By Adam C. ZwickerOn July 28, 2023, the Michigan Supreme Court overturned a 22-year-old precedent that protected property owners from having to litigate premises liability cases where the alleged defect was “open and obvious.” As a result, landowners and their insurers can expect an increase in the number of premises liability cases filed in Michigan.
In 2001, the Michigan Supreme Court decided Lugo v Ameritech Corp, Inc, 464 Mich 521; 629 NW2d 384 (2001). In Lugo, the Supreme Court held that a landowner has no duty to warn or protect invitees on its premises from hazards and defects that are “open and obvious.” A defect was open and obvious if a reasonable person exercising ordinary care would observe the defect and avoid it.
Importantly, the Lugo court applied the open-and-obvious doctrine to the “duty” aspect of a premises liability claim. In a premises liability claim, like other negligence claims, the elements are (1) a duty owed to the plaintiff, (2) breach of that duty, (3) causation, and (4) damages. As to the first element – whether the defendant owed a duty to the plaintiff – Michigan law holds that whether a duty is owed is a “question of law” for the courts. In re Certified Question from the 14th District Court of Appeals of Texas, 479 Mich 498, 504; 740 NW2d 206 (2007). This means that the question is generally decided by trial and appellate courts at a motion for summary judgment, not by a jury at trial. Therefore, Lugo had the practical effect of precluding many premises liability actions at their outset, because plaintiff lawyers knew that they would have to survive a motion for summary judgment in order to even have their cases heard by a jury.
However, on July 28, 2023 in Kandil-Elsayed v F&D Oil, Inc, __ Mich __; __ NW2d __ (2023) (Docket No. 162907), the Michigan Supreme Court overruled its 22-year-old precedent in Lugo and held that the question of whether or not a premises defect is open and obvious should be analyzed as part of the breach element, not the duty element as held in Lugo. This is important because whether or not a duty has been breached is a question of fact for the jury, and is therefore typically not appropriate for decision at a motion for summary judgment. Further, questions of breach are subject to Michigan’s modified comparative negligence statute, which holds that a plaintiff may not recover non-economic damages if he or she is more than 50% at fault, but may recover their proportional share of economic damages (i.e., medical bills, lost wages, etc.) even if they are more than 50% at fault. Therefore, it appears that in the future, whether or not a defect is open and obvious will be analyzed under the rubric of comparative fault and will not entitle landowners to summary judgment in circumstances that it may have in the past.
We see the practical effect of this decision as encouraging the plaintiff bar to bring premises liability suits that it may have declined in the past. Landowners and insurers should expect an increase in premises liability claims being filed with the courts by plaintiff lawyers hoping to maneuver these claims for settlement discussions or trial knowing that they will no longer have to survive a motion for summary judgment based upon the open-and-obvious doctrine.
The Supreme Court Opinion can be found here.
For questions, please contact Adam Zwicker