The Winter Danger Zone
The holiday shopping season in Michigan is inextricably linked with hazardous weather. As shoppers rush from store to store, they are navigating parking lots covered in slush, sidewalks coated in ice, and entryways pooled with melting snow. Slip and fall accidents soar during December, leading to serious orthopedic injuries and traumatic brain injuries. However, receiving compensation for these injuries is one of the most difficult areas of Michigan law due to the evolving nature of "Premises Liability."
The "Open and Obvious" Doctrine: A Major Legal Shift
For decades, Michigan business owners and insurance companies relied on a powerful defense known as the "Open and Obvious" doctrine. The argument was simple: If a hazard (like a patch of ice or a snowbank) was so obvious that an average person would have seen it, the property owner owed no duty to fix it or warn you about it. For years, this meant that if you slipped on snow in Michigan, your case was likely dismissed because "it's Michigan in winter, you should have known."
However, the legal landscape has shifted. Recent Michigan Supreme Court rulings (most notably Kandil-Elsayed v. F & E Oil, Inc.) have fundamentally changed this. The court ruled that the "open and obvious" nature of a danger does not absolve a property owner of their duty of care. Instead, it is now a matter of Comparative Negligence. This means a jury can look at the situation and say, "Yes, the ice was visible, but the store owner was still negligent for not salting it." The jury might reduce your award by a percentage if you weren't looking where you were going, but the case is no longer automatically thrown out of court.
The "Black Ice" Factor
Even under the old laws, "Black Ice" was a unique category. Black ice is transparent; it takes on the color of the pavement beneath it and is often invisible to the naked eye. In holiday slip and fall cases, proving the ice was black ice is critical. If the ice was invisible, a reasonable person could not have avoided it.
To win these cases, we focus on Constructive Notice. We must prove that the business owner knew, or should have known, about the danger. Examples of evidence we gather include:
- Weather Logs: Did it freeze rain three hours before your fall? If so, the owner had three hours to salt the walkway.
- Surveillance Footage: Did employees walk past the icy patch and ignore it?
- Maintenance Contracts: Did the store hire a snow plow company that failed to show up?
The Invitees vs. Licensees Distinction
Your legal status on the property matters. Holiday shoppers are considered Invitees, the highest level of protection. The business invites you there for their financial benefit, so they have the highest duty to inspect the premises and make them safe. This contrasts with a "Licensee" (like a social guest at a party), where the homeowner only has to warn of known hidden dangers.
What to Do If You Fall
If you are injured while shopping this holiday season, your actions in the first 10 minutes are critical to your case:
- Report It Immediately: Do not just limp to your car. Go to the manager and file an incident report. If they refuse, call the police to document the injury.
- Take Photos: The ice will melt. The snow will be shoveled. You must take high-resolution photos of the ground condition immediately. Photograph the lack of salt or sand.
- Save Your Footwear: The defense will argue your shoes were inappropriate for winter. Put the boots or shoes you were wearing in a bag and do not wear them again; they are evidence.
- Seek Medical Care: Adrenaline masks pain. Go to urgent care or the ER to document the injury timeline.
At Shiraz Law Firm, we understand how to navigate the new comparative fault laws to ensure negligent business owners are held accountable for unsafe winter conditions.
