Introduction

On July 28, 2023, the Michigan Supreme Court released its long-anticipated opinion in Kandil-Elsayed v F&E Oil, Inc., which addresses the open-and-obvious doctrine in premises-liability cases. For over 20 years, property owners in Michigan did not have a duty to protect against open and obvious dangers. Kandil-Elsayed overrules decades of precedent, removing the open-and-obvious doctrine from the analysis of whether the property owner owes a duty, and making it relevant only to whether the premises owner breached their duty of care to the plaintiff and the plaintiff’s comparative fault.

The Facts

The Court’s opinion encompassed two premises-liability matters that were consolidated, Kandil-Elsayed and Pinsky v Kroger.

In the Kandil-Elsayed case, the plaintiff slipped and fell on snow and ice at a gas station while walking from a gas pump to the store to pay for her gas. The path to the store was covered in snow and did not appear to have been plowed or salted. The defendants moved for summary disposition in the trial court, arguing that the condition was open and obvious and had no special aspects, and therefore, they did not owe the plaintiff a duty of care. The trial court agreed and granted the motion. The Court of Appeals affirmed the ruling.

In Pinsky, the plaintiff tripped and fell at a grocery store. While at the checkout counter, the plaintiff realized that she had a bag of flour that was open and wanted to get a new one. The plaintiff went down another checkout lane that had a cable strung from the side of the checkout counter to a display basket, indicating that the lane was closed. The plaintiff tripped over the cable. The defendant moved for summary disposition in the trial court, arguing that the condition was open and obvious and had no special aspects. However, the trial judge denied the motion, finding a question of fact on the issue. The Court of Appeals reversed the ruling, finding that the motion should have been granted.

The Michigan Supreme Court’s ruling

For the last 20-plus years in Michigan, premises-liability cases have operated within the framework established in Lugo v Ameritech Corp, Inc, 464 Mich 512 (2001). The common-law elements of a tort claim are (1) a duty, (2) breach of that duty, (3) causation of the injury, and (4) damages. In Lugo, the Michigan Supreme Court held that the open-and-obvious-danger doctrine and its exceptions are addressed under the “duty” element of a premises-liability case. Lugo also held that if a danger is open and obvious, a premises owner only has a duty of care to an invitee if that danger has special aspects, i.e., it’s unreasonably dangerous or effectively unavoidable. Id. at 514.

Long ago, Michigan applied contributory negligence to tort cases (i.e., if the plaintiff shared any fault in causing the injury, the plaintiff was completely barred from recovery). During the period that contributory negligence applied, the open-and-obvious doctrine developed in premises-liability matters. In 1979, Michigan adopted comparative fault (i.e., if the plaintiff shared fault for the incident, the plaintiff’s damages would be reduced by the percentage of fault, but not completely barred). However, despite this transition to comparative negligence, the -open-and-obvious doctrine remained despite its origin in contributory negligence. Considerable disagreement followed over the course of the following years regarding whether or not the open and obvious nature of a danger was properly considered as part of the duty element (acting as a complete defense to liability) or under the breach element (allowing for a comparative fault analysis). In 2001, this dispute was resolved in Lugo, when the Court held that the open-and-obvious doctrine was “an integral part of the definition of duty.” Lugo at 516.

In Kandil-Elsayed, the Court found that Lugo was wrongly decided in two respects. First, the Court found that Lugo failed to address how the open-and-obvious doctrine applies in light of the adoption of comparative negligence in tort cases. The Court found that considering the open and obvious nature of the danger under the duty element was incompatible with comparative negligence. Specifically, it placed the judge, and not the jury, in charge of deciding an issue that included an analysis of the plaintiff’s negligence and would result in a plaintiff’s own liability functioning as an absolute bar to recovery.

Second, the Court found that the Lugo opinion’s inclusion of special aspects as an exception to the open-and-obvious doctrine was unworkable. The Court noted that it was unclear whether Lugo’s two examples of special aspects in which a possessor should anticipate harm from an obvious danger (an unguarded 30-foot pit, and standing water in front of the only ingress/egress to a building) had become the litmus test for recovery. Ifthe danger did not resemble those scenarios, courts commonly found no duty was owed. In addition, there was inconsistency of when dangers were “effectively unavoidable.” For example, a danger for an employee of a store who had to go to work was unavoidable, but the same danger was not for a customer.

The Court noted that the traditional categories of individuals on a premises (i.e., invitee, licensee, and trespasser), and the respective duties owed to each remains the same. The open and obvious nature of a danger is still a very relevant consideration in a premises-liability case. But it must be analyzed under whether the premises owner breached a duty of care to plaintiff and whether plaintiff shares fault. Further, the special aspects doctrine no longer applies. Instead, the unreasonableness or unavoidability of the danger is considered when deciding whether the possessor should have anticipated the harm despite its obviousness. This analysis is also to be considered when
evaluating the plaintiff’s fault.

Analysis

While the Supreme Court’s ruling in Kandil-Elsayed will certainly end the common practice of filing dispositive motions on the open-and-obvious doctrine, the case law that has developed over the course of the last 20 years remains useful. The Court made it clear that the plaintiff’s subjective observations, and notions such as the prevalence of ice and snow in Michigan, remain relevant to arguing comparative negligence. That being said, an obvious ramification of this ruling is that fewer premises-liability cases will get dismissed on a dispositive motion, and more cases will get to a jury.

There are certainly still viable defense strategies, and dispositive motions to be filed in a premises-liability case. A plaintiff must still prove that the case involves a dangerous condition on the land and that the premises owner had notice of the alleged condition. In addition, the plaintiff’s status as a trespasser, invitee, and licensee remains important, and impacts the duty owed to the plaintiff. Perhaps most significant, under Michigan’s modified comparative negligence, a plaintiff that is more than 50% at fault for their own injury bars a recovery for non-economic damages. This will include an analysis of whether the condition was open and obvious, and attorneys will have the traditional talking points at their disposal.

Kandil-Elsayed represents an end of an era in Michigan law. While the open-and-obvious doctrine will take on a new role in our evaluation of premises-liability matters, it remains alive with a renewed emphasis on comparative negligence.

Subscribe to receive Collins Einhorn blog posts.