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Changes Coming to the Open and Obvious Defense in Michigan?

Since the Michigan Supreme Court decision in Lugo v Ameritech Corp Inc, 464 Mich 512; 629 NW2d 384 (2001), Michigan courts have allowed defendants in premises cases to argue the open and obvious defense. This defense acts as a complete bar to a premises liability claim where the premises’ condition was open and obvious based on an objective standard of whether an average person with ordinary intelligence would have discovered the condition upon casual inspection. There are two exceptions for “special aspects” where the condition is “unreasonably dangerous” or “effectively unavoidable.”

This defense has resulted in a considerable decrease in premises liability claims. However, in 2021, three of the justices of the Supreme Court, Justices McCormick, Bernstein and Cavanagh, signed a concurring opinion in the case of Estate of Donna Livings v Sage’s Inv Grp LLC, 507 Mich 328; 968 NW2d 397 (2021) in which they criticized the open and obvious defense and questioned its continued viability. These justices questioned whether the nature of the hazard should either merely create a rebuttable presumption or simply be taken into account when a jury assesses a plaintiff’s comparative fault rather than serve as an absolute defense.

In March of this year, the Michigan Supreme Court held oral arguments on three appeals pertaining to the ongoing viability of the open and obvious defense. The Court expressly asked the parties to address whether the current law is consistent with Michigan’s general rules of comparative negligence and whether the Court should overrule its prior decisions and adopt a new approach for analyzing premises liability cases under an alternative framework. These cases are Kandil-El Sayed v F&E Oil, Inc., Supreme Court Docket No. 162907, Pinsky v Kroger, Supreme Court Docket No. 163430, and Becker v Enterprise Leasing, Supreme Court Docket No. 163702.

The Court will likely issue a decision by the end of this month. There is a good chance the Court will be modifying, if not outright eliminating, the open and obvious defense. As soon as the Court issues its opinion, we will advise of the result and our assessment of the decision’s impact.