Drastic changes to the existing landscape of premises-liability law may be on the horizon. The fate of the open-and-obvious doctrine in general and the special-aspect exception in particular hang in the balance as the Supreme Court recently entertained mini-oral argument on the application for leave to appeal in Kandil-Elsayed v F&E Oil on March 2, 2023.

The doctrine has been around for the better part of a century, at least in some form, and become entrenched in the fabric of our premises-liability jurisprudence. The gist of the doctrine is that landowners do not owe invitees a duty to ameliorate or warn of open and obvious conditions—viz., conditions apparent or discoverable upon casual inspection—because such conditions, by their nature, come with their own warnings. The exception to the doctrine is narrow. Landowners may owe invitees a duty to eliminate or warn of open and obvious conditions if special aspects—viz., circumstances or characteristics that make such conditions effectively unavoidable or unreasonably dangerous—exist and give rise to a “uniquely high” likelihood of harm.

The issue that piqued the interest of the Supreme Court is whether the doctrine, as articulated in Lugo v Ameritech Corporation, is compatible with comparative negligence. Given the jurisprudential significance of the issue, the Supreme Court invited amicus curiae to weigh in. Appellate attorneys from Collins Einhorn filed an amicus-curiae brief on behalf of several insurance carriers.

Until now, the Supreme Court has never revisited Lugo. So whether the doctrine is compatible with comparative negligence may seem like an issue of first impression. But the Supreme Court confronted the issue over thirty years ago in Riddle v McLouth Steel Products Corporation and concluded that the doctrine operates in comfortable harmony with comparative negligence.

So why is the Supreme Court revisiting Lugo, rather than Riddle? According to some former Supreme Court justices (as well as some Court of Appeals judges), perhaps the problem is the exception to the doctrine, rather than the doctrine itself. They believe that until Lugo, Michigan adhered to the exception catalogued by the American Law Institute in the Restatement (Second) of Torts, which rests on foreseeability. More pointedly, they scoff at the notion that the doctrine speaks to the duty of care and presents a question of law for a court to resolve. In their view, the doctrine speaks to the standard of care and presents a question of fact for a jury to resolve.

We tackled the debate over whether the doctrine speaks to the duty of care or the standard of care. We also explained why, in the end, the debate is purely academic and the result is the same regardless of which side of the debate prevails. We highlighted why the Restatement approach is unworkable. We made a play for judicial restraint and urged the Supreme Court to consider the doctrine of stare decisis, the prudential principle of separation of powers, and the undesirable effect of abrogating the doctrine (or relegating the doctrine to a mere component of the analysis of comparative fault)—such as the unreasonable burden on courts, property and casualty insurers, homeowners and other landowners, small businesses, and consumers.

All told, we urged the Supreme Court to stay the course—to resist the temptation to adopt the Restatement approach, to uphold the doctrine, and to leave Lugo undisturbed. Whether the Supreme Court will do so remains to be seen. Based on the current composition of the Supreme Court, many fear that the doctrine may soon be a thing of the past.

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