No doubt the last thing on mail carrier Nancy Schafer's mind when she left her residence that morning and headed off to work, was winding up on an autopsy table at the Wayne County Medical Examiner's Office in Detroit.
Nonetheless, the mail carrier's fate was sealed as soon as she ascended the front porch of the Dundee residence where she was delivering the mail.
In a flash, the porch's concrete floor cracked, spilt and collapsed, plunging Ms. Schafer into the ancient root cellar below. Two 500 concrete slabs compressed her chest--causing death by suffocation.
Though a spokesman for the Postal Service called it a tragic, freak accident, we disagree. Rather, from the perspective of the personal injury lawyer, the fuse was clearly lit for all to see, and should have been observed by either the occupant, the residence owner or the landlord, as the case may be. As set forth below, however, in the courtroom, those warning signs may act as a double edged sword.
The accident raises several legal issues: Premises liability; injury victim status; negligence; damages, and; the right to sue the negligent person responsible for the accident.
While the Schafer family grieves, at this very moment, insurance defense lawyers are scrambling to torpedo or at least to minimize Nancy Schafer's wrongful death claim. And thanks to a Michigan Supreme Court viewed as 'accident victim unfriendly', the defense lawyers enter the field of battle well armed, in deed.
Ironically, the outcome of the Schafer family's all important negligence claim may well hinge on seemingly insignificant semantics.
Identifying the proper defendant can be a challenge in the typical defective premises case. Through a somewhat counter-intuitive court decision, the Michigan Supreme Court in Orel v Uni-Raw Sales, held that, generally, the key to responsibility in a defective premises case is possession and control. Accordingly, a claim against a mere, hands-off owner, will not stand up in court.
An exception to that rule is a landlord's statutory duty to maintain premises in reasonable repair and in accordance with Michigan health and safety laws, See: MCL 554.139(1)(a) and (b).
In the case of Swartz v Huffmaster Alarm Systems, the Michigan Court of Appeals confirmed that the building occupant's duty depends on the injured party's legal status. Broadly speaking, those categories include invitee, licensee or trespasser. It is the purpose of the visit that defines the injury victim's status.
Under former Michigan case law, if the purpose of the victim's presence on the premises was to benefit the premises occupant, the injury victim was deemed an invitee. Thus, the occupant would owe that visitor a heightened duty of care. Social visitors, on the other hand, were classified as licensees, and were covered by a lower level of care.
In the case of Stitt v Holland Abundant Life Fellowship, however, the Michigan Supreme Court deviated from the age-old general rule and held that invitee status depended on whether the premises were held open for a commercial purpose. Henceforth, the higher status would turn on whether the visit might confer a pecuniary gain on the premises occupant.
In contrast, a licensee is a person on the premises for a non-business purpose. Another element of licensee status is permissive presence, express or implied. Moreover, permission to enter may arise by acquiescence.
The duty owed to invitees includes: Maintenance of the premises in a reasonably safe condition; Warning invitees of known, latent dangers, and; Reasonable inspection of the premises to discover latent, dangerous building conditions.
The Michigan Supreme Court has held, however, that, even with respect to invitees, the possessor of the structure owes no duty to protect from patent defects. That is known as the Open and Obvious Doctrine. That said, once again, an exception to the open and obvious doctrine is landlord's statutory duty to maintain premises in a safe condition.
Another exception to the open and obvious doctrine vis á vis invitees is special circumstances. An example of special circumstances trumping the open and obvious doctrine would be a situation where the injury victim had no alternative but to traverse the patently dangerous defect.
Finally, the general rule is that the landowner owes no duty to a trespasser. Though the term "trespasser" holds negative connotations, in fact, a trespasser is nothing more than a person on the premises without any permission (non-applicable exceptions exist).
Reportedly, the porch which caused Ms. Schafer's death had patently visible cracking and other clearly visible evidence of possible weakening. Doubtless the insurance defense lawyers will latch on to those facts and argue that they amounted to patent defects with no special circumstances requiring Ms. Schafer to ascend the porch.
An experienced Southfield personal injury lawyer, however, is certain to argue that the ultimate danger was that the porch was perched over a 10 foot hole in the ground, with insufficient interior, underlying support. Hence, the exterior cracks around the porch were not indicative of the real danger.
We predict, therefore, that, even if the insurance defense lawyers succeed in categorizing the injury victim as a mere licensee, the corresponding downgraded standard of care will not win the day, and the Schafer family will obtain at least a measure of justice to compensate them for their loss.
Michigan Letter Carrier Dies After Porch Collapses, The Detroit Free Press, March 9, 2011