“Open and Obvious” Best Friend of the Chamber of Commerce

As a 45 year practitioner of the law, as an occasional teacher of the Law (Catholic Central High school and U.D.M. Law school), as a writer who has written numerous published articles on the law and two published books dealing with many legal topics (Children of The Greatest Generation, 2012 and Wealth Power Politics Jesus, 2013) and as a 2012 State Bar of Michigan “Champion of Justice”, I respectfully give you my straight forward view of what’s wrong with the entire body of law surrounding “open and obvious’’… that body of law that denies the rights of Michigan citizens to recover for injury, disability or death when they are injured, disabled or killed by a dangerous condition on a business owner’s property:

1. DENIES TRIAL BY JURY…

“Open and obvious’’ is a flat out denial of trial by Jury, as Judges dismiss case after case again premises’ (business shop) owners…, taking cases from the Jury and illegally assuming the role of juror to decide the “fact” of whether a Plaintiff could have or should have avoided a known (“open and obvious’’) danger. That issue of what a Plaintiff should have known, should have seen and should have done is historically a fact issue that juries decide… not Judges who think they know more than juries. Why the grave mistrust of Trial by Jury in Michigan, some 800 years after the signing of the Magna Carta? Taking on the mantle of “conservatism” from my conservative Republican antagonists, I say: “At a minimum, let’s conserve the constitutional right to trial by Jury by taking away ‘fact’ issues from Judges … so those fact issues can be decided by a Jury.”

2. PROMOTES RISK OF INJURY, DISABILITY, DEATH AND LOSS OF PRODUCTIVITY…

The “POLICY’’ of the law has always been to “DETER” individuals from engaging in behavior that presents a risk of injury, disability or death to others. Yet, rather than deter, the “open and obvious’’ doctrine “promotes’’ the risk of injury, disability and death for our citizens by telling business shop owners (and other premises owners) that, if you have a known (“open and obvious’’), dangerous condition on your premises, “don’t worry about it’’ because Michigan law will never hold you business shop owners accountable. Just go ahead and play “Russian Roulette’’ with the health, welfare, life, quality of life, productivity, suffering and disability of Michigan citizens (including our senior citizens) because the Chamber-of- Commerce mentality of the Michigan Courts will not hold you accountable.

Business shop owners (and other Premises’ owners) get a free pass from the Michigan Courts, as the Michigan Courts invite business shop owners to just roll the dice on the health and welfare of Michigan citizens… so no need to extend a little care and remedy a dangerous condition even if it is easy to do so. How does that “free pass” policy encourage business shop owners to eliminate risks of injury, disability or death to their customers? Answer—it doesn’t.

3. PROMOTES SOCIALISM…

No doubt the judges who wholeheartedly support taking premises’ liability cases from the Jury on the grounds of “open and obvious’’ are judges who feel quite strongly about the American frontier concept of “self reliance’’ and about the economic theory of “laissez-faire’’ capitalism. But, those very same judges shortsightedly fail to recognize that their wholesale dismissal of Plaintiffs’ cases under the “open and obvious’’ doctrine shifts the financial burden that accompanies injury, disability or death (monetary damages) from the business shop owners who could have easily remedied the dangerous “open and obvious’’ condition that injured or killed the Plaintiff (and from the business shop owners Insurance Carriers)… to the rest of us taxpaying citizens of America.

The “open and obvious” doctrine requires that the payment for the financial burden that accompanies injury, disability or death be absorbed by we the taxpayers through our social programs of Medicare, Medicaid, Obama Care, unemployment benefits, Social Security Disability or through citizens’ private health and disability insurers who have no choice but to raise premiums to offset the non-payment by business shop owners (and their own Insurance Carriers)… business shop owners who pay nothing for the injuries, disabilities and deaths that they could have prevented.

In short, business shop owners (and other premises’ owners and their Insurance Carriers) all get a “free pass’’ from accountability under the judicially declared “open and obvious’’ doctrine. That “free pass’’ (“sleight of hand’’) shift of the financial burden of injury, disability or death away from the business shop owners (who could have taken remedial steps to prevent injury, disability or death)… to we the American taxpayers is nothing less than “socialism’’ for business shop owners and their Insurance Carriers. In the last analysis, we the American taxpayer “socialize’’ the financial burden of the business shop owners for the avoidable injury, disability or death they could have prevented, while, on the other hand, those business shop owners fully “capitalize’’ their own profits while sharing none of those profits with us American taxpayers, and probably sharing very little of their profits in taxes paid to the IRS.

4. PROMOTES A REPUBLICAN POLITICAL AGENDA…

The “open and obvious’’ doctrine embraces a Republican agenda of the Michigan Courts and Legislature… an agenda to provide their Chamber of Commerce business constituents (as well as the government and the Insurance Industry) with a very favorable and unjust playing field by eliminating Tort liability wherever possible—with a very agenda-driven Court supporting its judicial opinions with the same convoluted logic, sophistry and non-sequitor nonsense as the dialogue in Alice in Wonderland. And, for those who would challenge that statement, please read Sidorowicz v Chicken Shack, 469 MICH 912 (2003) where the Michigan Supreme Court upheld the “open and obvious’’ doctrine in dismissing a “blind’’ Plaintiff ’s case

because the blind Plaintiff should have seen (that’s right, the blind Plaintiff should have seen) the “open and obvious’’ condition that seriously injured him. For more Alice in Wonderland logic, take a look at the Michigan Supreme Court’s recent dismissal in the drowning death of a learning disabled teenager where the Supreme Court ruled that the most immediate “cause’’ of death was the dead kid’s position under the water, or, as the Supreme Court said, “remaining submerged in the deep end of the pool” (translated … the most immediate cause of the kid’s drowning was that he drowned)—rather than the lifeguard’s abandoning his post to flirt with the girls and throw a football around. See Beals v Michigan (Supreme Court Docket #149901—reported in Lawyers Weekly 6/29/2015).

There are numerous other cases which show the same convoluted logic in Court opinions… a convoluted logic that is totally oblivious to the real world and the experience of mankind. Everyday, day after day, the Michigan Courts dismiss legitimate, jury worthy claims of the injured, disabled or dead Plaintiffs by spinning convoluted logic round and round in an Alice and Wonderland, subjective legalese that says at its basic common denominator: “Let’s play ‘Russian Roulette’ with the lives of our children, senior citizens, disabled citizens and all others.’’

IN THE EYE OF THE [SHORT SIGHTED] BEHOLDER…

I am not necessarily challenging the integrity of Judges, but I am sure challenging their political affiliation, their agenda-driven judicial philosophy and their short sighted inability to see what the “open and obvious’’ doctrine is all about in both life and in logic. The great German philosopher and writer, Goethe, described it best when he said: “they” [in this instance Republican Judges] “tend to find what they are looking for.’’

RED QUEEN JUSTICE…

‘‘WHO ARE YOU’’??? said the Red Queen. “I am an injured Plaintiff, Your Honor.’’ “Off with his head’’ said the Red Queen. “AND, WHO ARE YOU’’??? said the Red Queen. “I am a dead Plaintiff, your honor.’’ “Let me get back to you’’ said the Red Queen: “I need to figure out

how to punish a Plaintiff whose head I already cut off.’’ “Sanctions, Red Queen…sanctions,” whispered the Defense Attorney. “Cut off the dead Plaintiff ’s head financially, Red Queen, and punish the dead Plaintiff’s surviving family for having the audacity to bring a lawsuit in a State that prefers decisions by Judges rather than “due process” and a trial by a jury of ‘We the People’.”