Recently, the Michigan Supreme Court significantly modified a decades old legal doctrine that will have wide reaching impacts on property owners and lessees. In its decision in a pair of consolidated cases (Kandil-Elsayed v F & E Oil, Inc and Pinsky v Kroger Co of Mich), the state’s high court effectively abrogated a legal doctrine known as “open and obvious.” Generally speaking, under this doctrine as it had previously been applied in Michigan, a premises possessor (whether that is the landowner, land contract vendee, lessee, or other party with the right to possess the property) did not have a duty to warn invitees of potentially dangerous conditions on the premises if the condition was “open and obvious.”
In practice, the open and obvious doctrine made it a question of law (that is a determination to be made by the judge, rather than the jury) as to whether the condition that caused an injury was discoverable by a person of average intelligence upon casual inspection. The doctrine was often applied in slip-and-fall and other personal injury cases and acted as an initial barrier for plaintiff’s claims. Defendant premises possessors would bring a motion (typically for summary disposition) and ask the judge to rule on whether the condition was open and obvious. If it were, the case would end there, and the plaintiff’s recovery would be barred. In fact, many premises liability claims likely never made it to the court to begin with, because plaintiff’s attorneys recognized the difficulty in getting past the open and obvious doctrine.
Now, in light of the Kandil-Elsayed and Pinsky decisions, the nature of an open and obvious condition is evaluated as an element of comparative fault that may reduce a plaintiff’s recovery but will not act as complete bar to recover. Moreover, the issue of comparative fault is a question of fact (that is a determination to be made by the jury). In other words, juries can consider the premises possessor’s failure to warn in their comparative fault determinations and still award a plaintiff a portion of their damages even when the condition on the premises that caused the injury was open and obvious. Now, when some is injured as the result of a fall, the claim is much more likely to go to the jury.
What happens next is anybody’s guess, but likely effects of this decision include an increase in the number of personal injury lawsuits filed, an increase in the number of personal injury cases going to trial, and across the board increases in property insurance rates for commercial and residential property owners. If you have questions, or require assistance, please contact your Fraser Trebilcock attorney.
This alert serves as a general summary and does not constitute legal guidance. Please contact us with any specific questions.