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Michigan Supreme Court Overrules Application of Key Premises Liability Doctrine

August 4, 2023

Article courtesy Warner Norcross + Judd

On July 28, 2023, the Michigan Supreme Court issued an opinion overruling the widely adopted application of the open and obvious doctrine in cases involving premises liability claims. In Kandil-Elsayed v. F & E Oil, Inc and Pinski v. Kroger Co of Michigan, which you can access here, the Michigan Supreme Court overruled Lugo v. Ameritech Corp, 464 Mich 512 (2001), the leading case that applied the open and obvious doctrine to determine whether a property possessor owed a duty of care to an injured invitee. In overruling Lugo, the court clarified that the open and obvious nature of a condition on land is still relevant, but only in analyzing whether the landowner breached the duty owed to the plaintiff and comparative fault.

Before Lugo was overruled, courts applied the open and obvious doctrine to bar premises liability claims by invitees where the defendant land possessor could show that it was reasonable to expect that an average person with ordinary intelligence would have discovered the condition upon casual inspection. If the condition was open and obvious (think of a fairly generic pothole), then courts held that the land possessor had no duty to protect or warn the invitee of the condition unless the invitee could prove “special aspects” of the condition, such as when the condition was effectively unavoidable or presented a substantial risk of death or severe injury to the invitee. For over 20 years, property possessors who found themselves in the position of defending against these lawsuits widely relied on Lugo and its progeny’s application of the open and obvious doctrine to dismiss premises liability claims at the summary disposition stage.

However, in Kandil-Elsayed, the Michigan Supreme Court overruled the special aspects doctrine, holding that the land possessor is not relieved of the duty of reasonable care towards an invitee even if a condition is open and obvious. The open and obvious doctrine is to be analyzed as part of breach and comparative fault – which the court emphasized are questions of fact for the jury to decide. With the court’s clarification, the likelihood of getting a premises liability lawsuit dismissed at the summary disposition stage is now substantially lower than in years prior.

Here are three key takeaways from the Michigan Supreme Court’s opinion:

  1. Michigan will very likely see an influx of premises liability lawsuits as a result of the decision.
  2. These lawsuits are now less likely to get dismissed at the summary disposition stage and are more likely to go to trial.
  3. Without the court stating otherwise, its opinion will apply retroactively to all currently pending cases, even if the case is pending on appeal.

Premises owners and operators should take heed of this decision and redouble their efforts to maintain their premises for the safety of their invitees.

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