The tragedy that occurred earlier this month at an outdoor music event in Houston, leaving at least eight attendees dead and hundreds more injured, has subsequently spawned more than two dozen liability lawsuits naming everyone from the performer to the promoter, and even the venue.

Liability law is somewhat complicated, but if you were injured because of a slip, trip, fall, or other hazards on the premises you were on, you may be entitled to bring suit against the possessor of the property for your injuries.

Slip and fall cases are based on tort law, which means the burden of proof is on you (the victim). to prove the general elements of a negligence claim. Proving liability or negligence can become complex fairly quickly, which is why it’s important to consult with a personal injury attorney as soon after your accident as possible.

Elements for Establishing Negligence in a Premises Liability Claim

There are four basic elements that you (the plaintiff) must prove in establishing a premises liability claim (e.g. the defendant):

• The defendant owed you a legal duty;
• The defendant breached that duty;
• The defendant’s breach of their legal duty was a proximate cause of your injuries, and;
• The plaintiff suffered damages as a result of the defendant’s breach of a legal duty to keep you safe.

The Caveat: Open and Obvious

Whether or not a hazardous condition is considered “open and obvious” also plays a major role in any premises liability claim. If a hazard is so blatant, referred to in court as “open and obvious,” that a reasonable person would take care to avoid it, the plaintiff may be barred from making his or her claim. Because most defendants will use this issue as a defense in a premises liability claim, “open and obvious” has become the fifth hurdle a plaintiff must establish did not exist.

“Possession and Control” of a Property Establishes Legal Duty

The first step in a premises liability case is to establish that a defendant owed you a legal duty, and the extent of the duty owed. Generally, a defendant’s legal duty arises out of their possession and control over the property.

It’s important to understand that possession and control is not the same as “ownership” of a property. In fact, the Michigan Supreme Court has found that while the same individual or entity may hold both “ownership,” in addition to “possession and control,” they are distinctly different concepts.

For example, the owner of a shopping complex may rent individual retail spaces to small businesses, but still maintain the safety and upkeep of the parking lot and sidewalk. In such a scenario, the mall owner would likely be responsible for the injuries of a patron injured by a slip and fall in the parking lot, but would not be responsible if that same individual fell inside a store; although the owner holds title to the store space, they are not in possession or control of that rented space at the time the injury occurred.

In Michigan, the extent of the duty owed by the possessor of land is dependent upon the purpose for which a plaintiff was on the land at the time they sustained an injury.

To learn more about what the duties of a property owner are, and whether your injury is the result of someone else’s negligence, call the attorneys at Turner and Turner at (248) 355-1727 for a free, no-obligation consultation and let us help determine whether you have a viable legal claim.

After years of litigation by the family of a woman who was hit by a truck in the parking lot of a Bay City, Mich. Menard’s, the Michigan Supreme Court declined to hear an appeal by Wisconsin-based home improvement chain.

In declining to take the case — months after hearing oral arguments — the court eschewed weighing-in on a personal-injury case at a big-box store, which may have consequences for retailers and their customers.

The court’s demurral allows an appeals court decision to stand against Menards, which was sued after a shopper was struck by a pickup truck while pushing a cart outside the Bay City store in 2011. The woman, Virginia Rawluszki, ultimately died from injuries sustained in the accident, two years later, at age 72.

Her family contends that Menards should have installed stop signs to slow down traffic at a crosswalk. In its defense, the retailer asserted the risk of being hit in a parking lot is “open and obvious,” a key legal standard in Michigan that often protects property owners from liability.

“You’ve got a square building with a square, rectangular parking lot. There’s nothing else around,” Menards attorney Alan Sullivan reportedly told the Supreme Court in January. “There’s nothing else that is different, unusual … at all when you’re out there.”

Under Michigan law, a premises owner may be held liable for personal injuries or damages resulting from dangerous conditions on their property. This is known as a premises liability claim.

While a premises owner may be held liable for dangerous conditions on their property, they are not liable if the condition was “open and obvious,” which means the danger is “open and obvious if an average user, with ordinary intelligence, would have been able to discover the danger upon a casual inspection.”

However, two courts declined to dismiss the lawsuit. The Supreme Court, in a unanimous order at the end of June, said it won’t get involved, leaving an appeals court decision in favor of Rawluszki’s family and sending the case back to a Bay County judge for trial or possible settlement.

“It doesn’t have the strongest precedent of a written opinion, but it’s the second-best thing the Supreme Court could have done: Let a jury decide,” attorney Philip Ellison, who argued on behalf of the family, told the Associated Press.

In a court filing, Menard’s attorney said the presence of vehicles moving in a parking lot should be obvious to “an average person with ordinary intelligence.”

Justice Kurtis Wilder, the state’s newest Supreme Court justice, recused himself from the case as he was on the appeals court panel that chose to let the case proceed. Wilder wrote in favor of Menards in that 2-1 decision.

Under Michigan law, a premises owner can be held liable in a tort action for personal injuries or damages resulting from dangerous conditions on their property. This is known as a premises liability claim.

While liability in Michigan slip and fall cases largely depends on the legal status of the plaintiff at the time they were injured, a personal injury attorney will also evaluate the specific facts and circumstances surrounding the fall to determine whether there is a viable case. Many of these inquiries will center on whether or not the dangerous condition causing the fall was open and obvious under Michigan law.

While there are two exceptions to the open and obvious doctrine: for conditions that are “effectively unavoidable,” or ones that pose an “unreasonably high risk of injury,” the standard for proving “special aspects” exist, nullifying the “open and obvious” doctrine is extremely high.

However, if the case doesn’t settle, it could be a win for consumers whose protections under the guise of “tort reform” are always under threat. Menards may choose to not role the dice and settle.

The law, enacted on Wednesday, Jan. 4, 2017, lets cities defend themselves by saying sidewalk defects are “open and obvious.” The general rule of thumb is that the owner of a premises has a duty to exercise “…reasonable care to protect the invitee from any unreasonable risk of harm caused by a dangerous condition on the land,” according to the Michigan Court of Appeals.

However, the “open and obvious doctrine” is a major exception to this general rule and one used as a defense in many “premise” liability cases. According to the doctrine, an “invitor,” in this case a municipality, is protected from liability if the danger is an open and obvious one.  The foundation for this rule is that the open and obvious nature of the “dangerous situation” serves as a warning to the invitee and the person is expected to recognize the potential danger and protect themselves against it. Supporters of the new law say budget-strapped places such as Detroit pay millions annually in sidewalk-injury settlements and should be able to use a defense available to businesses.

The Michigan Association of Justice, a group of plaintiff’s attorneys, had called for a veto, saying the bill effectively make cities entirely immune and removes the incentive to properly maintain sidewalks. Under existing law, cities aren’t liable unless someone proves the city knew or should have known about the defect “…at least 30 days before the injury and the unevenness in the walkway is at least 2 inches.”

In January 2015, a woman filed suit against the City of Holland claiming the city “breached its duty to the public” by not properly maintaining and repairing an uneven portion of sidewalk on the western side of River Avenue between Seventh and Eighth streets, according an article in the Holland Sentinel.  The woman was walking on the sidewalk May 21, 2014, when she fell “due to a vertical discontinuity of two inches or more in the sidewalk,” the paper noted. As a result of the fall, she claimed to have received multiple fractures of the wrist and a fractured foot; the woman and the city ultimately settled the case in December 2015 for $10,000, according to the article.

Slip-and-fall lawsuits have become extremely difficult in Michigan courts, especially after another strict standard was set in 2012 by the state Supreme Court. Feet flying in the air because of water, ice or snow? Case dismissed — unless someone absolutely can’t avoid the hazard. The annual number of slip-and-fall cases filed in state courts is hard to come by since Michigan court statistics don’t break down lawsuits that way. But Nelson Miller, a professor of tort law at Thomas M. Cooley Law School in Grand Rapids, said there has been a significant decline based on his expertise in the field and conversations with lawyers. “We underestimate the seriousness of these cases,” Miller said. “There can be job loss and everything that follows from it. In the elderly population, falls can cause death.”

Miller noted that the state Supreme Court began limiting slip-and-fall lawsuits years ago, but the bar was raised even higher in 2006 resulting from a case involving a woman who fell and cracked a bone in her lower back while walking into a fitness club. Apparently, ice had formed at the entrance, despite the owners insisted that the walkway had been salted earlier that day. The ice was “open and obvious,” and nothing forced the plaintiff to enter the club at that particular time, the court’s Republican majority said. “Michigan, being above the 42nd parallel of north latitude, is prone to winter,” Chief Justice Robert Young Jr. wrote in the court’s 4-3 decision. “And with winter comes snow and ice accumulations on sidewalks, parking lots, roads, and other outdoor surfaces. … Landowners are not charged with a duty of ensuring absolutely the safety of each person who comes onto their land, even when that person is an invitee.”

The test to determine if a danger is open and obvious is whether “…an average user with ordinary intelligence would have been able to discover the danger and the risk presented upon casual inspection,” according to Michigan law. Because the test is ostensibly objective, the court “…looks not to whether plaintiff should have known that the condition was hazardous, but to whether a reasonable person in his position would foresee the danger,” according to the Michigan Court of Appeals.  The open and obvious doctrine was initially based on Restatement of torts, which “…formulates clear principles of law governing apportionment of liability in cases where there are more actors than a single plaintiff and single defendant, different degrees of blameworthiness, derivative claims, or different tort claims against different defendants in the same case,” according to the American Law Institute.

According to Restate of Torts, “…a premises possessor is not liable to the invitees for harm caused by known or obvious dangers unless the possessor anticipates that harm despite the knowledge and obviousness. A possessor when he anticipates the harm should warn or protect an invitee against open and obvious dangerous conditions.”

The bottom line is that it has become much more difficult for injured or aggrieved parties to seek redress and compensation from Michigan municipalities because of both the new law and a series of erosions in plaintiffs’ rights by the legislative and judicial branches of the state.

One category of injury from falls among the elderly that you might not be aware of is that of traumatic brain injury (TBI).  TBI is, in fact, a very serious health concern for seniors.  According to SeniorJournal.com, approximately 22% of all TBI-related hospitalizations involve adults aged 75 years and older, and males are more often diagnosed with TBI than are females (59%).

Ileana Arias, director of the National Center for Injury Prevention and Control at the Centers for Disease Control, was quoted in the web article as saying that “falls are the leading causes of TBI.”  She went on to describe a Traumatic Brain Injury as being “caused by a bump, blow or jolt to the head that affects how the brain normally works.”

“Adults ages 75 and older have the highest rates of TBI-related hospitalizations and death, tend to recover more slowly or die more often from these injuries than do younger people,” says Dr. Arias.

As opposed to a broken bone, the symptoms of a TBI can be subtle, and, therefore, missed for days or even weeks.  TBI symptoms such as confusion, speaking or thinking slowly or becoming lost are also symptoms associated with aging and dementia, and therefore not as easily identified as a problem in an elderly person.  It is essential to have a senior evaluated for TBI by a healthcare professional if they have sustained a fall or an injury relating to a fall.

Of course, preventing the fall to begin with is the best way to prevent TBI.  Here are some of Dr. Arias’ recommendations to help prevent falls in the first place:

Exercise is important as it improves balance and coordination, preventing the likelihood of a fall.

1. Make home and surroundings safer by making modifications such as placing frequently used items within reach, installing grab bars next to the toilet and in the shower/tub.
2. Ask the senior’s health care provider to review all medications – both prescription and over-the-counter, as the way some medicines can work in the body can change as a person ages.
3. Have vision checked regularly.  Poor vision can lead to falls.

Also, as the winter months begin to draw near, please make sure to clear snow and ice from the walkways and driveways of seniors’ homes.

Most falls are preventable. Many people attribute falls to being clumsy or not paying attention, but many risk factors exist. Risk factors include physical hazards in the environment, age-related issues and health conditions. Reduce your risk and find fall hazards in your workplace and home to prevent injuries and keep others safe round the clock.

Remove common fall hazards:      

• Keep floors and stairs clean and clear of clutter
• Maintain good lighting both indoors and on outdoor walkways
• Secure electrical and phone cords out of traffic areas
• Use non-skid throw rugs in potentially slippery places, like bathrooms
• Install handrails on stairways, including porches
• Use a sturdy step stool when climbing or reaching for high places
• Clean up all spills immediately
• Wear sensible footwear
• Never stand on a chair, table or surface on wheels
• Arrange furniture to provide open pathways to walk through
• Periodically, check the condition of outdoor walkways and steps and repair as necessary
• Remove fallen leaves or snow from outdoor walkways
• Be aware that alcohol or other drugs, including prescription and over-the-counter medicine, can affect your balance and increase risk of falling

Older adult falls

Older adults are more prone to become the victim of falls and the resulting injuries
can diminish the ability to lead active, independent lives. According to the Centers for Disease Control and Prevention, the following tips can greatly help older adults prevent falls, but are beneficial to those of all ages.

• Stay active: Chances of falling can be reduced by improving strength and balance. Examples of activities include brisk walking, tai chi and yoga.
• Fall-proof your home: This includes taking advantage of the tips above and removing all tripping hazards.
• Review your medications: Have your doctor or pharmacist review all the medications you take both prescription and over-the-counter. Some medications or combination of medicines can make you drowsy or light-headed, which can potentially lead to a fall.
• Check your vision: It’s best to have your vision checked at least once a year to make sure you have the best prescription for your glasses. Poor vision greatly increases your risk of falling.

Source: National Safety Council