Matters Column

Michigan shoppers: Watch your step in the grocery aisles

November 29, 2013
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Imagine walking through the produce section in your local grocery store. Your feet slip from under you. You hit the floor.

As you feel the pain of your injuries, you look over and see the culprit: a stepped-on grape lying on the floor.

That's what happened to Nancy Duncan. According to a lawsuit she filed, Duncan slipped on grapes at an Eastern Michigan Meijer store. She said she hadn't seen the grapes before falling. She also noted that some of the "grape residue" was brown, suggesting it had been on the floor for a while.

Meijer countered that its employees inspect store premises hourly and there was no evidence to show that it knew of the grapes before Ms. Duncan fell.

In mid-November, the Court of Appeals ruled in Meijer's favor, stating that whether Meijer had knowledge of the offending grapes was a matter of pure speculation and that the Trial Court had correctly dismissed Duncan's claim.

The Duncan decision aside, there was a time not so long ago when the pain of a slip and fall would have been softened by the prospect of a legal remedy.

A merchant, the theory went, has a duty to maintain safe premises. By failing to clean up grapes on its floor, the store created a dangerous situation for shoppers and therefore should compensate them for pain and medical bills.

But the law changes, and the days of easy recovery for premises liability are long gone. As the Duncan decision demonstrates, Michigan courts are unreceptive to "slip-and-fall" claims. Two legal rules make the job of the plaintiff's lawyer very difficult.

First, Michigan courts do not award damages where a danger is "open and obvious," that is, when an ordinary person would notice it and know to avoid it. Because the legal standard is measured from the viewpoint of the ordinary person, the rule ignores disabilities of individual plaintiffs.

So suppose the grapes were lumped in a huge pile in the center of an aisle, and that genetic modification of the seeds had made these particular grapes glow like neon. Certainly an ordinary person would see the grapes and avoid them.

But in Michigan, even a blind customer who slipped because she could not see the grapes would lose in court under the open and obvious rule. Because the grapes would be obvious to the ordinary person, all customers would lose their lawsuits against the store, even those who suffered from disabilities making it impossible to see the grapes.

So far, the law looks bad — but not impossible — for slip-and-fall cases. After all, if the court will not award damages for open and obvious dangers, a plaintiff's lawyer might simply argue that the danger was not in fact open and obvious. Perhaps the grapes were lying in a dark corner, where even an ordinary person would not have noticed the danger.

Here, a second legal rule bars victory for the plaintiff. If the danger was not easily noticeable, say the Michigan courts, then how could the storeowner be expected to clean it up? The idea is that storeowners must be able to see danger before they can be held responsible for failing to prevent it.

Together, the above two rules create what some lawyers see as a catch-22 for plaintiff's lawyers. Either the danger is open and obvious, in which case the customer should have noticed, or the danger is not open and obvious, in which case the storeowner often cannot be expected to notice it and clean it up.

The wider effect of the law

One of the many reasons for allowing people to sue one another is the fact that lawsuits can lead people and businesses to be more careful than they might otherwise be.

So suppose the courts changed direction and decided a number of cases in which grocery stores were held liable for damages when customers slipped and fell on grapes. To avoid this cost, store owners might take added precautions, like rubber floor mats for the produce section and new workers to sweep the aisles.

Of course, safety measures cost money. An owner who still wants to make a profit may well raise the cost of merchandise. And that means the cost of that weekly grocery bill will climb higher.

All of the foregoing isn't necessarily a bad thing, so long as we believe that the extra cost that we pay at the check out is balanced by what we save from the decreased risk of slipping on grapes. The savings comes in the form of ankles not sprained, bones not broken and medical bills not incurred.

However, if we think the cost of rubber mats and extra personnel is greater than what can be saved in personal injuries, then we might want the court to insulate the grocery store from liability when a customer slips on fruit.

By choosing a legal rule that makes it difficult for injured customers to successfully sue businesses, the Michigan courts are in many ways saying that a decreased risk of injury is not worth the tradeoff in expensive new precautions.

That's good news for grocers, but Michigan shoppers ought be careful when they visit the grocery store. The courts will not be watching their steps for them.

Bill Rohn is a trial lawyer and partner in the law firm of Varnum LLP. He can be reached at werohn@varnumlaw.com.

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