Court upholds verdict against farmer in death caused by falling bale of straw.

Nicholas Jimkoski purchased straw from Peter Shupe.  Unfortunately, when Shupe attempted to load the 700 pound bales on Jimkoski's vehicle, he could not remove one bale that was stacked 11 feet above ground and frozen to the stack.  Shupe left that bale where it was and loaded Jimkoski's truck with bales that were stored partially beneath it, leaving the bale balanced precariously above Jimkoski's truck.  As one might expect, the bale ultimately fell; when it did, it narrowly missed Shupe, struck Jimkoski and killed him.  A jury concluded that Shupe was negligent, that Jimkoski was also negligent (and reduced his verdict by his share of fault), and awarded Jimkoski's family damages for Shupe's percentage of fault in causing the death.  Shupe's insurer appealed, claiming that Shupe could not be sued because the risk of injury to Jimkoski was "open and obvious".

The Court of Appeals unanimously rejected the insurer's claim.  It noted that even under the most aggressive interpretation of premises' liability formulated by the Engler Majority of the Michigan Supreme Court, this claim is not extinguished by the fact that Shupe had created a risk which was "known to the victim" and "avoidable". 

The Court noted that this case had so-called "special aspects" that rendered it either  unavoidable or unreasonably dangerous:  the jury made that precise finding under careful instructions devised by the trial court.  Further, the "severity of harm" which the tenuously hanging bale represented completely justified the jury's decision allocating sixty percent of the fault for the death to the owner of the property, who owed a duty to protect invitees from hazardous conditions on the property. The Court further held that the lower court was correct in allowing the jury to determine that the landowner was actively negligent in causing the fatal incident (at least to the extent of sixty percent of the total cause).

The parties had agreed that the verdict should be reduced by the family's recovery of Social Security benefits, however, the Defendant's insurer argued that it should be able to estimate future cost of living adjustments to Social Security, assume they would be adopted, and use them to further reduce the family's recovery of future economic losses.  The Court rejected that argument based on the uncertainty of the anticipated cost of living adjustments and the language of the pertinent statute, which allows for reduction of future awards by the amount of a "previously existing... statutory obligation".