Fast
Facts:
As
a general rule, a plaintiff prevails in a premises liability
action by proving that the defendant premises owner owed a duty
to the injured victim, that the defendant breached that duty,
and that the breach caused the plaintiff’s injury.
Michigan
appellate courts now hold a blind person subject to the standard
of a sighted person.
This
situation undermines the Michigan Persons With Disabilities Civil
Rights Act and long-standing common law precedents.
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“You
shall not place a stumbling block in front of a blind man.”1
In
the past, Michigan jurisprudence treated disabled persons in a fair manner.
In personal injury actions, a court took into account the fact that a
deaf individual could not hear a warning siren, that a paraplegic could
not step over a barrier, and that a blind man could not see danger in
his path.
Unfortunately,
recent judicial decisions effectively repudiated this common-sense approach.
Drastic changes in the rights of blind injury victims who bring premises
liability claims illustrate this dangerous trend.
At
the outset, I should explain my personal perspective. I am a practicing
attorney who concentrates on advocating for disadvantaged and disabled
individuals.
I
am also blind. Rather than dwelling on my limitation, I would rather be
known for my capabilities and accomplishments.
This
article, however, draws from both aspects of my life—as a legal
practitioner and a blind individual.
Traditionally,
jurists did not regard a blind person as negligent for accidentally
encountering hazards that could be avoided by a sighted person.
According
to a venerable legal scholar, this rule simply affirmed the ability and
rights of the disabled ‘‘to live in the world.’’2
Many
years ago, a New York court eloquently observed that ‘‘blindness
of itself, is not negligence, any more than the obscurity of sight by
the absence of light.’’3
In
other words, all are blind when the lights are off. At times,
everyone has to walk in the dark. Under these circumstances, a sighted
individual is expected to exercise the same caution as one without vision.
Sadly,
Michigan courts are disregarding this eminently sensible view. Instead,
appellate panels have dismissed claims by injured blind persons against
negligent property owners, by requiring those who lack vision to avert
hazards apparent only to a hypothetical ‘‘reasonably prudent
sighted person.’’
As
a general rule, a plaintiff prevails in a premises liability action by
proving that the defendant premises owner owed a duty to the injured
victim, that the defendant breached that duty, and that the breach caused
the plaintiff’s injury. The defendant may escape liability, by showing
that the plaintiff failed to use the caution of a reasonably prudent person,
in perceiving and avoiding ‘‘open and obvious’’
danger.
While
the ‘‘open and obvious’’ defense may seem conceptually
sound, the following decisions show how its application has become downright
absurd.
In
Lugo v Ameritech Corp, Inc,4
the Michigan Supreme Court denied the claim of a woman who was injured
as she walked across a parking lot. The parking lot owner escaped liability,
because the plaintiff was watching out for moving vehicles and did not
see the pothole that caused her to trip and fall. According to the Lugo
Court:
The
impact of this new standard, which focuses on the condition of the property
and ignores the condition of the victim, is shown in subsequent cases.
In
Lauff v Wal-Mart,6 an
elderly blind woman broke her hip when she slipped and fell on wet debris
in the designated ‘‘handicapped’’ restroom stall
of a Michigan department store. A federal judge dismissed her premises
liability claim, after finding that Michigan case law prohibited any
consideration of the fact that the woman could not see the litter on
the restroom floor. The court observed:
Earlier
this year, the Michigan Court of Appeals also decided to hold a blind
person subject to the standard of a sighted person. In Sidorowicz
v Chicken Shack,8
unpublished opinion per curium (Docket No 239627), a blind man,
whose multiple sclerosis also impaired his gait, could not recover for
an injury in a restaurant, when he slipped and fell on a pool of water
on its floor. The Sidorowicz panel summarized the effect of Lugo
on the disabled, as follows:
Plaintiff
argues that the hazardous condition was not open and obvious to him
because he was legally blind. However, the Michigan Supreme Court has
rejected plaintiff’s argument....
By
focusing on the unsafe condition before the plaintiff is injured, the
Lugo
Court rejected any consideration of ‘‘special aspects of
the plaintiff.’’9
In
other words, if you are blind or have other physical limitations, you
leave your house at your own risk. If a store, restaurant, or office building
fails to promptly remove a dangerous condition, it is your fault if you
get hurt when you encounter it.
This
situation is not only unfair, but also undermines current statute, the
Michigan Persons With Disabilities Civil Rights Act,10 which
provides the disabled with the right to freely and fully participate
in our society.
Among
other things, this statute requires a building owner to mark its elevator
buttons with Braille, so that I can locate the right floor. At the same
time, Lugo protects the building owner, if its elevator car stalls
on another floor and I step through an open door into an empty elevator
shaft.
Troubling
questions also arise about other common hazards. Does a motorist still
have a duty to yield to a blind person who inadvertently strays outside
a crosswalk? Does a construction company have an obligation to put barricades
around its work site? Will irresponsible persons see Lugo as
an opportunity to ignore hazards they create or control? Will this ultimately
increase the danger for the disabled, as well as other citizens, as
they go about their daily activities in the real world?
Surely,
the Michigan Supreme Court did not intend its decision to be applied to
the blind in such a Draconian manner, in contradiction of long-standing
legal principles and existing law. There is an urgent need to revisit
this ruling, to ensure fair consideration of the individual capability
of an injured victim.
2.
Prosser, Torts (4th ed), § 32.
3. Harris v Uebelhoer, 75
NY 169 (1878).
4.
464 Mich 512; 629 NW2d 384 (2001).
5. Id. at 523–24 (emphasis
added).
6.
2002 US Dist LEXIS 19080 (WD Mich).
8.
2003 Mich App LEXIS 107.
9. Id. at 5, 7.
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