On July 28, 2023, the Michigan Supreme Court fundamentally altered the business and property owners’ landscape by upending a 20-year precedent.

In the consolidated cases of Kandil-Elsayed v. F & E Oil Inc.  and Pinsky v. Kroger Co. of Mich, the Michigan Supreme Court, in a 5-2 decision, overturned the long-standing precedent of Lugo v. Ameritech Corp. Inc. Specifically, the Michigan Supreme Court overruled the open and obvious doctrine and its role in premises liability cases in favor of a comparative negligence analysis. The Court held that while the open and obvious nature of a condition is relevant to comparative fault it is no longer to be dispositive to the question of duty on the part of a premises owner.

In reviewing the standard on which premises cases will be decided going forward, the Court held that a premise plaintiff must still establish the four elements of a negligent claim – duty, breach, causation and harm. In terms of a premise liability case, whether a defendant owes a duty of the plaintiff is question of law for the court but whether the defendant breached said duty is a question of fact for a jury to decide.

The Court, in overruling the holding of Lugo determined it was wrongly decided because the open and obvious doctrine contradicts the comparative negligence doctrine that Michigan has adopted. Despite the overruling of Lugo, the court did note that several aspects of current premises liability law as it exists are still applicable. Specifically, the Court noted that the three status-based categories of licensee, invitee and trespasser remain the same.

Nevertheless, the entire analysis of liability on the part of a premise owner is now upended. The open and obvious doctrine is only relevant to the comparative fault of the plaintiff and the defendant’s breach of duty. The Court noted that these are questions for a jury and thus, more cases will be forced to incur the cost of a jury trial or will be pushed to settlement despite the plaintiff being comparatively or even entirely at fault for their own carelessness. This decision, while wonderful for the plaintiff bar, is extremely detrimental to business and property owners. The risks associated with current insurance policies will have to be reevaluated and a surge of lawsuits, including seemingly baseless claims, will be apparent and have already started to flood the courts with new filings. Business and property owners will be forced to defend themselves against frivolous lawsuits with the trial court having little to no power to dismiss the claims.

It remains unclear if the Michigan Supreme Court recognized how the overturning of legal precedent, that has allowed valid claims to proceed while preventing frivolous claims, will impact property owners and the economic status of these individuals and companies. The dissenting justices, Justice Viviano and Justice Zahra, recognized this valid concern noting that the Lugo decision was a commonsense rule that has been applied for 20 years without actual issues, despite the majority belief otherwise. Justice Viviano also recognized that all those who possess real property in Michigan – business and homeowners alike, will now immediately be faced with possible civil liability even for obvious hazards like ice and snow.

As Justice Viviano noted, the decision has the real potential to wreak havoc in negligence law in Michigan by expanding liability, increasing litigation and destabilizing the law as we know it. With this decision, trial courts will now be faced with the task of managing the influx of claims and finding a way combat the certainly of frivolous lawsuits.