The Fall of the “Open and Obvious” Defense and the Status of Premises Liability Cases Almost a Year Later
On July 28, 2023, the Michigan Supreme Court issued a long-awaited opinion in the cases of Kandil-Elsayed v F & E Oil, Inc, and Pinsky v Kroger, 512 Mich 95 (2023) that dismantled the open and obvious defense and reshaped the legal framework for analyzing cases of premises liability.
The two relevant cases were addressed and decided by the Supreme Court in a 5-2 decision, with Chief Justice Clement authoring the majority opinion and joined by the Court’s four more progressive justices: Justices Bernstein, Cavanagh, Welch, and Bolden. Justices Zahra and Viviano dissented.
The cases were decided together as they involved similar fact patterns that raised similar issues. In both cases, the Michigan Court of Appeals determined the open and obvious defense applied, and the cases were dismissed. Appeals to the Michigan Supreme Court followed.
The Supreme Court reversed the Court of Appeals however, after overturning the legal precedent of Lugo v Ameritech Corp. Inc., 464 Mich 512 (2001) and holding that the “open and obvious” defense is no longer to be used in the determination of whether the premises possessor owes a “duty” to an invitee. The Court held that the analysis of “special aspects” as used in Lugo, is also overruled.
Overturning Lugo
The Supreme Court overruled Lugo v Ameritech Corp. Inc., which had been the Supreme Court’s prior and seminal open and obvious case precedent that set forth the basis on which a premises possessor could rely to eliminate liability to invitees on the premises. Lugo was first decided in the year 2001, and there was a long line of case precedent that followed over the course of the next 22 years setting forth examples of hazardous conditions, such as snow and ice, that were deemed open and obvious and devoid of special aspects, thereby allowing for case dismissal.
In Kandil/Pinsky, the Supreme Court thoroughly analyzed the holding of Lugo, and Michigan’s comparative negligence framework, reciting that there was a conflict between the two. In seeking to reconcile the assessment of comparative fault in a premises liability case, the Supreme Court held that the open and obvious doctrine may not be analyzed any longer as an element of duty. Rather, the open and obvious doctrine is retained only in terms of deciding whether there was a breach of duty, and if so, the next step of analysis is to evaluate of the comparative fault of the parties and damages.
This is a significant departure from decades of past case precedent and the ability of the court to decide premises liability cases as a matter of law. Now, where factual disputes remain, the jury is to decide whether a condition is open and obvious, and whether the premises possessor breached a duty of reasonable care.
While not further elaborated upon through this writing, it is important to note that while the Supreme Court has shifted consideration of the open and obvious doctrine from duty to breach of duty and comparative fault, the Court did not alter the defenses that may still apply to premises liability cases such as impermissible speculation over the cause of the accident, and/or, lack of notice by the premises possessor of a hazardous condition on the land.
Current Premises Liability Framework Under Kandil/Pinsky
The Supreme Court set forth the “new framework” for premises liability law that applies to an invitee.
When analyzing any premises liability case, the status of the injured party on the land must be established. There are three classifications that includes an invitee, a licensee, or a trespasser. The analysis that is herein set forth applies to the invitee.
A premises possessor owes the invitee a “duty to exercise reasonable care to protect [them] from an unreasonable risk of harm caused by a dangerous condition of the land.” Kandil/Pinsky at p. 148.
As to the question of whether the dangerous condition is open and obvious, the court in Kandil/Pinsky explained:
Because an ‘open and obvious’ analysis frequently includes an analysis of the plaintiff’s own behavior – a failure to see a danger, appreciate a danger, or avoid a danger – situating the doctrine in the breach/comparative fault analysis will allow the plaintiff’s potentially negligent response to an open and obvious danger to reduce their damages, rather than cut off all recovery. The Legislature made clear when it enacted MCL 600.2957 [comparative fault statute] nearly 30 years ago that it intended the jury to allocate the ‘liability of each person’ in all tort actions. Id. at p. 145.
An open and obvious condition according to the Supreme Court is found where it is “reasonable to expect that an average person with ordinary intelligence would have discovered [the condition] on casual inspection.” Id. at p. 150.
If an open and obvious condition exists, then the “fact-finder” must “…consider whether ‘the possessor should anticipate the harm despite such … obviousness.’” Id. at p. 147. Also, “…we make clear that whether a land possessor should anticipate harm from an otherwise open and obvious danger is a relevant inquiry under breach, not duty.” Id. at p. 148.
Ultimately, the Supreme Court stated:
To summarize, a land possessor owes a “duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land.” Williams, 429 Mich at 499. If the plaintiff establishes that the land possessor owed plaintiff a duty, the next step in the inquiry is whether there was a breach of that duty. Our decision does not alter the standard of reasonable care owed to an invitee, meaning that it’s not necessary for land possessors to heed the advice in Justice Viviano’s dissent to “immediately . . . rectif[y]” hazards on their property to avoid liability. Rather, as has always been true, a land possessor need only exercise reasonable care under the circumstances. As part of the breach inquiry, the factfinder may consider, among other things, whether the condition was open and obvious and whether, despite its open and obvious nature, the land possessor should have anticipated harm to the invitee. If breach is shown, as well as causation and harm, then the jury should consider the plaintiff’s comparative fault and reduce the plaintiff’s damages accordingly. A determination of the plaintiff’s comparative fault may also require consideration of the open and obvious nature of the hazard and the plaintiff’s choice to confront it. Id. at p. 148-149.
Under the comparative fault statute(s), if the plaintiff is found by the jury to be more than 50 percent at fault, the plaintiff may not recover non-economic damages against the possessor of the premises. If the plaintiff is found less than 50 percent at fault, they may still recover damages, but the damages are to be reduced by an apportioned percentage of fault.
Based on this precedent and new legal framework, the premises possessor may seek to defend cases of premises liability by asserting there has been no breach of duty, because the hazardous condition is open and obvious, and the premises possessor could not have anticipated the harm that resulted.
Where there is no genuine issue of any material fact over the open and obvious nature of the condition, nor as to whether the harm could have been anticipated, then, it is still feasible the court may grant a motion for summary disposition as a matter of law finding no breach of duty.
Citing Case Precedent Since Kandil/Pinsky Was Decided
Since the decision of the Supreme Court, and as of this writing, there have been some 27 positive citing decisions, unpublished, where most involve reversal of summary disposition and remand based on the holding in Kandil/Pinsky.
Of these there are a few unpublished cases where the court has granted summary disposition to the defendants after a finding of no genuine issue as to any material fact.
In the case of Cunningham v Inland Pipe Rehab Holding Co, LLC, Unpublished Mich Ct of Appeals, docket no. 363159 (decided Oct 19, 2023), the Court of Appeals upheld a grant of summary disposition in defendant’s favor. The case is not binding, but it is instructive. The facts established that the plaintiff was riding her electric bicycle through a designated work zone in Detroit, where the defendant was performing sewer clean out. There was a hose across the road leading from the sewer to a vacuum truck, and there were closure signs indicating the work area. The plaintiff testified she could see the hose, and she observed vehicles driving over the hose before she decided to go over the obstacle on her bicycle. The height difference, however, caused her to fall and sustain injuries.
The defendant was found to be the possessor of the premises at the time of the fall, and so, premises liability principles applied. The court said, “In applying the new framework, we believe that the evidence was sufficient to establish that defendant did not breach its duty to [plaintiff].” Id. The court said there was no genuine issue of any material fact that the hose was an open and obvious condition, and the land possessor could not have anticipated the harm that resulted.
The court said:
There is no question of fact whether it was “reasonable to expect that an average person with ordinary intelligence” would have discovered the hose across Larned “upon casual inspection,” as [plaintiff] testified that she first saw the hose traveling westbound on Larned, and again directly encountered it on her way home traveling eastbound. She specifically pulled her bike over and stopped in the grassy median for 15 to 20 minutes for the sole purpose of observing cars traverse the hose and decided to cross it with her electric bike. Thus, she did discover the hazard upon casual inspection. Under the new framework for the exception of “whether the possessor should anticipate the harm despite such . . . obviousness,” id. at , 2023 Mich. LEXIS 1148 at *85, citing 2 Restatement Torts, 2d, § 343A, p 218 (quotation marks omitted); 2023 Mich. LEXIS 1148 at *85, citing 2 Restatement Torts, 2d, § 343A, p 218 (quotation marks omitted), the exception would not apply. Bradford [the agent] testified that he had been working at the same site for weeks, and had observed cars, bicycles, and scooters traverse the ramp over the hose without incident…
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Thus, even though the trial court erred in its analysis, concluding that defendant had no duty to protect [plaintiff] from an open and obvious danger by analyzing the open and obvious doctrine under the duty element of premises liability, which the trial court did before Kandil-Elsayed was decided, nonetheless, summary disposition was appropriate because there is no genuine issue of material fact under the new framework that defendant did not breach the duty owed to Cunningham to protect her from unreasonable harm where the hose was open and obvious. Id.
In the case of Wright-Burton v City of Detroit, Unpublished Mich Ct of Appeals, docket no. 359033 (decided May 9, 2024), the appellate court reversed and remanded for entry of summary disposition in favor of the defendant. In that case, the plaintiff tripped and fell over an outdoor curb leading from the sidewalk to the street at Little Caesars Arena in Detroit. The court noted that “…shifting ‘open and obvious’ from a duty question to a breach question did not mean that ‘open and obvious’ raises a jury question in all cases.” Id. at p. 7.
The appellate court relied upon prior court decisions holding that “curbs, like steps were generally discoverable on casual inspection.” Id. at p. 7-8. This was true even with the assertion that it was dark outside and crowded. The court said, “Although Kandil-Elsayed shifted the element to which the open and obvious danger doctrine was relevant, it did not otherwise alter the substance of the doctrine”. Id. at p. 8.
The appellate court then considered breach, finding there was no genuine issue of material fact that defendant had not breached its duty of reasonable care. This was a curb like all other curbs, it had been traversed without incident by many, and plaintiff admitted she had not even noticed there was a curb. In reaching its decision, the court said as a matter of law the curb was open and obvious, and that the premises possessor had not breached its duty of reasonable care concerning this hazardous condition on the land.
In the case of Kastl v Greektown Casino, LLC, Unpublished Mich Ct of Appeals, docket no. 363987 (decided June 27, 2024), the appellate court upheld the trial court’s grant of summary disposition in favor of the defendant. In that case, the plaintiff, who was highly intoxicated, fell on the bathroom floor when she slipped in her high heel shoes on a wet area of the floor. The trial court ruled that the slick spot on the floor was open and obvious, and held that plaintiff’s claims were also barred by MCL 600.2955a(1), due to her voluntary intoxication.
The appellate court reversed the trial court on the open and obvious finding because of the decision of Kandil/Pinsky, but affirmed dismissal nevertheless based on the intoxication statute.
That statute provides that a plaintiff cannot recover damages if the plaintiff is considered intoxicated/impaired, and because of the intoxication/impairment the plaintiff is at least 50 percent or more at fault for the accident and their injuries.
In the case, there was no genuine issue of any material fact that the plaintiff was intoxicated to the point of being considered “super drunk” under Michigan law.
The analysis then, was whether her intoxication/impairment rendered her at least 50 percent or more at fault for the accident. The undisputed facts were that she was drinking and taking painkillers, she wore high heel shoes that admittedly caused her trouble walking, where following the accident, she admitted in several statements that she had been unable to walk because of the shoes. Based on these facts, the appellate court affirmed summary disposition in favor of the defendant.
The analysis of premises liability cases going forward will therefore be assessed in part in terms of whether there was an open and obvious hazard, and whether the premises possessor could have anticipated the resultant harm despite the open and obvious nature of that condition. In rendering this analysis, where there are factual disputes it will be a jury question, but where the facts are not in dispute it is still permissible to bring a dispositive motion seeking a declaration of no liability as a matter of law from the court.
Anne V. McArdle
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