Michigan Overturns Open & Obvious Laws:
Everything Property Owners Need to Know
Author: Attorney Chad Antuma
March 19, 2024
Highlights:
- New comparative fault doctrine will compare the fault of the property owner and the individual
- No longer will an ‘open and obvious’ danger be enough to disregard a liability case
- Premise liability lawsuits are more likely to occur along with higher settlements
- Protect your business by regularly clearing ice and snow and fixing other dangerous property conditions
Open & Obvious Overturned
In July 2023, the Michigan Supreme Court overturned the “Open and Obvious” doctrine, which has provided liability protection for property owners. The new decision allows more opportunities for individuals to file and win liability cases. The shift will likely lead to more lawsuits and insurance claims, with the courts comparing the faults of both parties: the individual and the business. Learn about the new ruling on the open and obvious law and how to protect your customers and business.
The Open and Obvious Doctrine (2001-2023)
The Michigan Supreme Court shaped the Open and Obvious Doctrine in the case of Lugo V. Ameritech Corp. 464 Mich. 512 in 2001. It protected property owners by establishing that if a condition was “open and obvious,” the owner could not be sued because they did not owe a duty to the plaintiff.
Essentially, the law stated that a customer should have been more careful if they knew or should have known of a dangerous condition. The law limited situations where property owners could be held liable. It provided a strong affirmative defense for property owners and insurance carriers. Lawyers could dismiss liability lawsuits in the early stages without spending resources on trials. In general, plaintiffs could usually only sue for “hidden dangers.”
New Michigan Supreme Court Ruling on Premise Liability Comparative Fault (2023-Present)
The Michigan Supreme Court decided that open and obvious dangers are no longer a complete defense and that whoever is more at fault should bear the responsibility for the injury. Effective July 2023, premises liability claims are evaluated by comparing the fault of the property owner and the individual. The new law considers many factors to determine who is more at fault. Almost all cases will be triable because a jury must decide who is more at fault.
The two cases that decided this: Kandil-Elsayed v F & E Oil, Inc. and Pinsky v Kroger Co of Mich.
The issues appealed in these cases asked the Court to enforce certain exceptions to the “open and obvious” doctrine, e.g., unavoidably and unreasonably dangerous conditions. Instead, the Court reasoned and decided that Michigan Law requires that a court compare the parties’ faults in relation to the danger.
Lugo V. Ameritech Corp. 464 Mich. 512
A plaintiff was injured due to tripping over a common pothole in a parking lot owned by Ameritech Corporation.
Kandil-Elsayed v F & E Oil, Inc
A traditional Michigan slip and fall case in an icy parking lot
Pinsky v Kroger Co of Mich.
A slip and fall case that precipitated from tripping over a cable near a checkout counter in a grocery store.
Slip and Fall Example: The Comparative Fault Doctrine
Let’s look at an example of what might happen under the new comparative fault doctrine.
A Plaintiff falls in a convenience store parking lot covered in ice.
Identifying factors applicable in determining who is at fault.
If a lawsuit is filed, the jury will look at the following types of factors:
- Was the lot plowed or salted?
- What time of day did the incident occur? Was the business open?
- Was the owner aware of the danger?
- Was the plaintiff aware of the danger?
- Have there been previous complaints about the issue?
- Was there artificial ice build-up?
- Was the plaintiff distracted?
- Was the danger open and obvious?
6 main takeaways regarding the new law:
Here are the main takeaways regarding the changes to the Open & Obvious doctrine:
- Property owners now have a duty to clearly warn customers of dangerous conditions even if the danger is “open and obvious.”
- Liability cases will be more frequent and more costly.
- Insurance premiums could rise due to more frequent and higher settlements.
- Courts and juries will now compare who is more at fault.
- Documenting the diligence owners take, and the missteps that plaintiffs engage in will be instrumental in defending a slip-and-fall case.
- The Michigan Supreme Court appears to be trending to broaden liability for businesses and reduce hurdles for plaintiffs.
What Business and Property Owners Should Do
As a Michigan property owner, you should take affirmative steps to prevent people from getting injured on your property. Because businesses and property owners are now more open to liability lawsuits, property owners should take precautions, including:
- Make it a pattern and practice to clear your property of ice and snow before the business day begins. Shovel the area and throw down salt.
- Regularly take care of property issues such as unlevel sidewalks and missing railings.
- Post signage for possible slippery areas or dangerous locations.
- Guide customers toward safer paths, such as avoiding slippery steps.
By implementing solid safety practices, you will have evidence should a liability trial occur. If cameras or employees can testify that you regularly clear the snow and throw down salt, that can serve as evidence in a liability case.
Specific Guidance for Your Property and Business
The conditions of your unique property can lead to risks of personal injury for your customers and the public. If you want guidance on how to protect your business against premise liability issues, reach out to me, Chad Antuma, or another Hilger Hammond attorney. We’re happy to provide advice specific to your business.
