Court affirms premises liability ruling

By Thomas Franz
BridgeTower Media Newswires
 
DETROIT—A Michigan Court of Appeals panel affirmed a Wayne County Circuit Court ruling that denied a motion for summary disposition after finding that a pothole in a dark parking garage was not an open and obvious hazard.

In Jaros v. VHS Harper-Hutzel Hospital, the court ruled that a question of fact existed on whether a reasonable person would have spotted the pothole.
Judges Cynthia Diane Stephens and Douglas B. Shapiro affirmed in the unpublished opinion, while Chief Judge Christopher M. Murray dissented.

Background

On June 5, 2015, plaintiff Irene Jaros stepped into a pothole inside a parking structure connected to Harper-Hutzel Hospital. She tripped and fell, breaking her left humerus and injuring her left shoulder.

Jaros, an employee at the Kresge Eye Institute, testified during a deposition that she parked in the structure for 10 years on an almost daily basis without tripping and falling.

The court wrote that the sides of the parking structure allowed some natural light into the perimeter of the structure, but on the day of this incident, the plaintiff parked in an interior spot.

The plaintiff testified there was little natural light near her vehicle with only one light at the far end of the structure.

Jaros said she took 5-10 steps from her car before tripping, and she testified she didn’t see the pothole until she was on the ground.

Jaros’ manager notified her sons, who went to the parking structure, found the plaintiff’s car, and took two pictures. One photo showed the pothole and the other showed that overhead lights appear to be on in the parking deck to provide intermittent areas of light.

The court wrote that one of the sons returned to the parking deck a few days later and took more photos which showed the overhead lights to be off and nearly all of the parking area was darkened.

Legal argument

The plaintiff brought a negligence and premises liability claim and contended that there were questions of fact whether the condition was open and obvious.

The defense countered with a motion for summary disposition by arguing the complaint rested on conjecture and speculation because the plaintiff did not know what caused her to fall. The defendant also argued that even if the fall occurred due to the pothole, the condition was open and obvious.
The trial court denied the motion for summary disposition, which led to this appeal.

Analysis

The COA panel opened its analysis by disagreeing with the defendant’s argument on the issue of inadequate lighting.

The court wrote that the photograph taken by one of the plaintiff’s sons later in the day after the fall showed a patchwork of lit areas in the lot, and there was consistency between the plaintiff’s testimony and the photographic evidence.

“Plaintiff argues that a reasonable jury could find her testimony credible and conclude that the overhead lights were not on at the time of the fall and, taking her testimony as true — as we must at this stage — we agree,” the court wrote.

The panel added that there is a question of fact on whether a reasonable person would have discovered the pothole upon casual inspection.
Dissent

In his dissent, Murray wrote that he would have granted summary disposition because the pothole was an open and obvious danger.

While citing several previous cases, Murray wrote that the lighting of the parking garage doesn’t preclude application of the open and obvious doctrine, and the pothole was readily observable upon casual inspection.

“It is undisputed factually that plaintiff had parked on this floor many times in the past, and it is undisputed legally that potholes are a common occurrence that should reasonably be foreseen,” Murray wrote.

Attorney’s comments

Plaintiff’s attorney Mark R. Bendure of Bendure & Thomas in Grosse Pointe Park said the key to this case was emphasizing the real-world conditions the plaintiff faced at the time of the fall.

“There are a lot of cases in which the plaintiffs lose and they say it’s open and obvious and it creates an artificial presumption that potholes are open and obvious, because often they are, but it doesn’t change the fact that you’re supposed to look at the real-world conditions,” Bendure said. “I think that needs to be re-emphasized.”

Bendure said premises liability cases are fact-specific by nature, and real-world conditions typically cause the accident in the first place.

“In a parking lot where you have to go from an interior parking spot to the elevator, you have to walk on the concrete. This is a foreseeable area for people to walk, which is all the more reason it’s imperative to have good lighting and to maintain the surface,” Bendure said.

Defense attorney Anita Comorski did not respond to requests for comment on this case.