For decades, Michigan property owners have relied on the protection of the “open and obvious” doctrine. This legal principle stipulates that landowners have no duty to warn or protect against dangerous conditions that are open and obvious to the average person.
But with a recent Michigan Supreme Court decision, the landscape of premises liability law has dramatically changed.
A brief history of the open and obvious doctrine
Premises liability laws establish the duties property owners owe to visitors on their property. Generally speaking, Michigan property owners have a duty to protect visitors from certain harms. The specific obligations of a property owner depend on the visitor’s classification (i.e., the reason the visitor was on the property).
For example, property owners owe invitees (people entering a property for the benefit of the property owner) the highest degree of care. Among other things, property owners must warn invitees about dangerous conditions that the property owner knows or should know about.
Historically, regardless of how a visitor was classified, landowners in Michigan had no duty to warn visitors about dangers that were “open and obvious.” For example, a property owner in Michigan had no duty to warn an invitee about a large gravel pit because the invitee could easily see and avoid the gravel pit.
This “open and obvious” doctrine was solidified in Hoffner v. Lanctoe, 492 Mich. 450, 821 N.W.2d 88 (Mich. 2012).
In Hoffner, the plaintiff, Charlotte Hoffner, arrived at Fitness Xpress in Ironwood, Michigan, to work out. As she approached the entrance, she observed that the sidewalk was icy and the roof was dripping water. Nevertheless, Charlotte decided to walk across the ice. She slipped and fell and injured her back. Charlotte subsequently sued Fitness Xpress.
The Michigan Supreme Court issued a summary judgment in favor of Fitness Xpress, explaining that:
“A possessor of land owes no duty to protect or warn of dangers that are open and obvious because such dangers, by their nature, apprise an invitee of the potential hazard, which the invitee may then take reasonable measures to avoid.”
A turning point: challenges to the doctrine
In the Spring of 2022, the Michigan Supreme Court began to review the "open and obvious" doctrine. Critics argued that it was inconsistent with Michigan's comparative negligence framework and had turned into a de facto contributory negligence scenario. They advocated for allowing cases to proceed to a jury, with damages reduced by the plaintiff’s percentage of fault.
This approach would lead to more cases surviving the summary judgment phase, likely resulting in more settlements and a higher likelihood of insurers paying to avoid trial costs.
The game-changer: Supreme Court’s ruling on July 28, 2023
In a landmark ruling, the Michigan Supreme Court adopted the critics' argument, overturning decades of precedent.
More specifically, the Michigan Supreme Court held that the open and obvious nature of a condition is relevant to the breach of duty and comparative fault, rather than part of the property owner’s duty itself.
To put it another way, Michigan premises liability law now obliges property owners to argue to the jury that they did not breach their duty when they failed to remedy a dangerous condition on the premises because a reasonable person would see the dangerous condition and avoid it.
Even if the property owner convinces the jury that the condition was open and obvious, they may still be liable if the jury determines that the landowner should have anticipated the harm to the visitor despite the open and obvious nature of the dangerous condition. Assuming the jury finds a breach, the jury is then tasked with considering whether the plaintiff’s choice to confront the open and obvious condition was reasonable under the circumstances or whether they were partially at fault.
Implications: the future of premises liability law in Michigan
We won’t understand the full impact of the Court’s ruling for some time. However, shifting the open and obvious doctrine to the breach analysis means fewer motions for summary judgment will be granted in premises liability cases. As a result, Michigan courts can expect an influx in premises liability cases. What’s more, homeowners insurance premiums are likely to rise as a result of the increased litigation.
With the recent Supreme Court ruling, Michigan's premises liability law has entered a new era. Though the full ramifications of this ruling won’t be known for some time, we’ll continue to monitor things here at Enjuris.