LANSING, Mich. (Legal Newsline) – The Michigan Supreme Court has determined whether going to work is unavoidable.
It is, the court ruled in a June 30 decision that could pin liability on a late woman’s employer after she slipped on ice while reporting for work. The question presented was whether the hazard presented by the ice was avoidable, since Donna Livings needed to get to Eastpointe Family Dining.
Employers will now have to think twice about whether their arguments that a hazard is open and obvious will work thanks to the 4-2 decision authored by Justice David Viviano.
“We hold that an open and obvious condition can be deemed effectively unavoidable when a plaintiff must confront it to enter his or her place of employment for work purposes,” he wrote.
“However, in assessing this question, it is still necessary to consider whether any alternatives were available that a reasonable individual in the plaintiff’s circumstances would have used to avoid the condition.”
That will still need to be determined in Livings’ case. She sued Eastpointe and other companies after her 2014 fall, with one of those defendants arguing she could have entered through the front door instead of the employee entrance or could have parked in a different spot.
Livings could not get to her feet after her initial fall and had to crawl to the restaurant. Injuries led to three surgeries.
Livings passed in 2020, and her estate continues to pursue her lawsuit.
Justice Brian Zahra dissented, writing the majority has shifted the focus of the open and obvious doctrine’s special-aspects exception from an objective base to an examination of individual characteristics and whether the hazard would be open and obvious to them.
“(A) person’s employment is simply not a relevant consideration in determining whether a condition was itself effectively unavoidable for purposes of the special-aspects doctrine,” he wrote.