Not So Open or Obvious Anymore: Michigan Supreme Court Rejects Longstanding Premises Liability Defense

In a blow against landowners, landlords, and insurers, the Michigan Supreme Court overturned a 2001 decision that controversially established the “open and obvious” defense to slip-and-fall claims and other premises liability cases. 

In a 5-2 decision in an opinion issued on July 28, 2023, the court radically changed the playing field for injured plaintiffs who pursue compensation for injuries sustained on another’s property. The justices made their ruling in the consolidated cases of Kandil-Elsayed v. F & E Oil Inc. and Pinskey v. Kroger Co. of Michigan.

Premises Liability Law to Date

Generally, Michigan law requires that a landowner protect those they invite onto their property from harm caused by a dangerous condition on the land. In 2001, however, an earlier Michigan Supreme Court case – Lugo v. Ameritech Corp. – established a broad defense, stating that the landowner did not have to protect from most dangers that were easily discoverable without warning, i.e., “open and obvious.” 

As a result, “open and obvious” became a complete defense to many claims where an individual was injured by a condition that the landowner was aware of and knew to be dangerous — simply because the condition was deemed “open and obvious.”   

The Law After Lugo

In its recent decision in Kandil-Elsayed and Pinsky, the court determined that Lugo was wrongly decided because the “open and obvious” defense conflicted with other Michigan law and generated confusion in Michigan courts by judges trying to apply it.

Despite the seemingly seismic shift, the openness and obviousness of a dangerous condition may still be an important consideration in future premise liability cases. 

Offering needed clarity, the Michigan Supreme Court articulated that a landowner must exercise reasonable care to protect invitees from harm caused by a dangerous condition on the property. A judge or jury must determine if the landowner still should have anticipated the harm, regardless of the open and obvious nature.

Putting the Burden Back on the Landowner

Lugo’s “open and obvious” defense all but encouraged landowners to leave their property in as much disrepair as possible – the more dangerous the condition, the less chance of liability for an invitee’s injury. With the demise of Lugo, however, property owners will have a greater incentive to maintain their property and make it safe for the people using it. Michiganders and their families hurt or killed in a fall or other incident caused by a negligent property owner’s carelessness will once again have their day in court to hold landowners accountable and seek compensation for their injuries and losses.