COA affirms premises liability ruling for plaintiff.

Byline: Thomas Franz

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 (MiLW No. 08-101163, 12 pages), 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Judges Cynthia Diane Stephens and Douglas B. Shapiro affirmed in the unpublished opinion, while Chief Judge Christopher M. Murray dissented.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...