Whether you look forward to the first snowfall or start longing for spring before the Thanksgiving leftovers are gone, there’s no denying that ice and snow are an inevitable part of the season.
Consequently, more Michigan residents are likely to be injured in slip-and-fall accidents during the winter months.
Falls are a leading cause of fatal and serious injuries such as broken hips and traumatic brain injuries. However, even broken arms or ankles and other less dire harms can be debilitating. If you are injured in a fall, you may consider filing a lawsuit against the property owner or landlord. If so, here are some important facts about this complicated area of Michigan law.
Do you have a case?
Not every slip-and-fall accident is grounds for a lawsuit. Most of these claims fall under the legal concept of “premises liability,” which is based on a property owner’s obligation to keep premises safe and free of hazards. Therefore, a plaintiff has to establish that their injuries resulted from a fall that was caused by a dangerous condition on someone else’s property.
In addition, a plaintiff has to prove they suffered damages as a result of the property owner’s failure to maintain a safe environment. It is fruitless to pursue a lawsuit over minor injuries such as soreness, bruises or scraped knees and elbows.
How the ‘open and obvious’ law affects slip-and-fall lawsuits
The “open and obvious” doctrine poses a major hurdle in any slip and fall case. This law protects property owners when the hazard and its inherent dangers are noticeable to an average person “upon casual inspection.” Unfortunately for victims, most hazardous conditions meet this criteria.
Nonetheless, as with many areas of the law, there are exceptions to this rule that may allow plaintiffs to prevail in a lawsuit. The first is when a condition is “unreasonably dangerous,” such as a 30-foot-deep pit in the middle of a parking lot. Because falling into a hole of this size would undoubtedly cause serious harm or death, the open and obvious defense does not apply.
The second exception involves hazards that are “effectively unavoidable,” meaning the victim has no viable options for avoiding the dangerous condition. This concept usually applies to victims who fall on an icy walk or step as they exit a building, since they would otherwise be trapped inside.
Are snow and ice considered open and obvious?
Because Michigan winters are synonymous with ice and snow, the courts generally rule in favor of the property owners on the basis that slippery conditions should be expected. In some cases, even black ice, which is invisible by definition, has been considered open and obvious.
However, ice-related slip-and-fall cases can be won, especially when the fall occurs in a common area of a multi-unit apartment complex. Landlords have a legal duty to keep an area “fit for its intended use,” and pedestrians cannot use an icy sidewalk or walkway without risking their safety.
The law does allow a landlord or property owner a reasonable amount of time to clear the snow or ice, but this varies according to the individual situation. Some plaintiffs have recovered damages after falling on ice that had formed two hours earlier.
“Establishing whether the landlord had sufficient time to remove the hazard can make the difference between having a case dismissed and winning a sizable settlement,” said Mark Bernstein of The Sam Bernstein Law Firm.
Another interesting aspect of Michigan law is that, unlike sidewalks, parking lots are not intended for pedestrians. Therefore, landlords are not usually liable when a person slips and falls on the way to or from a car in a parking lot.
Mistakes to avoid after a fall
According to Bernstein, victims should avoid these three basic mistakes after a slip-and-fall accident:
- The filing of a written incident report is not required under the law, and in fact could be used against you in the future. While property owners or landlords may request this, you are not legally required to provide a written statement. Without a thorough knowledge of slip-and-fall law, you may unwittingly offer information that can hurt your case. If you want to report the accident, do it verbally, stating only the time and location of your fall.
- Never talk to an insurance adjuster or sign any forms. If you are contacted, simply confirm that you fell and refer the caller to your attorney. Refrain from discussing your injuries or how you are feeling. If the person asks permission to record the conversation, say no.
- Photos are not recommended. A photo of the hazard that caused your fall can be used by the defense to claim the condition was open and obvious.
What to do immediately after a fall
Taking the following steps will increase your chances of success if you end up pursuing a lawsuit:
- Seek medical treatment right away, either at an emergency room or urgent care facility. Describe the circumstances of your fall, including your pain level and any injuries you sustained. If possible, obtain a copy of the ER report when you’re discharged.
- Call a reputable personal injury attorney who specializes in slip-and-fall cases. If you receive calls or written inquiries from the property owner or their insurance company, refer them to your lawyer.
- Follow up with your physician to develop a treatment plan for your injury. This may include further diagnostic tests such as MRIs or specialized X-rays. If physical therapy is recommended, make the appointments and attend every session.
“Because of the complexity of the law, Michigan slip-and-fall cases can be challenging,” Bernstein said. “However, with an attorney who is knowledgeable in this area, you have the best chance of winning compensation for your injuries.”
For more information, contact The Sam Bernstein Law Firm or 1-800-CALL-SAM for a free, no-obligation remote consultation from the safety of your home.