On July 28, 2023, the Michigan Supreme Court, in the consolidated cases of Kandil-Elsayed v. F & E Oil Inc. and Pinsky v. Kroger Co. of Mich. , overturned three decades of premises liability jurisprudence by ruling, in a 5–2 decision that the open and obvious danger defense is no longer part of a traditional duty analysis. Instead, the Court shifted the principles of the open and obvious danger defense into the breach along with comparative fault analyses, which are typically questions for the jury to decide, because they reasoned such a framework was more consistent with the Restatement Second of Torts and Michigan’s statutory comparative fault system.
Prior to the July 28 decision, Lugo v. Ameritech Corp, Inc., 464 Mich 512 (2001) was the seminal case on Michigan premises liability law. Land possessors often used Lugo and the open and obvious doctrine adopted therein to obtain summary dismissal of premises liability claims involving common, every-day dangers such as snow and ice, pavement defects and visible foreign substances.
The defense strategy was straightforward: Show the trial judge that if an ordinary person would have seen the dangerous condition at issue upon casual inspection of the premises, the land possessor generally escaped liability (or leveraged the argument to negotiate reasonable settlements). It did not matter if the plaintiff personally saw the condition prior to the incident nor did it matter if the plaintiff understood the danger presented by the condition. Michigan courts viewed the “ordinary person” as an all-knowing individual with perfect clairvoyance. As with most legal theories, there was an exception to the open and obvious doctrine under the old law for “special aspects,” but that exception was ill-defined and inconsistently applied according to the Michigan Supreme Court, which is why it had to go as well.
Nuances under the New Framework
Under the “new” framework promulgated in Kandil-Elsayed and Pinsky, a Michigan premises liability claim begins with the premise that a landowner owes a duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition on the land. (Emphasis added.) While the open and obvious nature of a “dangerous condition” remains relevant, the land possessor must now argue to the fact-finder (i.e., the jury) that it did not breach its duty when it failed to remedy a dangerous condition on the premises because a reasonable invitee would see the dangerous condition and avoid it.
Even if the land possessor convinces the fact-finder on this front, it may still be liable if the fact-finder determines that the land possessor should have anticipated the harm to the invitee despite the open and obvious nature of the dangerous condition. Assuming the fact-finder finds breach, the analysis kicks to comparative fault where the fact-finder is to consider whether the plaintiff’s choice to confront the open and obvious condition was reasonable under the circumstances. The bottom line is that going forward the Michigan Supreme Court wants the jury to conduct a comparative analysis of each party’s fault in premises liability cases.
So, will a land possessor ever again win on a motion for summary dismissal under the new framework? Well, one area that will likely be fertile ground for dispositive motion practice is what constitutes an “unreasonable risk of harm,” and can a trial judge determine that issue as a matter of law on a dispositive motion? For example, if a plaintiff sustains an injury by simply missing a step while descending an ordinary staircase in adequate lighting conditions, does the land possessor really have to litigate that claim all the way to a jury trial or can the trial judge determine that the risk of harm presented by an ordinary staircase is part of everyday life and, therefore, not “unreasonable” as a matter of law? There is some pre-Lugo case law to support a trial judge making such a determination, but only time will tell if Michigan trial judges will actually enter such decisions in this brave new world.
Speaking of pre-Lugo cases, the Michigan Supreme Court specifically brought back the Quinlivan standard for snow/ice cases in its recent decision. Under Quinlivan, land possessors must take “reasonable measures within a reasonable time after an accumulation of ice and snow to diminish the hazard of injury to the invitee.” (Emphasis added.) The one saving grace under this standard seems to be that if it were undisputed that the incident occurred during an active weather event, the land possessor is not liable because its obligation to perform reasonable measures to diminish the hazard was not yet triggered. Otherwise, if the weather event ceased prior to the incident, the land possessors will have to engage in debates over what constitutes a “reasonable amount of time” after cessation of weather to take action and what constitutes “reasonable measures” taken to diminish the hazard. Can the trial judge decide these issues of reasonableness as a matter of law on dispositive motion? Well, that remains to be seen, but typically issues of reasonableness are for the jury to decide.
What is clear is that lack of notice of a dangerous condition, which is an issue a trial judge can determine on a dispositive motion, will likely become the land possessors’ strongest argument for summary dismissal, assuming the facts support the argument. In this regard, it is advisable that land possessors, particularly those who operate commercial businesses, conduct detailed inspections of their premises at reasonable intervals and properly document the results of those inspections and any ensuing repairs.
These inspection reports can take the form of a checklist and should include the name of the individual(s) who conducted the inspection and the precise date and time when the inspection occurred. Furthermore, since Michigan has such a long winter season, land possessors should keep snow logs that document the start and end times of weather events on their premises, the amount and type of accumulation, when the remediation work was performed and by whom, and what type of remediation work was performed. These records can be completed on a tablet device and maintained in the cloud at relatively minimal cost.
In this way, land possessors have a fighting chance of proving that they had a reasonable inspection system in place, they did not have actual or constructive notice of an allegedly dangerous condition and when they did have notice, they took appropriate, reasonable measures to mitigate the danger.