readily visible. The defendant argued that the ice was an open and obvious danger formed by natural accumulation, and therefore fatal to the plaintiff’s claims.

The court noted the governing rule, as stated in Hoffner v. Lanctoe: “Whether a danger is open and obvious depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection. This is an objective standard, calling for an examination of the objective nature of the condition of the premises at issue.”

The panel seemed to have been influenced by evidence that the black ice resulted from an action of the premises owner, either by throwing water on a gasoline spill or by allowing water to drip off the overhead awning onto the pavement, rather than the result of natural accumulation. The court reversed the lower court’s grant of summary disposition for the defendant, and remanded the matter for further proceedings in the Oakland County Circuit Court.

Author: Amy Applin

Amy Applin

A talented and accomplished attorney, Amy Applin relishes the opportunity to delve into thorny, intricate, and perplexing legal issues.

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