Jury to Decide if "Black Ice" is Open and Obvious

In Woodard v ERP Operating Limited Partnership, 2005 U.S. Dist. LEXIS 114 (E.D. Mich., January 7, 2005), Plaintiff filed suit after slipping and falling on a patch of ice on a cracked and broken concrete sidewalk on Defendant’s property. Defendant argued the ice on the sidewalk outside the apartment where Plaintiff fell was open and obvious. Defendant claimed Plaintiff testified he was able to see the ice after he fell and he was not paying attention nor looking where he was walking. Judge Avern Cohn of the Eastern District of Michigan disagreed.

Under Michigan’s "Open and Obvious" Doctrine for premises liability actions, a possessor of land generally has no duty to warn of open and obvious dangers. In examining whether a risk of harm is open and obvious, the question is whether an average person of ordinary intelligence would have been able to discover the danger and the risk presented upon casual inspection.