What happens when someone slips on the ice at their apartment complex because the landlord did not shovel and salt? What if a customer slips on a greasy spill in a grocery store, because the store employees failed to mop? What if someone suffers serious, lifelong injuries because of this? What should the owner and, more importantly, their liability insurance do to make right with the injured customer? For years, Michigan law has been, quite frankly, an absolute mess when it came to answering these important questions that occur frequently in trip and fall, slip and fall, and other premises liability cases. Fairly recently, we have seen a significant move by our Supreme Court as to how these claims are decided.
In a normal negligence claim, the injured person must prove duty, breach of duty, causation, and damages. Consider a car striking a pedestrian who is crossing the road.[1] The driver of the car has a duty to drive his car safely. If they drive the car into a pedestrian, they’ve breached that duty. This breach of duty likely causes injury to the pedestrian. So, they’re entitled to recover damages including medical costs and compensation for their pain and suffering.
About a century ago, we applied a concept called “contributory negligence” to negligence claims. Under “contributory negligence,” if the injured person was even partially at fault for the injury, at all, they recovered nothing. So, in the car example, if we find out that the pedestrian did not look both ways before he crossed, he gets nothing. This could result in some very unfair results. The driver could be speeding, drunk, driving blind with an iced-over windshield, whatever. It didn’t matter. If the pedestrian were even 1% at fault, they get nothing. Recognizing that unfairness, in the late 70’s the courts and the legislature of our state did away with contributory negligence and moved to “comparative fault.” Under comparative fault, the jury divides the fault between the plaintiff and the defendant as a percentage. In our car example, it could say “fine. The pedestrian was 1% at fault because he didn’t look. But, the speeding, drunk, blind driver was 99% at fault. So, of the $100 in damages we think the pedestrian suffered, we’ll make the driver pay $99.” In making a “comparative fault” decision, the same jury could also consider other things the pedestrian did wrong as well. Maybe the pedestrian was also drunk, and stumbled into the road. Maybe they saw an attractive person on the other side of the street, so they ran across without looking. Maybe, based on these additional considerations, the jury thinks they’re 50% at fault. 75% at fault. 42.33% at fault. The percentage doesn’t matter. What matters is that comparative fault allows the jury to do justice by considering all of the specific facts of the incident and then deciding who is more (or less) responsible for what happened, and craft the award accordingly.
Unfortunately, the comparative fault revolution did not reach premises liability injuries. Premises liability claims are a specific type of negligence claims. Business owners[2] have a duty to make the property safe for people that come there to do business with them. Mop your floors, and put up “wet floor” signs after you do. Plow and salt your sidewalks. Don’t leave open holes in the parking lot. A business breaches this duty by failing to make the property safe for their customers. Someone could slip and fall on the ice. They could trip and fall on a hazard you leave unattended. Someone injured by a dangerous condition left unattended on business property is entitled to damages. But, there was a caveat to this: the “open and obvious doctrine.”
In 2001, the Michigan Supreme Court decided Lugo v. Ameritech Corporation. The Lugocourt decided that “where the dangers are known to the [injured party] or are so obvious that the invitee might reasonably be expected to discover them” unless there are “special aspects” that “create an unreasonable risk of harm” or unless the dangerous condition is “effectively unavoidable.” This is known as the “open and obvious” doctrine.
On its face, open and obvious made some sense. If a danger is, in fact, “open and obvious” someone should not be able to sue you if they get hurt by it. For instance, if there is a big, giant, deep, open and uncovered -but very obviously visible- hole in a parking lot and a foolish shopper goes and jumps right into it, they probably shouldn’t be able to sue the owner. But, in the two decades since Lugo was decided, the “open and obvious” doctrine became a ‘beast that cannot be fed’ that more, often than not prevents, people with legitimate claims from having them heard.
One common defense tactic was to show that because the person saw what hurt them after they got hurt, it was “open and obvious.” The old woman who slips on an unmarked wet grocery store floor may not have seen the water until she was injured, on the ground, lying in the puddle. The defense would ask her in deposition “after you fell, did you see what you fell on?” and she would say “yes, I saw it. After I fell and was lying in the water, I could see it.” The defense would later move to dismiss the case, arguing that because the plaintiff saw the danger after they got hurt, he could have “reasonably be[en] expected to discover them” and so it was “open and obvious.” This tactic worked a shocking amount of the time.[3]
Worse, since “open and obvious” was phrased in fairly vague terms, the courts frequently applied it inconsistently and very often it has been applied to dangerous conditions that were neither “open” nor “obvious.” For instance, ice in an entryway was held to be “open and obvious”[4] while “black ice” (whatever that means) in a gas station parking lot was not.[5] In deciding whether a condition is “open and obvious,” the courts are supposed to look objectively at the dangerous condition, but not subjectively at the injured person. But, that didn’t stop the Court of Appeals from ruling in a different case that “black ice” was “open and obvious” because the person who slipped had “lived through 85 Michigan winters” and so should have anticipated ice on a patio, even if it was not visible.[6] The Court of Appeals has held that a one-inch metal wire was not “open and obvious”[7] but also held that a one-inch metal strip protruding into a walkway was.[8] The Court of Appeals has held that “water on a floor constitutes an open and obvious condition when it is ‘visibly wet.’”[9] A different three-judge panel of the same court has held that standing water in a grocery store entryway is “open and obvious.”[10] But, a different three-judge Court of Appeals panel has also ruled that “accumulations of liquid on floors are not always observable and thus not inevitably open and obvious.”[11] So, water on a floor is per se “open and obvious,” but it is not, depending on which panel you are in front of.
The Courts’ decisions of what is, and is not, “open and obvious” have been all over the board and cannot be read with any internal consistency or cohesion. This caused incredible uncertainty in any premises liability case. It truly was a coin toss: if the condition was “open and obvious,” the plaintiff loses and, if not, they win. This came down, quite frankly, to the arbitrary and capricious whim of whatever panel of judges happened to be deciding the case. The whole purpose of our system of precedent is that a lawyer should be able to read cases that have been decided before, discern legal principles, and predict how the case they are considering will be decided. The complete lack of cohesion and common logic between “open and obvious” cases made it virtually impossible to evaluate the strength and weakness of claims and defenses. This virtually guaranteed protracted litigation, because any claim was an “all or nothing” proposition until the “open and obvious” defense was actually litigated and decided. The end result was that premises liability cases were virtually impossible to settle fairly, pre litigation.
In doing away with contributory negligence in favor of comparative fault, our legislature decided that an injured person should be able to recover, even if they are partly at fault for the injury, so long as the jury reduces their award by their fault in causing the injury. Apart from resulting in wildly irreconcilable legal results, “open and obvious” also acted to retain the contributory negligence concept -that our law tried to do away with 50 years ago- but only for claims involving property owners. The obvious solution for all of this is to apply comparative fault to premises cases. Should the 85-year-old woman have expected there to be black ice? Then she’s partly at fault, the jury can reduce her recovery accordingly. Would this one-inch wire, or one-inch strip have been avoided if the shoppers were looking out? Fine, the jury can reduce their recovery accordingly. Was the ice on the sidewalk visible to the Plaintiff? The jury could consider how “visible” it actually was, and adjust the recovery accordingly.
In July of this year, the Michigan Supreme Court considered all of this in Kandil-Elsayeed v. F&E Oil, Inc.[12] The Court overruled Lugo. It held that comparative negligence should apply to premises liability claims. While the “open and obvious” nature of a dangerous condition on property may be considered in evaluating the land owners’ comparative fault, it may no longer be the basis of avoiding liability entirely.
Kandil is truly a sea change in premises liability claims. The end of “open and obvious” as a complete defense will stop the courts from dismissing claims at an early stage. Since the question of whether a condition is truly visible upon casual inspection will be a factor the jury considers in apportioning fault, we can expect more of these claims to go all the way to a jury instead of being dismissed early by the judge. This will likely result in an uptick in litigation, because of the reduced risk of early dismissal. But, it will also likely incentivize settlement because it is no longer an all-or-nothing coin toss on dismissal. It will also likely increase the legal exposure to property owners, because cases that would have been dismissed as “open and obvious” are now partially compensable based on comparative fault.
If you have been injured in a slip and fall, trip and fall, or other premises liability claim, or if you are a property owner defending such a claim, you should consider consulting with an experienced attorney who understands the significant change in the law.
Collin Nyeholt is an Associate Attorney at the Law Offices of Casey D. Conklin, PLC. He is a fourteen-year practitioner with concentration in employment law and state and federal civil litigation. He is licensed to practice in the State of Michigan, the federal Eastern and Western Districts of Michigan, the Sixth Circuit Court of Appeals and the United States Supreme Court. He can be reached at: 4780 Okemos Road, Suite 2, Okemos, MI 48864, (517) 522-2550, collin@caseydconklin.com.
[1] And, for purposes of this discussion, ignore the implications of the Michigan No Fault Act that come to bare on a claim involving operation of a motor vehicle. [2] Premises liability claims may also be brought against private property owners, eg homeowners. The analysis is a bit different for private claims and is not considered in this comment. [3] See, eg Richard v. Meijer, Inc., No. 342766 (MI Ct. of App. April 23, 2019), Kennedy v. Great Atlantic, 274 Mich.App. 710 (2007). [4] Hoffner v. Lanctoe, 492 Mich. 450 (2012) [5] Slaughter v. Blarney Castle, 281 Mich.App. 474 (2008). [6] Buhalis v. Trinity Continuing Care Servs, 296 Mich.App. 685 (2012). [7] Price v. Kroger Co. of Michigan, 284 Mich. App. 496 (2009). [8] Shipley v. Kmart Corp., No. 335523 (Mi Ct. of App. October 10, 2017). [9] Perez v. Univ. of Detroit Jesuit HS, No. 306969 (MI Ct. of App. Nov. 27, 2012). [10] Labadie v. Walmart Stores, Inc., No. 325636 (MI Ct. of App. April 26, 2016). [11] Pernell v. Suburban Motors Co., No. 308731 (MI Ct. of App. April 23, 2013). [12] Nos. 162907 and 163430 (MI Supreme Court, July 28, 2023).
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