Reconsidering the “Open and Obvious” Doctrine: Implications of the Michigan Supreme Court’s Landmark Decision

In a significant ruling that affects property owners throughout the state, including Michigan’s community associations, the Michigan Supreme Court substantially altered premises liability law. On July 28, 2023, the Court ruled in the cases of Kandil-Elsayed v. F & E Oil, Inc. and Pinsky v. Kroger, overturning the long-established “open and obvious” doctrine. The Court’s decision means that the obvious nature of a hazard will no longer be a complete obstacle to legal claims but will now be considered within the context of shared responsibility or comparative negligence.

Previously, the “open and obvious” doctrine prevented a claim for premises liability if a danger was apparent to an average person, barring some exceptions. This rule was anchored in a 2001 Michigan Supreme Court decision, Lugo v Ameritech Corp, Inc. The court in Lugo stated that a duty of care would only apply if there was evidence of special conditions. As a result, many cases were decided in favor of the property owners at the initial stages, as judges found the danger to be open and obvious.

The term “duty of care” refers to a property owner’s obligation to maintain a reasonably safe environment for those legally on the property. The recent ruling criticizes the former approach of linking the “open and obvious” analysis to the existence of a duty of care. Instead, the court divided the analysis into two separate questions: (1) was there a breach of duty, and (2) was there comparative fault, meaning was the injured party also partly responsible?

Under this new ruling, the assessment of whether a condition is open and obvious will be part of the evaluation of a breach of duty and comparative fault. This approach allows a jury to determine the parties’ respective levels of fault, potentially leading to more cases going to trial. The importance of this decision lies in its practical impact on the legal process, shifting some decision-making from judges to juries. As a result, more premises liability cases based on negligence may proceed to trial, rather than being dismissed early on if the hazard was open and obvious.

What are the implications for Michigan’s community associations? The duty of care is a constant obligation, so it is essential to keep your premises safe. This new ruling potentially exposes associations to increased liability. Associations must be vigilant in addressing any dangerous conditions on their property, such as ice and snow in winter or trip hazards. It is crucial to promptly address obvious hazards on the property, as failure to do so can now put the association at substantially greater legal risk, despite the hazard being “open and obvious.” Prioritizing the safety of those who come onto the premises, by promptly identifying and remedying any clear dangers on the property, is of utmost importance.

In addition, insurance companies may see this change in premises liability law as a sign of greater risk of claims. As a result, insurance providers may anticipate a rise in payouts, leading them to increase premiums for association insurance policies to cover these potential costs. By taking early action and showing a strong focus on safety, associations can demonstrate to their insurance providers that they are actively managing the risks associated with their premises. This could involve implementing more rigorous inspection routines or enhancing maintenance protocols. By adopting proactive measures, associations would not only strengthen their defense to premises liability claims but can also enhance the overall safety of their properties.

Author
Amy M. Smith
Reprinted with permission from MAGWV, PLLC – Condominium & HOA Lawyers, Michigan