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No Dice: Casino Visitor Unable to Proceed with Trip and Fall Claim

Premises Liability / April 1, 2019

Zoma v MGM Grand Casino & Mich Democratic Party, unpublished opinion per curiam of the Court of Appeals, issued March 26, 2019 (Docket No. 341149), p 3, illustrates that a property owner or possessor’s “actual or constructive notice of the dangerous condition at issue” is a necessary element of a premises liability claim.

Zoma also underscores that where a theory of liability is based on a defendant’s “possession and control of the” premises, “rather than an affirmative negligent act by either defendant,” that claim sounds exclusively in premises liability. Id. at 3.

Zoma also illustrates the conundrum faced by trip and fall claimants: in order to avoid the open and obvious defense, they often describe the condition as hidden. (While not mentioned in the Court of Appeals’ opinion, Zoma argued that the electrical cord was camouflaged by a carpet pattern in a dimly lit room.) But if the condition is truly hidden, it is hard for a claimant to say that the defendant knew or should have known about it, as required to show notice.

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