Open and Obvious – Michigan Supreme Court Ruling Overturned

On July 28th, 2023, the open and obvious doctrine was officially overruled by the Michigan Supreme Court. The doctrine is a type of premises liability law that came about after a Supreme Court ruling in 2001. The ruling will cause drastic change to premises liability law. The doctrine that typically favored property and business owners will now prioritize visitors. As a Michigan resident, it is important to understand what the law means and how it may affect you. As a property or business owner, it is also important to make sure you are properly insured in the event of a lawsuit.

Court hammer representing that the open and obvious doctrine was overturned.
Gavel, court hammer. Free public domain CC0 photo. More: View public domain image source here

What is the Open and Obvious Doctrine?

The open and obvious doctrine is a type of liability law that the Supreme Court put into place in 2001 after hearing the Lugo v. Ameritech Corp case. Premises liability law states that a landowner has a duty to protect its invitees from an unreasonable risk of harm. The open and obvious doctrine amended premises liability law with the intention of relieving property owners from some of this responsibility.

In summary, open and obvious law states that property and business owners are not required to protect or warn you of dangers that are considered “open and obvious”. Property owners do not owe visitors a duty of care if the visitor could have easily avoided injury. The injured party will not be assisted with any costs they incur due to injury. But there are rare, special circumstances in which the property owner is still liable. They call exceptions special aspects. For example, if the danger causes severe damage/injury, or the danger was unavoidable it will be considered a special aspect.

Why was the Doctrine Overturned?

A major problem with the open and obvious doctrine was special aspects. Special aspects were confusing and difficult to apply to the law, making use inconsistent. Additionally, the doctrine contradicts the purpose of premises liability law. Premises liability law states that property owners have a duty of care. Their duty is to ensure that guests are not harmed. Furthermore, the open and obvious doctrine often overlooked other aspects of determining who was at fault. It decides whether the plaintiff could have avoided injury more so than if the defendant could have prevented the injury. All of these reasons combined makes the question of whether the property owner satisfied or breached their duty of care nearly impossible to answer.

How did the Supreme Court Decide?

Two cases made their way to the Michigan Supreme Court involving the open and obvious doctrine. By analyzing these two negligence cases, they wished to clear up the confusion about the doctrine. Have property owners breached their duty of care? The Supreme Court hopes to find a better solution to this question.

Kandil-Elsayed v F & E Oil, Inc:

Plaintiff, Kandil-Elsayed slipped and fell on ice at a gas station and filed a negligence case against defendant, F & E Oil, Inc. The plaintiff argued that snow and ice created a dangerous condition. The defendant argued that they did not owe the plaintiff a duty of care because of the open and obvious doctrine. They moved for summary judgement stating the condition was open and obvious, and that there were no special aspects. The plaintiff counterargued that there was a special aspect since the condition was unavoidable. The trial court sided with the defendant, granting summary judgement. Subsequently, the plaintiff sent the case to the Supreme Court. It was left up to the Supreme Court to decide if that decision was consistent with Michigan’s comparative-negligence framework. If it is not, the court must decide what precedent to set for examining premises liability cases under a comparative-negligence structure.

Pinsky v Kroger Co of Mich:

Plaintiff, Renee Pinsky, filed a negligence case against defendant, Kroger Company of Michigan, after tripping over a cable hung between a display case and a checkout counter. Plaintiff argued the cable resulted in a dangerous condition. On the other hand, the defendant argued that they did not owe them a duty of care, since the condition was open and obvious with no special aspects. This time, the trial court sided with the plaintiff, and did not grant the defendant summary judgement. But the defendant took the case to the Court of Appeals, who decided the cable was not a special aspect because it did not cause unreasonable danger. The plaintiff then took the case to the Supreme Court to decide if the decision is consistent with Michigan’s comparative-negligence framework.

Final Supreme Court Decision

The Michigan Supreme Court finally decided that decisions made under the open and obvious doctrine were not consistent under the comparative-negligence framework. This justified the elimination of the open and obvious doctrine under Michigan law. Finally, on July 28th, 2023, the open and obvious doctrine was officially overruled by the Michigan Supreme Court.

Premises Liability Without the Open and Obvious Doctrine

Now that the open and obvious doctrine has been removed from Michigan law, premises liability cases will be examined based on fault. Property owners have a duty of care to protect all visitors from unreasonable harm. Therefore, judges will decide if property owners breached their duty of care. Judges will do so in greater detail than before to decide how much each party is at fault.

According to the Clark Law Office, this set of questions will be used to decide is property owners failed to prevent unreasonable harm:

  • Did the property owner owe a duty to this person? What was the status of the individual: licensee, invitee, or trespasser?
  • Did the property owner breach their duty?
  • What was the condition that caused harm? Was it open and obvious? Could the individual have avoided it?
  • Did the owner take the necessary or reasonable steps to address the condition?
  • How much is each party at fault?

Case Rulings Without Open and Obvious Doctrine

Kandil-Elsayed v F & E Oil, Inc:

With the new set of questions put in place, judges would examine this case from many more angles. Knowing that business owners must protect customers from harm, could the company have prevented this harm? Before deciding if the company is at fault, they may investigate whether they plowed or salted their parking lot.

Pinsky v Kroger Co of Mich:

Similarly, judges would ask more questions about how both parties could have prevented harm. They may ask, how did the cable get there in the first place? Or how long has it been without an employee removing the tripping hazard? Questions like these are essential to determine who is at fault.

How Can I Stay Protected as a Business Owner?

Property owners are now at greater risk of being sued for negligence. But business owners are at greater risk than other property owners because of the plethora of people coming in and out. Therefore, as a business owner it is essential to make sure that you have the proper premises liability coverage through your insurance. To prevent making an insurance claim, it is crucial to ensure you are taking all precariousness to keep your customers safe.

Tips to make sure your property is safe:

  • Regularly check for tripping or slipping hazards across your entire property (don’t forget about parking lots and walkways!)
  • Use warning signs: Not warning people of potential dangers can make you negligent of the accident. For example, not using a wet floor sign or a sign warning of a broken staircase. Warning signs do not necessarily mean you are not liable, but they could help you in a negligence case.
  • Properly train your employees: Make sure employees are consistently putting up wet floor signs, removing tripping hazards, etc.
  • Protect your employees from injury: You are also liable for your employee’s safety and wellbeing. Hence, you should have supervisors to ensure work conditions are safe. Also, provide proper training to employees specific for their line of work.
  • Fire hazards: Make sure your fire detectors are working properly, and that there are no fire hazards on your property. Store flammable materials properly.
  • Electric hazards: Ensure there are no faulty sockets or faulty electric equipment
  • Proper ventilation: Ensure your business is properly ventilated. If not, it can cause air quality and breathing issues for your employees and customers.
  • Get regular inspections: Getting regular inspections is one of the best things you can do to make sure your business is safe. They can inspect things that may be hard to detect. For example, they can look for electric hazards or at the state of your air quality.

Premises Liability Insurance

If you end up getting sued for negligence under premises liability, and found guilty, having insurance could save your business. The insurance company will be responsible for paying damages to the plaintiff.

Even if you already have a business or property insurance plan, it may not include premises liability. To make sure you’re covered, call your insurance agent. A good independent insurance agent will be knowledgeable of the new law and will know what to suggest for your specific business and situation. They also will be honest with you about how much coverage will be beneficial to you. Make sure you are speaking with a good agent to get the right amount of coverage at the best possible price.

TDA Insurance & Financial Agency

TDA Insurance & Financial is an independent insurance agency located in the heart of Walled Lake, Michigan. As a family-owned business, our motto is to treat our employees like family, so they will treat our clients like family. We take pride in having a hardworking and knowledgeable team who goes above and beyond for our clients.

As a local agency, we are well aware of the new law surrounding the elimination of the open and obvious doctrine. One of our agents will be happy to make sure you have proper coverage. In addition, as an independent insurance agency, we carry multiple insurance companies and compare them all to make sure you get the best policy at the best price.

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