Property owners in Michigan had long enjoyed the protection from liability for hazardous conditions on their property that are considered “open and obvious.” The “open and obvious” doctrine arose out of the idea that while a property owner had a duty to maintain their property in a reasonably safe condition, a landowner had no duty to warn of an open and obvious danger.

In Hoffner v Lanctoe, 492 Mich 450, 460-461; 821 NW2d 88 (2012), the Michigan Supreme Court explained that a “possessor of land owes no duty to protect or warn of dangers that are open and obvious because such dangers, by their nature, apprise an invitee of the potential hazard, which the invitee may then take reasonable measures to avoid” (quotation marks and citations omitted). The test was whether it was reasonable to expect that an average person with ordinary intelligence would have discovered the hazard upon casual inspection. Id. at 461. Absent the existence of “special circumstances” making the condition unreasonably dangerous or effectively unavoidable, courts would find that the landowner owned no duty to the injured party and the case would be dismissed at the summary disposition stage. See Lugo v Ameritech Corp, Inc, 464 Mich 512; 629 NW2d 384 (2001). That longstanding protection changed effective July 28, 2023 when the Michigan Supreme Court issued its ruling in the cases of Kandil-Elsayed v F & E Oil, Inc and Pinsky v Kroger of Michigan.

The change in law was foreshadowed in the spring of 2022 when the Supreme Court accepted an application to review the open and obvious doctrine. Long time opponents of the doctrine and its proficiency to prevent cases from going to a jury had argued that the open and obvious doctrine was inconsistent with Michigan comparative negligence framework and essentially created a contributory negligence scenario which had been otherwise abolished by the Courts and state legislature. Instead of barring the claim completely, opponents argued that the cases should be permitted to go to a jury and that a party’s damages should be reduced by their percentage of fault. The result would be that more cases would survive the summary disposition phase and in the era of alternative dispute resolution, more cases would be resolved through settlement negotiations. The obvious implication for landowners and insurers is that more cases would be filed given the increased likelihood that insurers would pay to resolve a case to avoid the expense of going to trial.

In a monumental shift in premises liability law, the Michigan Supreme Court essentially adopted the arguments of the opponents of the open and obvious doctrine and threw out decades of premises liability law holding that Lugo v Ameritech Corp, Inc, 464 Mich 512; 629 NW2d 384 (2001) was wrongly decided in two aspects. First, the Court overruled Lugo’s decision making the open and obvious doctrine part of a land possessor’s “duty” and held that the “open and obvious nature of a condition is relevant to breach of a duty and the parties’ comparative fault.” Second, the Court overruled the special aspects doctrine and held that “when a land possessor should anticipate the harm that results from an open and obvious condition, despite its obviousness, the possessor is not relieved of the duty of reasonable care.” Going forward, the Court instructed that “whether a land possess should anticipate harm from an otherwise open and obvious danger is a relevant inquiry under breach, not duty. The impact of this change is highlighted in a footnote which opines that “if a hazard is open and obvious, it should be more foreseeable for a defendant to notice the hazard, anticipate the danger it would cause to an invitee, and exercise reasonable care to remove or repair the danger.”

In removing the open and obvious doctrine from the duty analysis, the Court reversed the judgment of the Court of Appeals and held that the defendants in Kandil-Elsayed v F & E Oil, Inc and Pinsky v Kroger of Michigan owed the injured plaintiff’s a duty of care, but that genuine issues of material fact remained as to whether the defendants breached that duty and, if so, whether the plaintiffs were comparatively at fault which would reduce their damages.

The impact of the Court’s ruling is still being assessed as it will have far-reaching implications on premises liability cases, but the implications are clear. Shifting the open and obvious doctrine to the breach analysis means fewer motions for summary disposition will be granted in premises liability cases. Eliminating the special aspects doctrine shifts the open and obvious nature of a condition from acting as a shield for the defense to a sword for the plaintiff. This means increased defense litigation costs and potential insurance coverage disputes. Coverage policies should be carefully reviewed for language regarding the duty of a policy holder to maintain an insured property. If the harm from a clearly open and obvious condition could be anticipated, such as a tripping hazard from uneven concrete or asphalt, insurers may seek to deny coverage if the coverage document requires an insured to maintain the premises in a reasonably safe condition. It could also result in increased insurance premiums if open and obvious conditions are not abated or exclusions for certain open and obvious conditions.