Postal carrier who fell on ice in driveway cannot sue property owner
Myra Walker suffered serious injuries when she fell on "black ice" in Mary Kilpatrick's driveway. Kilpatrick's insurer sought to dismiss the claim, arguing that the ice was an "open and obvious danger" that a reasonable person would have been able to discover upon casual inspection."
The Court of Appeals majority pointed to the general winter conditions and to Walker's experience living year-round in Michigan weather conditions, to hold that the ice, though not visible, was "open and obvious." It also rejected her argument that she had no choice but to confront the condition in order to deliver the defendant's mail. Although the lack of a viable, safe alternative route renders the open and obvious doctrine inapplicable to an injury, the two majority judges suggested that Walker could have picked her way through icy spots on the driveway or walked through the snow to Kilpatrick's door [of course prior decisions of the court have held that stepping where there is snow and potential ice beneath it, also constitutes an intentional encounter with risk]. Judge Shapiro emphasized the latter decisions in dissenting from the Court's decision: he pointed out that while jurors might well conclude that it was not negligence for Kilpatrick to fail to salt her driveway, this was not an appropriate circumstance for the application of the "open and obvious" defense. Walker had no safe route by which to approach the Defendant's home.