Absent special circumstances, Michigan courts have generally held that the hazards presented by snow, snow-covered ice and observable ice are open and obvious and do not impose a duty on the premises possessor to warn of or remove the hazard. Slaughter v Blarney Castle Oil, 281 Mich 474 (2008).
However standard definitions of black ice, i.e.,ice “that is either invisible or nearly invisible, transparent, or nearly transparent[,]” are “inherently inconsistent with the open and obvious danger doctrine.” Id. at 483.
In order for the open and obvious doctrine to apply to black ice, the ice has to be visible upon casual inspection or there must be indicia of a potentially hazardous condition. Id. The disputed question in black ice situations is whether there were indicia of a potentially hazardous condition that would
render the black ice upon which plaintiff fell open and obvious as a matter of law.
The existence of indicia of potentially hazardous conditions is a fact-intensive inquiry. Michigan courts have generally found some combination of the following conditions sufficient to render black ice an open and obvious danger: temperatures consistently at or below freezing, recent thaws with a return to freezing temperatures, snow or ice observable in the area of the fall, recent freezing rain or falling snow, and areas that appear wet. See e.g., Cole v Henry Ford Health Sys (Mem), 497 Mich 881 (2014); Janson v Sajewski Funeral Home, Inc, 486 Mich 934 (2010).
Moreover, analyses give weight to inferences from weather conditions a day or two prior to an incident, even if the particular conditions had ceased at the time of the incident. Cole, supra (considering precipitation the day prior to the plaintiff’s fall as among the indicia of potentially hazardous conditions).
Absent some combination of these or similar wintry conditions, Courts have declined to find black ice to be an open and obvious danger. Slaughter, at 483 (concluding that black ice was not open and obvious because it was not visible to casual inspection prior to the plaintiff’s fall, and there was no snow on the ground, it had not snowed for a week, and plaintiff had not seen anyone else slip or hold onto an object to maintain balance).