Michigan Open and Obvious Doctrine in Slip and Fall Cases

Key Numbers in Michigan Open and Obvious Law

What Changed in Michigan Open and Obvious Law?

For more than two decades, Michigan's open and obvious doctrine could end a slip and fall case at the duty stage. If a danger was considered obvious enough that a reasonable person should have noticed it, the property owner could argue that no duty existed to protect against it.

That changed on July 28, 2023. In Kandil-Elsayed v. F & E Oil, the Michigan Supreme Court overruled the earlier Lugo v. Ameritech framework and moved open and obvious conditions out of the duty analysis and into breach and comparative fault.

In practical terms, the fact that a hazard was visible can still matter, but it no longer automatically eliminates the property owner's duty. Instead, obviousness is considered when deciding whether the owner acted reasonably and how much fault should be assigned to each side.

What Open and Obvious Used to Mean in Michigan

Before Kandil-Elsayed, Michigan courts generally treated an obvious condition as a question of duty. If a reasonable person would have noticed the danger on casual inspection, the property owner often had no duty to protect or warn against it.

The Lugo Rule and Special Aspects

The controlling case was Lugo v. Ameritech Corp., decided by the Michigan Supreme Court in 2001. Under Lugo, a condition that was open and obvious generally did not create liability unless it had what courts called “special aspects.”

Those exceptions were narrow. They usually involved a danger that was effectively unavoidable or presented an unusually severe risk of harm.

This framework was especially important in Michigan cases involving snow and ice slip and falls and black ice accidents .

Why Cases Were Often Dismissed Before Trial

Because open and obvious was tied to duty, it could become a legal question for the judge rather than a factual question for a jury. Property owners frequently sought summary disposition by arguing that the condition was visible and therefore no duty existed.

Kandil-Elsayed changed that framework by moving the obviousness of the condition into the broader analysis of breach and comparative fault.

What the Michigan Supreme Court Decided in Kandil-Elsayed

Kandil-Elsayed involved two consolidated premises liability cases. In one, a woman slipped on snow and ice while walking from a gas pump toward the station. In the companion case, Pinsky v. Kroger Co. of Michigan, a shopper tripped over a cable near a checkout area.

In both cases, the property owners argued that the conditions were open and obvious and therefore no duty existed. The Michigan Supreme Court rejected that framework and overruled Lugo.

Where Open and Obvious Fits Now

The obviousness of a condition now goes primarily to whether the property owner breached the duty of reasonable care and whether the injured person shares responsibility for the fall.

That makes comparative negligence much more important. If an injured person could clearly see a hazard but proceeded anyway, that fact can still reduce the amount recovered even though it no longer automatically eliminates the property owner's duty.

What You Still Have to Prove in a Michigan Slip and Fall Case

Kandil-Elsayed changed the treatment of open and obvious conditions, but it did not eliminate the traditional elements of a premises liability case.

A plaintiff still generally must establish:

• Duty: the property owner owed a legal duty of reasonable care.
• Breach: the owner failed to act reasonably under the circumstances.
• Causation: that failure caused the fall and resulting injuries.
• Damages: the fall caused actual losses such as medical expenses, lost income, or pain and disability.

Another major issue is whether the property owner knew or should have known about the dangerous condition.

Actual and constructive notice can become central to the case. Actual notice means the owner knew about the danger. Constructive notice means the condition existed long enough that a reasonably careful property owner should have discovered it.

For a broader explanation of these issues, see our Michigan slip and fall liability and fault guide .

What If You Were Previously Told the Hazard Was Open and Obvious?

If your injury happened after Kandil-Elsayed, the current framework applies from the beginning of the case.

Michigan appellate courts have also applied Kandil-Elsayed to cases that were still pending on direct appeal when the decision was issued. That does not generally mean that cases finally closed years earlier can simply be reopened.

Whether an older claim can still be pursued depends on the procedural history and applicable deadlines.

Property Owner Notice Still Matters

The change in open and obvious law does not eliminate one of the most common disputes in slip and fall cases: whether the property owner knew or should have known about the dangerous condition.

Evidence of notice can include surveillance footage, inspection records, employee statements, maintenance logs, photographs, witness testimony, and evidence showing how long the condition existed.

A temporary spill that appeared moments before a fall presents a very different notice question from a broken stair, recurring leak, or dangerous condition that had existed for days.

Missing warnings can matter too. Our guide to slip and fall cases involving no warning signs explains how the absence of cones, signs, or barriers may affect the evidence.

An Obvious Hazard Can Still Hurt Your Claim

Kandil-Elsayed did not make every slip and fall case viable simply because open and obvious is no longer treated as an automatic duty bar.

The obviousness of the danger can still affect whether a property owner acted reasonably. It can also affect the injured person's share of comparative fault.

If a jury determines that an injured person was partly responsible, the recovery can be reduced by that percentage of fault. Michigan law also limits recovery of noneconomic damages when the injured person is found more than 50 percent at fault.

The practical result is that visibility still matters. It is simply analyzed as part of the broader fault determination rather than automatically ending the case at the duty stage.

What to Do After a Slip and Fall in Michigan

The condition that caused a fall can disappear quickly. Spills get cleaned, snow gets shoveled, warning signs appear, and surveillance footage may eventually be overwritten.

After a serious fall, consider taking these steps:

• Get appropriate medical treatment.
• Report the slip and fall to the property owner or manager.
• Photograph the condition and surrounding area.
• Photograph missing warning signs or barriers.
• Identify surveillance cameras.
• Get names and contact information for witnesses.
• Preserve the shoes and clothing you were wearing.
• Avoid giving a detailed recorded statement before understanding your rights.

In many Michigan premises liability cases, the general limitations period is three years, although shorter notice requirements can apply in some claims involving government property.

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