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.
Background
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.
Analysis
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.
Summary
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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.