Falling plaintiff is down---and out

Patrick Ray was negotiating the handicap ramp on his way to the chiropractor when he fell on ice and suffered multiple fractures of his arm.  He went to Botsford General Hospital, where he apparently fell off an "unstable" operating table.  He sued the owner of the building that housed the chiropractic clinic and the Hospital, but all of his claims were dismissed by the trial judge.  He appealed to the Court of Appeals and this week that court upheld the dismissal.

Both courts ruled that the case against Botsford sounded in medical malpractice, not ordinary negligence, and therefore he needed to (and did not) accompany his complaint with an Affidavit of Merit from a person confirming the merit of his claim.  The Affidavit needed to be signed by a person with qualifications identical to the unknown person responsible for maintaining the operating table or choosing to use an unstable table. 

The claim against the property landlord for negligent maintenance and ice removal was rejected by the trial judge because he decided the "black ice" on which Ray fell was an "open and obvious" hazard to a long-time Michigan resident.    The Appeals Court rejected that conclusion, since all witnesses testified that weather conditions on the day in question provided no warning of a likelihood of encountering ice. 

Nevertheless, the appellate court affirmed the summary disposition of Ray's case because the landlord and the chiropractor claimed they did not expect ice, had not inspected the premises, and therefore were unaware of the danger. The Court did not address whether the premises' occupiers "should have known" of the ice by the time Mr. Ray fell, which is part of the Standard Jury Instruction on the possessor's duty.