State Supreme Court Doctrine Not "Open and Obvious" to Blind Victim Who Sues After Devastating Fall on Ice

The Oakland Press

Publishe: May 11, 2012
By: Jerry Wolffe

A lawsuit was filed Thursday in Macomb County Circuit Court against an apartment complex on behalf of a blind man who fell on the ice and broke his ankle outside of the Clinton Township building.

Attorney Richard Bernstein, who is blind, said the case against Green Valley Apartments, Inc., of Clinton Township is not just a “slip and fall” one on behalf of his client, Darrick Calhoun, 48, who suffered a broken right ankle and permanent loss of mobility in the limb.

The Farmington Hills attorney said this is a “direct challenge to the Michigan Supreme Court doctrine of ‘Open and Obvious.’”

The ‘Open and Obvious’ doctrine states that if, for example, ice on a sidewalk, or a hole in a parking lot, cracked cement or a pothole on any public property is large enough it is obvious and therefore an individual is required to avoid the danger.

The court has found that a blind person is held to the exact same standard as a person with sight, Bernstein said.

“How can a blind person see such a dangerous situation?” he added.

“This interpretation by the Michigan Supreme Court makes Michigan a horribly dangerous place to live for blind people.”

The case was assigned to Judge Peter Maceroni. The suit is seeking at least $25,000 in damages for Calhoun, who was hospitalized for five days after the Jan. 8, 2010 fall outside of the Green Valley Apartments, Inc., in Clinton Township and spent 19 days in a rehabilitation center.

A manager at the apartment refused comment Friday on the property that is owned by Goodman Investments Co. of Royal Oak. A worker at Goodman Investments said the owner “does not wish to comment at this time” on the lawsuit.

After two surgeries, Calhoun now uses a cane for his blindness with one hand and a hip-high cane with the other to help support his body while he walks, he said.

“I still feel pain,” he said. “My balance is so bad I have to use two canes.”

Bernstein said it is a precedent-setting case.

“It’s unbelievable that the Michigan Supreme Court has created a biased doctrine like this,” he said. “How can a blind person see ice, a construction site or a hole? Because you were supposed to see it, it eliminates liability on the part of the entity that created the potential danger.”

“Someone like Darrick is held to the same standard and that’s nonsensical,” said Bernstein, who fell into a hole on a sidewalk being repaired in downtown Birmingham on Thursday. There was no fencing or anything in the area to indicate danger, he said.

“Birmingham was following what the state Suprme Court had told them to do under the “Open and Obvious” doctrine.

“We have 200 years of common law from our English history that says a blind person should be able to go out and about without facing life-threatening danger,” he said. “The Michigan Supreme Court overturned 200 years of precedent when it created he ‘Open and Obvious’ legal interpretation,” Bernstein said.

He said his goal was to take the case all the way to the state Supreme Court because the law doesn’t make sense for those who are blind or someone who has a disability.

“The court in the ‘open and obvious’ doctrine has placed blind people at risk throughout our state for no reason,” Bernstein said. “(The doctrine) is saying the more dangerous you make the property, it eliminates all liability if someone is injured.”