The ice is especially dangerous this month

By: Lon Nordeen, MLSA Secretary & Mark Teicher, MLSA Vice President

With the coming of spring in a few weeks, there is still a deep layer of ice on many Michigan lakes, ponds, rivers, and wetlands. Please be very careful out there when you are working, fishing, play and walking your dog on the retreating ice!

MDNR – Ice Safety Tips

• Your safety is your responsibility! There is not a reliable “inch-thickness” to determine if ice is safe.
• You can test ice thickness and quality using a spud, needle bar, or auger.
• Strongest ice: clear with a bluish tint.
• Weak ice: ice formed by melted and refrozen snow. Appears milky.
• Stay off ice with slush on top. Slush ice is only half as strong as clear ice and indicates the ice is not freezing from the bottom.
• A sudden cold front with low temperatures can create cracks within a half-day.
• A warm spell may take several days to weaken ice, and cause the ice to thaw during the day and refreeze at night.
• Ice weakens with age.
• If there’s ice on the lake but water around the shoreline, be extra cautious.
• Stronger the current on the lake, the more likely the ice will give to open water.
• Avoid areas of ice with protruding debris like logs or brush.
• Keep an eye out for dock bubblers or deicers as the ice near these mechanisms will be unsafe.
• Always check the ice and be aware of your surroundings

Potential for liability

A lakefront home owner, or simply a possessor, such as a renter or person staying for free, can be liable under Michigan law for injuries or death as a result of using a bubbler. To be held responsible and liable by an injured person, or the parent of a drowned child (anyone under 18 years old), under simple Michigan negligence law, there must only be a showing of a duty (such as to keep the premises safe), a breach of duty (the ice, or lack thereof, was not safe, and a resulting injury or drowning.

One can also be liable for such injuries or death based on Michigan premises liability law. Here a lakefront home owner or the possessor of the land who uses a bubbler may be held responsible to any social guest (your friends and relatives) by a showing that the land owner or possessor knew or should have known of the condition caused by the bubbler and should have realized that it involved an unreasonable risk of harm, that the guest would not discover or realized the danger until it was too late and that the guest should have been warned. There is a special rule imposing a higher degree of care when any of the social guests are children.

Under Michigan law a trespasser may even hold a lakefront homeowner or possessor liable for a bubbler. To impose liability here for injuries or death of a trespasser, the trespasser or the surviving family must prove that the riparian or possessor knew or should have known that trespassers constantly intruded in the area of the dangerous condition and that the riparian owner or possessor was actively negligent or created the dangerous condition caused by the use of the bubbler.

Additional theories of liability under Michigan law where a riparian homeowner or possessor may be held liable for injuries or death arising out of the use of a bubbler include a public nuisance, a nuisance per se, a nuisance in fact and a negligent nuisance. A public nuisance is an unreasonable interference with a right common to the general public. Unreasonable interference includes significant interference with public health, safety, peace, comfort or convenience, prescribed by law and of a continuing nature that produces a permanent or long-lasting effect. A nuisance per se is an act, occupation or structure that is a nuisance at all times and under any circumstances. A nuisance in fact is a nuisance by reason of circumstances and surroundings. An act may be found to be a nuisance in fact when its natural tendency is to create danger and inflict injury on person and property. A negligent nuisance in fact is one that is created by the possessor’s negligent acts, that is, a violation of some duty owed to the plaintiff that results in a nuisance. A nuisance in fact is intentional if the creator intends to bring about the conditions that are in fact found to be a nuisance.

Lastly, Michigan law allows for liability of a bubbler under attractive nuisance law. To sustain an attractive nuisance case the injured person or family of the deceased must show that the riparian or possessor knew or had reason to know that children were likely to trespass; that the children (being minors) did not realize the risk involved; that the bubbler’s utility to the riparian and the burden of eliminating the condition were slight compared with the risk to children; and, that the riparian failed to exercise reasonable care to eliminate the danger caused by a bubbler.

Information about fatalities due to ice incidents from 2017, this was previously shared by MLSA in a newsletter from that season