In recent years much of the focus of the insurance community has been on legislative and judicial changes on UM/UIM law. Several court decisions have caused both attorneys and claims professionals alike to revisit how the courts are viewing premises liability issues. Ohio, Kentucky, Indiana and Michigan continue to recognize the classical distinctions between invitees, licensees, and trespassers.

 

OHIO

  • Statute of limitations: 2 years.
  • Comparative fault: Modified system, a plaintiff may recover as long as they are no more than 50% at fault.
  • On fall claims, a plaintiff must establish the property owner had either actual or constructive knowledge of the condition which caused the fall.  Crane v. Lakewood Hospital (1995), 103 Ohio App.3d 129.  Combs v. First National Supermarkets, Inc.  (1995), 105 Ohio App.3d 27.  How much time is sufficient to create constructive notice is generally considered fact-specific and determined on a case by case basis.
  • A property owner has no duty to warn of or rectify a condition which is open and obvious.  The open and obvious defense is a complete bar to recovery and is not an element of comparative fault.  Armstrong v. Best Buy Stores, Inc., 99 Ohio St.3d 79, 2003-Ohio-2573.
A store has no obligation to remove natural accumulations of snow or ice from their property.  Brinkman v. Ross (1993), 68 Ohio St.3d 82.  A store is not liable for falls caused by water, snow, or slush tracked into the premises.  Paschal v. Rite Aid Pharmacy, Inc. (1985), 18 Ohio St.3d 203.

 

KENTUCKY

  • Statute of limitations: 1 year.
  • Comparative fault: Pure comparative, a plaintiff may recover even if they are more than 50% at fault.
  • Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431 (2003), radically changed the burden of proof in a slip-and-fall. Historically, it has always been plaintiff’s burden to prove defendant’s negligence as well as proximate cause.  Now in a slip-and-fall claim in Kentucky, there is a presumption the defendant was negligent. Instead of requiring plaintiff to prove negligence, there is now instead a burden on the defendant to prove it was not negligent.
  • Kentucky extended Lanier to trip-and-fall cases as well. Martin v. Mekanhart, 113 S.W.3d 95 (2003).  Hartley v. Educational Training Systems, Inc., 134 S.W.3d 612 (2004).
  • Kentucky still allows the open and obvious defense. As such, there is no duty to warn an invitee of open and obvious conditions. Reece v. Dixie Warehouse and Cartage Co., 188 S.W.3d 440 (Ky. App. 2006); (citing Shipp v. Johnson, 452 S.W.2d 828 (1969).
A store has no obligation to remove natural accumulations of snow or ice from their property.  Standard Oil Co. v. Manis, 433 S.W.2d 856 (1968).

 

INDIANA

  • Statute of limitations: 2 years.
  • Comparative fault: Modified system, a plaintiff may recover as long as they are no more than 50% at fault.
  • On slip and fall claims a plaintiff must prove both the presence of a foreign substance, and that the defendant unreasonably failed to discover and remedy the condition.  Barsz v. Max Schaperio, 600 N.E.2d 151 (Ind. Ct. App. 1992).
  • The open and obvious defense is available, but it is not a complete bar to recovery.  It is an element of comparative fault to be considered by a jury.  Smith v. Baxter, 796 N.E.2d 242 (2003).
A store has no obligation to remove natural accumulations of snow or ice from their property.  Denison Parking, Inc. v. Davis, 861 N.E.2d 1276 (Ind. Ct. App. 2007).

 

MICHIGAN

  • Statute of limitations: 3 years.
  • Comparative fault: Pure comparative, a plaintiff may recover even if they are more than 50% at fault.
  • On fall claims, a plaintiff must establish the property owner had either actual or constructive knowledge of the condition which caused the fall.  Serinto v. Borman Food Stores, 380 Mich. 637 (1968).
  • A property owner has no duty to warn of or rectify a condition which is open and obvious.  Riddle v. McLouth Steel Products, 440 Mich. 85 (1992). In Riddle, the Supreme Court held Michigan’s adoption of pure comparative fault did not eliminate the open and obvious defense.  The open and obvious defense can still serve as an absolute bar to liability in Michigan as it involves the determination of whether a duty of care is even owed to the plaintiff, as opposed to allocating fault.
The open and obvious defense has been extended to snowy and icy weather conditions. Kenny v Kaatz Funeral Home, 472 Mich. 929 (2005).  There is no duty to remove natural accumulations of snow or ice.