The Hazards of Black Ice

Michigan winters can be dangerous due to slip and falls on snow and ice. Oftentimes individuals fall because the ice is not visible such as in cases involving "clear" or "black-ice."

Victims pursuing litigation as a result of "slip-and-fall" injuries frequently contend with the open and obvious doctrine. The open and obvious doctrine asks whether a person of "average intelligence" should have discovered the hazardous condition upon casual inspection. If a hazard causing a fall is found to be open and obvious, the victim is typically left with no cause of action.

When applying the open and obvious doctrine to conditions involving the natural accumulation of ice and snow, Michigan courts continue to assert that it is reasonable to have a common knowledge of weather hazards that occur in Michigan during the winter months. However, when the potentially hazardous condition pertains to “clear” or “black” ice the answer to whether it will be considered open and obvious will depend upon the specific facts of each individual case.

Until recently, there was not a published decision on the issue of whether black ice, in and of itself, was an open and obvious condition. In a recent case, published by the Michigan Court of Appeals, the court defined black ice as having an overriding principle of being “invisible or nearly invisible,” and held that the definition is inherently inconsistent with the open and obvious doctrine. Using this black ice definition, the Courts have declined to extend the open and obvious doctrine to black ice cases where there was no evidence that the ice would have been visible on a casual inspection and in the absence of some other, visible factors of a potentially hazardous condition.

However, under certain conditions where other facts should alert Michigan residents to the likelihood of the slippery condition, ice may be considered open and obvious. In cases where the open and obvious rule is allowed to prevent a claim, the defense is able to point to some additional evidence that the victim should have known that the conditions may be slippery. For example, the court has held the conditions to be open and obvious where:

• It was actively snowing
• The victim slipped before actually falling
• The victim witnessed others slipping or taking precautionary measures to avoid from falling
• Ice camouflaged by a layer of snow

Unless there is some showing that the black ice in question would have been visible on casual inspection prior to the fall or without some other indicia of a potentially hazardous condition in the area, the Court has refused to find that black ice, by itself, is an open and obvious danger.

Therefore, if you of a loved one was injured as a result of a slip and fall on clear or black ice, then you likely have a viable Michigan slip and fall claim. You should contact our experienced Michigan slip and fall lawyers immediately. Please submit a simple, free and confidential legal consultation form now.

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