Kitch - Attorneys & Counselors
Joppich and Wittmann Obtain and Uphold Open and Obvious Doctrine Dismissal in Premises Liability Claim

July, 2018

Richard Joppich, Beth Wittmann

On July 24, 2018, the Michigan Court of Appeals upheld a Jackson County Circuit Court dismissal of  an action for personal injuries arising out of a trip over a curb that was elevated above the sidewalk abutting a parking lot at a healthcare facility.

Richard Joppich, of the Kitch Okemos office, argued the case to the trial court establishing that the condition on the property was open and obvious and that there were no unique aspects to the condition that would make it unreasonably dangerous or unavoidable.  The Court agreed and dismissed the action which prompted an appeal by the plaintiff to the Michigan Court of Appeals. 

Beth Wittmann, Kitch appellate specialist on such issues (among others), from the Detroit office, successfully managed the appeal, briefed the issues, and presented oral arguments before the appeal Judges Stephens, Shapiro, and Gadola.  In an unanimous unpublished opinion, the appeals court affirmed the dismissal noting that whether or not the plaintiff recognized the condition before the fall was not dispositive but rather “… a reasonably prudent person would see the height difference between the curb and the sidewalk and step over it,”  and that the plaintiff argued that she actually was able to see the condition after she fell  (it was there to be seen).  The court also found that the condition was not of a character that would remove it from the open and obvious doctrine recognizing that the condition would not ordinarily present a high risk of severe injury nor was it effectively unavoidable.  The fall was from a walking position and plaintiff had taken a  different route into the facility.