Show me a sign

Mike Butler, Bernstein and Bernstein

This column is something of a cross-over. Kind of like the cartoon episode when the Jetsons visited the Flintstones. Or, when the cast of Green Acres met the folks from Petticoat Junction. The merry mix-ups that resulted on those special occasions were hilarious.

Here we will start of with Michigan premises liability law and in the end meet up with Michigan auto negligence law. Merry mix-ups there will be, but any resulting laughter will need to come from a laugh track machine.

The picture above shows one of the warning signs posted on the wall of each of the entrance and exit ramps of the Ford Auditorium underground parking structure, just east of the intersection of Jefferson and Woodward, across the street from the City-County Building in Detroit. The ramps are very narrow, with about 18 inches of clearance between the side of an average car and each of the ramp walls. If a pedestrian disregards the warning and walks up or down the ramp, it takes a very careful driver indeed to avoid contact. It does seem odd that people walk on the ramps, when the structure provides a covered stairway from the parking levels to Jefferson Avenue. Those who disregard both the warnings and the stairway and walk the ramps only save about a dozen steps over those who use the stairs.

The huge irony in this is that many Wayne County Civil Division Judges habitually walk the ramps despite the warnings and despite the hazards. I don't think all the judges park in the Ford structure, but I can safely say that every Wayne County Judge I have seen that parks in the structure walks up and down the ramp. I have encountered them as I have driven down the ramps entering and have driven up the ramps exiting. I have seen a judge walk down the ramp, with his or her back to traffic, while talking on his or her cell phone. I have seen a judge walk up a snow-covered ramp on the morning of the worst weekday snowfall of the horrible winter of 2014.

The supreme irony in this is that these same Wayne County judges will then walk into their courtrooms and dismiss the cases of innocent accident victims under Michigan's Open and Obvious doctrine.

Judge: Counsel, I am granting the Defendant's Motion for Summary Disposition. The black ice he fell on was Open and Obvious.

Attorney: But, your Honor, the ice was invisible.

Judge: Yes, but the Defendant has a witness who says there was a small patch of snow three blocks away from the accident scene. Your client should therefore have known that there was a possibility that there could be invisible black ice on that porch.

Attorney: But, Judge, my client is a policeman and that porch was at a house where he was responding to a domestic dispute call. The 911 caller said the home owner had pulled a gun.

Judge: So?

Attorney: So? He had to do his job. If he didn't go onto that porch he would have lost his job, at best, or there could have been lives lost at worst. Whatever the hazard was, it was unavoidable under the circumstances.

Judge: Not so. He could have used the back door.

Attorney: What back door?

Judge: All municipal fire codes require two entrances to a house. I am sure there was a back door. There had to be. And so your client had a choice. He didn't have to use that front door or go on that porch. Haven't you read the Hoffner case, counsel?

Attorney: I did, but I thought I was reading the latest issue of Mad Magazine. So, let's say there was a back door, what proof is there that the back porch had no ice on it?

Judge: What proof do you have that there was? Your client didn't bother to look back there, did he?

Attorney: Judge, when he went up the walk he looked through the front window and saw the owner with a gun in his hand.

Judge: Counsel, we do agree that your client fell, do we not?

Attorney: We do.

Judge: Then, obviously your client was not acting with reasonable care for his own safety at the time of his accident.

Attorney: Not to get personal, judge, but on the way in here this morning, I saw you walk up the Ford Auditorium parking ramp, though there is a "Danger, Don't Walk on Ramp" sign in plain view and it happened to be snowing at the time. How can you rule that my client wasn't acting reasonably?

Judge: Counsel, I did not fall.

Attorney: So?

Judge: So, obviously I was acting reasonably.

Attorney: So you habitually walking up that narrow ramp against traffic and in disregard of an explicit warning isn't negligent? As a matter of law?

Judge: You are correct. Attorney: Judge, when do the rest of the Marx Brothers arrive?

Judge: Counsel, I believe you are in contempt.

Attorney: Well, that's Open and Obvious, at least.

One brave lawyer did point out this behavior to one of the offending (I'm sorry) reasonable judges-away from the bench. That judge did admit that he/she could probably not sue the structure if he/she fell.

Well, I think Michigan law will go a bit further than that. (Here's where the crossover comes in). According to a recent case, the ramp walking judges would not be able to sue a driver that hit them on the ramp-even if that driver was looking down checking his email at the time of impact.

In the case of Ascencio v Snider, Case No. 316643, decided September 23, 2014, the Michigan Court of Appeals threw out the case of poor Mr. Ascencio, a man on a bicycle who had the bad taste to have the right of way on sidewalk that Mr. Snider had blocked with his car while he was waiting to turn out of a bank parking lot. When Mr. Ascencio attempted to proceed around the Snider car, the Snider car struck him.

This, the Court held, was totally Ascencio's fault. If someone is blocking your path, apparently you can only pass them by going behind them. If you try to pass in front of the blocking vehicle you are acting unreasonably as a matter of law. No jury necessary. In addition, as Snider wanted to turn northbound, his only duty was to look southbound (to his left) for oncoming traffic. He had no duty to look to his right for people like Ascencio who were approaching from the right. Or, dare I say for school children who may have had the bad luck to have their school built on what was the passenger side of Snider's vehicle.

The Michigan Court of Appeals really didn't like Ascencio. They bounced him out of court on two separate grounds. First, Snider had no duty to even look for him. And second, he, Ascencio was more than 50% negligent for attempting to pass in front of him. I guess trying to pass behind him would have been different?

In any case, given the ruling in Ascencio, any motorist can hit, with impunity, a judge (or anyone else, I guess) walking up or down the Ford Auditorium ramps. There is, after all, no reason for a motorist to expect anyone to be on the ramps, given the signs and all.

So, a Michigan court has held that a motorist, in Snider's position, had no duty to avoid Mr. Ascencio, a man on a bike in plain view. However, if instead of being a man, Mr. Ascencio had been a patch of invisible black ice, that same Michigan court would have imposed on Mr. Snider an absolute duty to avoid him.

Cue the laugh track.


Mike Butler has been a practicing attorney in Michigan since 1980. After spending the first years of his career in general practice, he focused on the area of litigation, primarily personal injury, in the late 80s. A graduate of Detroit Catholic Central High School, and Oakland University, where he earned a Bachelor's degree in Political Science. Butler earned his JD degree at Wayne State University Law School. He is currently part of the firm of Bernstein and Bernstein in Southfield.

Published: Fri, Apr 17, 2015