Michigan Supreme Court Eliminates The Open and Obvious Doctrine

The Michigan Supreme Court has overturned the “open and obvious doctrine” on July 28, 2023.  This ruling is a huge shift in premises liability law and it will again allow individuals to file and actually win a premises liability or slip and case against property owners in the State of Michigan.  It is well known that the open and obvious doctrine prevented almost all lawsuits and gave huge benefits to landowners for more than 20 years.  As personal injury attorneys, it has been extremely frustrating seeing negligent property owners escape responsibility for their carelessness.

This decision will have an enormous impact on Michigan businesses, property owners, insurance companies, and individuals.  In this blog post, we will discuss exactly how the law has changes, what will happen to future premises liability cases, and the impacts to all parties involved.

Premises Liability Law in Michigan Past and Present

Premises liability cases are based on the legal principle that holds property owners or occupants responsible when someone is hurt on their property because of unsafe or dangerous conditions.  In the past, this open and obvious doctrine has severely limited anyone from holding the property owners or occupants responsible.

2001 Supreme Court Decision

This doctrine was put into place in 2001 based on the case of Lugo V. Ameritech Corp.  In this case, the Supreme Court ruled that if someone visits a property (not trespassing) and they face a condition is open and obvious, then the property owner does not owe this individual a duty of care.  Essentially this means that an individual can’t recover any compensation or damages for injuries sustained from the accident.  The exact language used was “[w]here the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, an invitor owes no duty to protect or warn the invitee unless he should anticipate the harm despite knowledge of it on behalf of the invitee”

So why did the Supreme Court make this ruling?  The reasoning behind the decision is that the dangerous or harmful condition was known and that the individual should have seen it and avoided the conditions entirely.  The court did allow what they called special aspects or exceptions but this only applied in a very small amount of cases.  The special aspects include if the condition was completely unavoidable and if the condition causes a severe degree of harm.  If the special aspects applies, the injured person could recover damages and if the special aspects don’t apply, the property owner essentially won based on the open and obvious defense.

During this 20+ year stretch of the open and obvious doctrine, Michigan courts did not consistently apply the law and also that the special-aspects test created a ton of confusion.  The issue was that it simply didn’t answer the important queston of whether the property owner satisfy their duty of care or did they breach their duty of care.

2023 Supreme Court Ruling

Owners of property have a duty not to harm individuals.  Have they violated this duty of care?

For the last 20 years, this open and obvious confusion has led to many individuals getting injured with no ability to collect damages and letting property owners skirt responsibility.  The Supreme Court has decdied to look at 2 separate cases in order to settle all the confusion this open and obvious doctrine has caused.  The 2 cases they looked at included:

Kandil-Elsayed v F & E Oil, Inc – (In Docket No. 162907, Ahlam Kandil-Elsayed filed a negligence action based on premises liability in the Wayne Circuit Court against F & E Oil, Inc., after she slipped and fell at a gas
station defendant operated. Plaintiff argued that the snow and ice on the premises constituted a dangerous condition. Defendant moved for summary disposition under MCR 2.116(C)(10), arguing that because the condition was open and obvious and had no special aspects, it did not owe plaintiff a duty of care. Plaintiff responded that defendant did owe her a duty of care because the condition, while open and obvious, was effectively unavoidable. The trial court, David J. Allen, J., granted defendant summary disposition, and plaintiff appealed. The Court of Appeals, LETICA, P.J., and C AVANAGH and FORT HOOD, JJ., affirmed in an unpublished per curiam opinion issued March 11, 2021 (Docket No. 350220). Plaintiff applied for leave to appeal in the Supreme Court, and the Court scheduled and heard oral argument on the application, directing plaintiff to brief whether Lugo v Ameritech Corp, Inc, 464 Mich 512 (2001), was consistent with Michigan’s comparative-negligence framework and, if not, what approach the Court should adopt for analyzing premises-liability cases under a comparative-negligence framework. 509 Mich 857 (2022))

Pinsky v Kroger Co of Mich – (In Docket No. 163430, Renee Pinsky and her husband, David Pinsky, brought a negligenceaction based on premises liability in the Washtenaw Circuit Court against Kroger Company of Michigan after Renee Pinsky tripped over a cable that had been strung from a checkout counter to a display basket. Defendant moved for summary disposition under MCR 2.116(C)(10), arguing that because the hazard was open and obvious and no special aspects were present, it owed no duty to plaintiff. The trial court, Timothy P. Connors, J., denied the motion for summary disposition, and defendant appealed. The Court of Appeals, C AMERON, P.J., and B ORRELLO and R EDFORD , JJ., reversed in an unpublished per curiam opinion issued May 27, 2021 (Docket No. 351025), and remanded for entry of an order granting defendant summary disposition, holding that the cable was open and obvious and not unreasonably dangerous as a matter of law. Plaintiffs applied for leave to appeal in the Supreme Court, and the Court scheduled and heard oral argument on the application, having specified that plaintiffs should brief the same issues as in Docket No. 162907 and that the cases would be argued at the same session. 509 Mich 954 (2022).)

So the Supreme looked at the above 2 cases and as a result decided to eradicate the open and obvious doctrine.  So effectively immediately, all premises liability claims will be evaluated based on fault and whether the owner of the property breached their duty of car to protect visitors from unreasonable harm.

Now, judges and juries will look to the following questions when deciding if the property owner was at fault :

Instead of just looking at whether nature of the condition was open and obvious, Michigan courts will have to analyze the claim in much more detail.  This deeper analysis can evaluate who is at fault and at what extent.

A Premises Liability (Slip and Fall) Example

In order to illustrate the changes of abolishing the open and obvious, let’s make an example scenario and see how the courts would decide in 2001-2022 vs how the courts would decide in 2023.

Scenario: It’s the middle of winter in Michigan.  A man parks at a convenience store and gets out of his car to go inside.  He slips and falls on ice and breaks his ankle.  He sues the convenience store.

2001 (With Open and Obvious Doctrine) – Ice is quite common during winter in Michigan and is considered open and obvious.  The court rules that the convenience store did not owe him a duty of care and he is unable to collect damages or medical expenses for his broken ankle.  His lawyer probably told him not to even file a lawsuit because the probability of overcoming the open and obvious doctrine was nearly impossible.  As personal injury attorneys, this is exactly the advice we gave because trying to win a slip and fall case was essentially pointless.

2023 (Without Open and Obvious Doctrine) – The court takes a deeper analysis into the convenience stores actions to plow its parking lot, salt its parking lot, and warn their customers of possible ice.  The ruling finds that both the property owner and the customer were partially at fault.  The man is able to collect economic damages to cover all the medical expenses related to the accident and for the time he was unable to work.

This premises liability example shows the massive shift in law going forward.  Unsafe or dangerous conditions are not limited to weather related conditions.  Some of the more common places for premises liability cases include:

What Impact(s) Will This Supreme Court Ruling Have?

Before this change on July 28th, 2023, the open and obvious doctrine killed just about all premises liability before they even started.  It was so difficult to bring this type of case, most attorneys stopped trying.  Now, these cases actually stand a chance in court.  Even if the individual is partially at fault, injured plaintiffs can collect based on Michigan’s comparative fault law.

The majority of lawsuits in Michigan as of right now are auto related.  In the future, premises liabilty cases will likely claim the 2nd spot which is currently debt collection cases.  Both property owners and insurance companies need to be prepared to defend this type of case and seek legal counsel in how to avoid a lawsuit.

Property Owners

The places that will be facing the most amount of litigation will be properties with high amounts of traffic including aparment buildings, business offices, grocery stores, and retail stores.  If you happen to own one of these properties, you will want to be proactive about creating the safest conditions possible.  You should also be aware that the work of contractors you hire is also your responsiblity.  You should review the contracts with individuals or businesses such as snow plowing, salting, maintenance, and scheduled inspections.

Property owners should review all of their contracts (present and future).  Adding in a contractual indemnification clause stating that they maintain a safe premises can help you limit your exposure to lawsuits.

Property owners should also talk their insurance companyu and make sure that you are covered against any prmises liablity claims.  The last thing you want to do is be blindsided by your insurance company and find out that you don’t have coverage and have to pay out these expenses out of your own pocket.  Unfortunately, this will probably increase your insurance rates over time.

Insurance Companies

Insurance companies should prepare for an increased amount of premises liability claims and higher monetary damages.  Now that these type of cases will fall under comparative negligence laws, even individuals partially at fault can collect economic damages.  If it’s found that the property owner is more than 51% at fault, they will also be entitled non-economic damages such as pain and suffering.

From 2001- July 2023, most premises liability cases were worth nothing at all.  Now, cases will likely include economic and non-economic damages.

Maintenance Providers

Property owners will most likely increase their budgets from property maintenance services in order to limit their exposure to injury claims.  This should provide more work for property maintence providers.  Just make sure that the contracts you sign protect you and your employees.

Injured Individuals or Plaintiffs

This is a very welcome ruling and change for plaintiffs.  Before this ruling they were facing an almost impossible uphill climb to recover damages for their injures.  Now they have a much better change of winning and collecting damages.

The elimination of the open and obvious ruling will have major impacts to Michigan’s legal, insurance, and business landscape.  If you have any questions about this ruling or how this amended premises liability will affect you, contact our dedicated slip and fall attorneys for a free consultation.  No fee unless you win!