The open and obvious doctrine is straightforward: plaintiffs cannot recover for injuries from hazards that a reasonable person could have seen, unless those hazards were unavoidable or especially dangerous. This logic undermines most slip-and-fall claims based on snow and ice. As the Michigan Supreme Court put it (perhaps somewhat sarcastically) inHoffner v. Lanctoe, “Michigan, being above the 42nd parallel of north latitude, is prone to winter.” Ice and snow are to be expected and, therefore, are generally open and obvious.
Although a reasonable person would expect ice and snow during a Michigan winter, it doesn’t follow that a plaintiff can assume ice or snow caused his fall. The Michigan Court of Appeals made this point recently in Shurtz v. U-Haul Company of Michigan, holding that it didn’t even need to reach the application of the open and obvious doctrine because there was no real evidence of what caused the plaintiff’s fall. And without evidence of what caused his fall, there was no basis to hold the defendant liable.
The plaintiff in Shurtz rented a U-Haul and slipped as he was climbing into it for the first time in the defendant’s parking lot. There was no evidence of what caused him to slip: “Plaintiff stated that he did not actually see what he slipped on, and he did not feel any icy surfaces when he was on the ground, testified that the only thing he could ‘figure’ was that he ‘slipped on a patch of ice.’ However, he also stated that it could have been oil, and he simply did not know anything about the surface other than the fact that he slipped.”
The Court of Appeals held that this speculation was not enough to create a genuine issue of material fact on the causation element of the plaintiff’s negligence claim. It reasoned that the plaintiff established only “a theory that is quite plausible, but ultimately not supported by evidence that necessarily implies an absence of other plausible theories.” Therefore, the defendant was entitled to summary disposition.
The Court of Appeals also stressed that the trial court had no obligation to consider new evidence submitted with a motion for reconsideration that the plaintiff could have submitted in its original response to the summary disposition motion. Consequently, Shurtz affirms two principles central to the defense of premises liability claims and tort claims in general: speculation does not create a question of fact, and motions for reconsideration are not supposed to be “do-over” responses to summary disposition motions.