On July 28, 2023, the Michigan Supreme Court overturned two decades of legal precedent to eliminate the “open and obvious” doctrine as a factor for consideration in premises liability cases, effectively removing one of the primary defenses for landowners against claims for injury in slip and fall cases.

For the past 22 years, the law in Michigan has protected landowners from claims for injuries caused by a hazardous condition on the land that was “open and obvious.” In other word, a landowner was not liable for injuries caused by a dangerous condition where an average person with ordinary intelligence acting under the same conditions would have been able to discover the danger and the risk presented by the condition upon “casual inspection.” The lone exception to this doctrine was if some “special aspect” of the condition made the risk of harm unreasonable or effectively unavoidable to a visitor. First used by the Michigan Supreme Court in Lugo v. Ameritech Corp, Inc., 464 Mich 512 (2001), this standard has been applied in dozens of subsequent decisions by the Michigan Court of Appeals to set forth the types of conditions that would be considered open and obvious. The basic tenet of the doctrine was that landowners did not owe a duty to a visitor to protect that visitor from a potentially hazardous condition when that condition should be readily apparent to the visitor, and that visitor was in the best position to protect himself/herself by avoiding a potential hazard that was open and obvious.

As applied, the question of whether a hazardous condition was open and obvious generally was a matter of law and should be left to a judge to decide. If the judge held that a condition was not open and obvious, thereby determining the defendant landowner owed a duty to the plaintiff, the question of whether or not the landowner breached that duty was a matter of fact for a jury.

On Friday, the Michigan Supreme Court held that the open and obvious doctrine no longer should be used by the court in determining whether a landowner owed a duty to protect a business invitees from an unreasonable risk of harm caused by a dangerous condition of the land. Considering two different cases on appeal, Kandil-Elsayed v. F & E Oil, Inc. and Pinsky v. Kroger Co. of Michigan, the Supreme Court overturned its prior decision in Lugo, holding that whether a dangerous condition was open and obvious was not a question of duty but rather one of breach. Therefore, it should be left to the jury to decide.

The effect of this decision is that defendant landowners no longer will be able to file a motion for summary disposition on the basis that they did not owe a duty to the plaintiff as a matter of law because the hazardous condition that cause the plaintiff’s injury was open and obvious. This removes a significant arrow from the quiver of defendant landowners who previously were able to get most slip and fall cases dismissed with minimal discovery. This decision will create added expenses in defending cases and means that more cases end up going to trial.

Should you have any questions regarding changes to the premises liability law in Michigan based on this decision, please do not hesitate to contact a member of our Senior Living Practice Group.

Authored by Michael Kern

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Supreme Court Eliminates ‘Open and Obvious’ Doctrine, Exposing Business Owners To Increased Litigation In Premises Liability Cases

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