LaBre on Law

By Robert W. LaBre, J.D.

I entered the waiting room to greet a new client, who looked to be in her 60s and had a cast covering her left foot up to her knee and a cast over her left hand up to her forearm.

I sat down next to her and asked her some basic questions. Her injury stemmed from a slip and fall due to snow and ice accumulation as she entered a Michigan business. She fell hard on the parking lot’s concrete: She was required to undergo surgery due to a fracture to her left ankle — a plate and 10 screws were internally affixed to reconstruct the joint. Her left wrist was also broken.

Her medical insurance covered some of the bills but refused to pay for all of them. And, in order to heal appropriately, she would need to undergo physical therapy after the casts came off.

In other words, her medical bills were hefty, needing payment now and would only accumulate. Who knows whether she would fully recover from her injuries and what the implications were if she couldn’t?

“I tried asking the business owner if she would cover the rest of the expenses, but I was refused,” she said. “I just don’t know what to do. I don’t make enough to pay these bills given my budget. Can we sue that business for the remaining bills?”

“What did the premises look like when you entered?” I asked.

“Most of the parking lot was covered with snow and slush, but there were pockets of dry surface,” she said.

“What caused you to slip?” I asked.

“I slipped on a snow-covered surface in the parking lot that had ice underneath. I didn’t see the ice, I thought I was safe.

“When I fell, I felt my ankle snap and put out my hands to catch my fall, that’s how I broke my wrist.”

“Why were you entering the business?” I asked.

“I needed some groceries for our family’s Christmas meal,” she said. “I was also going to pick up some Christmas gifts for my children and grandchildren.”

“Did you notice whether the business had any other methods of entering the premises?” I asked.

“I think there was a second door to enter, but I’m not sure,” she said.

“I don’t think you have a case against the business owner,” I said.

“Why not?” she asked.

“Generally, a business owner owes a duty of care to remove known dangers for its patrons, but this rule is obviated if the danger is considered open and obvious,” I replied. “Snow-covered surfaces are open and obvious dangers in Michigan.”

“Is this ‘open and obvious’ rule without exceptions?” she asked.

“No,” I said. “If an open and obvious danger is unreasonably dangerous or effectively unavoidable, the business owner’s liability is reimposed; but, those exceptions don’t apply to your situation.”

“Why not?” She asked.

“The unreasonably dangerous situation arises when the risk of injury would likely cause severe harm to the individual, such as falling into an unguarded 30-foot-deep pit. A snow- covered surface doesn’t present such a scenario.

“As for the effectively unavoidable risk of harm, the Supreme Court has recently ruled that the injured party must be inescapably required to confront the danger in order for the exception to apply. In essence, if the injured person had a choice as to whether to confront the danger, then the exception doesn’t apply.

“Here, you were entering the business premises for groceries and gifts to celebrate Christmas. Under current precedent, you’d lose the case for a number of reasons: You could have attempted to enter the other entrance, which may have been less dangerous; you could have come back to the premises a different day, when the surface was cleared; or you could have gone somewhere else to do your shopping, where the surface is cleared.”

“Who would think of that on a simple trip to the grocery store?” she said more as a statement than a question.

“Not many,” I replied. “But the analysis doesn’t focus on the business owner, it focuses on the person entering the business. It’s part of Michigan’s public policy requiring the public to take reasonable care for themselves.”

“Is there nothing that I can do?” she asked.

“Did you bring your health insurance contract with you by chance?” I asked.

“No,” she replied. “Do you want me to get it?”

“Yes,” I said. “It’s not uncommon for insurance companies to deny coverage when they should have to foot the bill. But if the insurance company is correct in denying coverage, I’d recommend you search for other health care.”