How to Determine if a Case Falls Under Michigan's 'Open and Obvious' Statute
Michigan's "Open and Obvious" statute was brought into being during the 1990's as a way for the Michigan courts to reform their outrageously out of control tort system. Many, however, argue that in recent times the pendulum has swung too far in the opposite direction, with many reasonable personal injury lawsuits being thrown out of court due to their "open and obvious" nature. How can you decide whether a given tort case will fall under the Michigan open and obvious statute? Here's a brief guide:
- Difficulty:
- Moderate
Instructions
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1
Determine whether your case is a personal injury tort case. These are the cases, in Michigan courts, that almost always involve the open and obvious statute. If the case is a personal injury lawsuit, particularly a slip and fall, then the open and obvious issue is certain to be raised.
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2
Determine whether the injured person's injuries were a result of a liability-creating situation or circumstance. For example, a person who trips over a bunched-up rug in a department store has a case that will meet scrutiny under the open and obvious statute because their injury was caused by a liability-creating circumstance, namely the bunched-up carpet. If that same person were pushed by an employee of the store and fell down and was injured, then the case would not meet the open and obvious statute requirements because the actions of the employee were what led to the injury and there is no question of the injured person's ability to evade that injury.
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3
Figure out whether or not the liability-creating circumstance or situation could be considered "open and obvious." In Michigan's contemporary court atmosphere, almost any such situation falls under scrutiny regarding its open and obvious nature. If a reasonable, everyday person would be able to perceive the danger and avoid it, then the danger is considered open and obvious and doesn't present the defendant with tort liability.
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Tips & Warnings
There are exceptions to the open and obvious rule, but they're difficult to argue. The major exception, and the best one to argue, is that the liability-creating situation was so blatantly dangerous and innately hazardous that it's open and obvious nature doesn't excuse the defendant from liability. The next best argument, in practice, is that the situation wasn't actually open and obvious, but was obscured or hidden in some way.
If you aren't sure whether your opponent will be raising the open and obvious issue in court, it's best to assume that they will. Open and obvious rulings are what deflate the vast majority of personal injury lawsuits in Michigan today.
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- Photo Credit Kenneth Hawes, Wikimedia Commons
Comments
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loubrant
Jun 07, 2010
on 6/2/2010 I was holding a holding a net, I shifted and fell down a set of stairs while my son was tying down a freezer we had just bought. The steps had no grips or yellow tape, and in poor condition but it was where they told us to pick up the freezer and they way they had us back up my truck you could not see this. There are 2 witness to this fall (not including myself or my son) neither of which did anything or even ask me to sign a report (I had to go around the store to that) I have a broken ankle due to the fall. -
montanatt
May 13, 2009
I tripped at work over an area rug that was very thick. Workmans comp paid for arthoscopic and 5 injections which none of this worked. Conclusion- I had to have a total knee replacement but now workman's comp would not pay and we paid for that. We are now suing the workman comp and my company for back wages and medical bills. Do we have a case?
