Opinion
No. 142546.
June 24, 2011.
Court of Appeals No. 294365.
Leave to Appeal Denied June 24, 2011.
I would hold this case in abeyance for Hoffner v. Lanctoe, 489 Mich 877 (2011), a case in which oral arguments are to be scheduled. Both Hoffner and the instant case involve the same "unavoidability" aspect of the "open and obvious" doctrine of Lugo v. Ameritech, 464 Mich 512 (2001). In Hoffner, the plaintiff fell on ice that she admittedly saw before she fell as she was entering a fitness center. The Court of Appeals held that the "open and obvious" doctrine did not bar the plaintiffs claim because the danger was "effectively unavoidable." In the instant case, plaintiff slipped and fell on snow in her friend's driveway as she was retrieving a music CD from her parked vehicle. She admitted that she saw the snow before she fell. Again, the Court of Appeals held that the "open and obvious" doctrine did not bar plaintiffs claim because the danger was "effectively unavoidable." In response, the Court of Appeals dissenting judge asserted, "Plaintiff could have visited another day or informed defendant that she would not visit unless and until defendant cleared her driveway. Plaintiff was neither forced to traverse the slippery surface out of personal necessity. . . nor trapped without any alternative means of escape . . ." Because the "unavoidability" issue is directly implicated in both of these cases, and because there is no apparent reason why the legal standards in these cases should differ, I would abey for Hoffner.