Markman says MSC majority tripped up in pothole case

"Darkness at the break of noon ...
"Eclipses both the sun and moon ..."
- Bob Dylan, "It's Alright, Ma (I'm Only Bleeding)"

Pavement, potholes, injured plaintiffs and demands for damages have been a much tougher sell ever since the Michigan Supreme Court announced its open-and-obvious-special-aspects analysis in Lugo v. Ameritech Corp., 464 Mich. 512 (2001).

But throw in a debate about lighting and you just might have something.

In Galliher v. Trinity Health-Michigan, an unpublished per curiam decision by the Michigan Court of Appeals, the panel said a woman who fell in a large pothole could get to the jury on her personal injury claim.

The trial court noted that plaintiff provided photographs, which showed that the conditions were sunny but that a building's shadow was obscuring the pothole.

The Galliher panel framed the issue this way:

"[W]hether the absence of natural light and illumination from other lighting sources can cause an otherwise open and obvious condition to be hidden for purposes of premises liability."

The panel (Judges E. Thomas Fitzgerald, David H. Sawyer and Peter D. O'Connell) concluded:

"Plaintiff presented evidence that a rather large, deep pothole existed in defendant's parking lot, that plaintiff did not see the pothole even though she looked where she was walking, that the pothole could have been seen had there been adequate illumination, whether natural or artificial, and that at the time of the fall it was dark and there was no artificial light in the area. ... [W]e agree with the trial court that plaintiff established a question of fact regarding whether the pothole was open and obvious."

Last week, the Michigan Supreme Court denied leave to appeal on a 6-1 vote. There was no comment from the majority in its Feb. 8 order, but an obviously flabbergasted Justice Stephen Markman had plenty to say.

"Because I cannot imagine any more 'open and obvious' condition than a pothole in a driveway during daylight hours, I would reverse the Court of Appeals judgment and remand for entry of an order granting summary disposition to defendant. '[P]otholes in pavement are an "everyday occurrence" that ordinarily should be observed by a reasonably prudent person.' Lugo v Ameritech Corp, Inc, 464 Mich 512, 523 (2001)."

Markman scolded his colleagues and shined his own light on the record.

"It is hard to know whether the majority is more persuaded here by the argument: (a) that a shadow cast by a hospital on a pothole constitutes a 'special aspect,' thus removing the pothole from the realm of the 'open and obvious'; (b) that plaintiff's testimony that she fell during 'dark evening hours' should be accorded credit despite the fact that 4:00 pm to 5:00 pm on the afternoon of March 1, 2003, the time of the accident, was a daylight hour; (c) that plaintiff's simultaneous arguments that there were sunny conditions at the time of her accident, thereby creating a shadow over the pothole, and that there were 'overcast' conditions at the time of the accident with 'heavy, dense clouds and fog and scattered snow showers,' thereby obscuring the pothole, should be accepted as legitimate alternative arguments; or (d) that plaintiff's assertion that she 'did not discover the condition' is somehow relevant to this Court's analysis of premises liability cases."

Markman said that the majority was pushing Lugo into the shadows.

"That any of these arguments have been found to be persuasive by this Court evidences why Lugo has become an increasingly 'dead letter,' to be replaced by no coherent alternative rule of law."

So, should we light a candle for Lugo?