The long-awaited change in premises liability has come, and there is nothing open or obvious about how that change will play out in the Circuit Courts. In short, the Michigan Supreme Court majority (with two notable dissents) has shifted the “open and obvious” analysis of a condition on the land away from whether a landowner owes a duty to an invitee at all, to whether a landowner breached that duty. The shift will likely result in the bulk of premises liability claims being placed into the hands of a jury, rather than a judge. The Michigan Supreme Court majority has also done away with the “special aspects” exception. How these changes will play out, as well as whether they will increase costs for landowners, increase litigation and the costs associated with it, or result in even greater confusion over what exactly is “reasonable care” remains to be seen. It seems, upon casual inspection by an ordinary person (and even several lawyers) that the application of the Supreme Court’s new rules for analyzing premises liability claims is anything but open and obvious and there may be unreasonable risks associated with making such drastic changes.
In the consolidated cases of Kandil-Elsayed v F&E Oil, Inc. and Pinsky et. al. v Kroger Co. of Michigan, the Michigan Supreme Court expressly overruled Lugo v Ameritech Corp, Inc. 464 Mich 512 (2001) finding it was “wrongly decided” and at odds with Michigan’s comparative fault law. The majority held that the open and obvious inquiry must be considered under the element of breach rather than duty, and in analyzing a plaintiff’s comparative fault because a plaintiff’s potentially negligent response to an open and obvious danger should act to reduce damages, not bar recovery. The majority also overruled the special-aspects doctrine as a departure from the anticipation-of-harm standard set forth in §343A of the Second Restatement of Torts. The majority declined to adopt the Third Restatement of Torts in total, and noted the open and obvious inquiry remains an objective one, but suggested it might not always be a question for the jury, particularly where evidence concerning breach generates no questions of fact.
The facts in both Kandil-Elsayed and Pinsky are straightforward and unremarkable. In Kandil-Elsayed v F&E Oil, Inc. the Plaintiff stopped for gas at a gas station operated by defendant on a snowy evening. On her way into the building to pay for her gas, she slipped and fell on a parking lot covered in snow and ice which did not appear to have been shoveled or salted. The trial court granted summary disposition to defendant on the basis that the snow and ice in the parking lot was open and obvious without special aspects. Plaintiff appealed, arguing that there was a question of fact as to whether the snow and ice in the parking lot were effectively unavoidable, however the Michigan Court of Appeals affirmed the trial court’s grant of summary disposition, noting that the snow and ice were not effectively unavoidable because plaintiff admitted she chose to confront the condition instead of simply leaving the gas station and going elsewhere, or calling a gas-station attendant to come out and assist her. Plaintiff appealed to the Michigan Supreme Court.
In Pinsky, the Plaintiff was shopping with her husband at a grocery store owned by defendant, Kroger Company of Michigan when she tripped and fell over a thin cable in a check-out aisle. The defendant moved for summary disposition on the basis that the hazard was open and obvious with no special aspects, and thus, it owed no duty to the plaintiff. The trial court denied Defendant’s motion. Defendant appealed to the Michigan Court of Appeals who reversed the trial court, finding that the cable was open and obvious, and was not unreasonably dangerous (i.e. it did not present a substantial risk of death or severe injury). The Plaintiff appealed to the Michigan Supreme Court.
The Supreme Court began its analysis with a historical survey of Michigan’s transition from contributory negligence to comparative negligence and discussed the effect of that transition had on Michigan jurisprudence and judicial interpretation of the First and Second Restatement of Torts. Under contributory negligence, where a plaintiff’s injury resulted from their own fault or the fault of both the plaintiff and defendant, a plaintiff was barred from recovery. The Court recognized that the open and obvious nature of a danger played a role in assessing the plaintiff’s contributory negligence. In the era of contributory negligence, courts relied upon the Restatement of Torts as persuasive and often adopted portions of it into the common law. In the premises liability context, Michigan courts looked to §343 of the First and Second Restatement of Torts and §343A of the Second Restatement of Torts in assessing a land possessor’s liability for harm to an invitee, and it was from these sections which Michigan courts drew the open and obvious danger doctrine. But according to the Pinsky and Kandil-Elsayed majority, the case law which developed during this period was unclear as to whether the analysis took place under the rubric of “duty” or “breach.”
Then, in 1979 Michigan abolished contributory negligence in favor a comparative fault scheme, codified in MCL 600.2957 through MCL 600.2959. The Supreme Court classified the premises liability case law which followed in the comparative negligence era as continuing to “muddy the waters” between duty and breach. In so doing, the Court addressed Riddle v McLouth Steel Products Corp, 440 Mich 85 (1992) in passing, largely focusing instead on the dissent. Notably, the Riddle Court (and numerous other Supreme Court decisions over the past several decades) applied the open and obvious danger doctrine within the comparative fault framework, incorporating the doctrine into the duty analysis.
The Pinski/Kandil-Elsayed majority focused most of its attention on Lugo v Ameritech Corp, Inc. 464 Mich 512 (2001). Relying on case law dating back to the nineteenth century and §§ 343 and 343A of the Second Restatement of Torts, Lugo reiterated that a land possessor generally does not owe a duty to an invitee to protect them from open and obvious dangers on their land (the “open and obvious danger doctrine”). However, Lugo held that even if a danger is open and obvious, a premises possessor may still owe a duty of care where the invitee provides evidence of “special aspects” of the condition – such as when the condition is effectively unavoidable or presents a substantial risk of death or severe injury (the “special aspects doctrine”). Most importantly, Lugo held that whether the danger is open and obvious, and whether any special aspects exist excepting application of the open and obvious danger doctrine, are questions of duty. Because the existence of a duty is a question of law to be decided by the court rather than by a jury, historically the practical effect of the open and obvious danger doctrine has been to permit a premises possessor to avoid liability at the summary disposition stage of litigation and without the time, expense, and unpredictability of trial.
Because Lugo itself was decided by the Michigan Supreme Court over twenty years ago, it carries the binding and precedential effect of stare decisis. Consequently, the Pinski/Kandil-Elsayed majority engaged in a multifactor analysis to determine whether Lugo must be overruled, concluding that it must.
In overruling Lugo, the Pinsky/Kandil-Elsayed majority attempted to clarify a new framework for premises liability cases. The majority reaffirmed the traditional duty owed to invitees – i.e. the duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition on the land – and reaffirmed the traditional status-based categories— invitee, licensee, and trespasser— which continue to define the level of care owed to one who comes onto the land of the possessor. The majority further stated that the open and obvious nature of a condition remains a relevant inquiry in a premises-liability case, but overruled all prior cases holding that it should be analyzed as part of a land possessor’s duty. Instead, the open and obvious nature of a danger – i.e. “whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection”—is to be analyzed under the rubric of breach and the plaintiff’s comparative fault. Other factors to be considered under the breach inquiry include whether, despite its open and obvious nature, the land possessor should have anticipated harm to the invitee. Even if duty, breach, causation, and damages are proven by the plaintiff, the majority stated that the jury should again consider the open and obvious nature of the hazard and the plaintiff’s choice to confront it as part of its assessment of comparative fault.
The majority noted that, under its decision, landowners are still not insurers of the safety of those who come onto their land and that both land possessors and those who come onto it must exercise common sense and prudent judgment when confronting hazards on the land. The majority suggests that it is not necessary for land possessors to “immediately rectify” hazards on their property to avoid liability, and that they need only exercise “reasonable care” under the circumstances. The majority provided no guidance, however, on what type of “reasonable care,” if any, might entitle a land possessor to dispositive relief as a matter of law.
Applying this new framework to the facts of Kandil-Elsayed, the Court held that there was a question of fact as to whether the defendant gas station breached the duty owed to the plaintiff customer. The underlying factual record before the Court did not make clear when it began snowing or whether it had stopped snowing when the plaintiff was injured. Finding these facts to be relevant specifically in the context of ice and snow cases, the Supreme Court harkened back to a 1975 decision, Quinlivan v Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244; 235 NW2d 732 (1975), in which the Michigan Supreme Court defined the duty of a land possessor in snow and ice cases as requiring that “reasonable measures be taken with a reasonable time after an accumulation of ice and snow to diminish the hazard of the injury to the invitee.” While this is somewhat encouraging for the land possessor in that it more specifically defines the duty owed in snow and ice cases, the Court was silent as to whether an injury that occurs during an accumulation of ice and snow will entitle a land possessor to dispositive relief.
Applying this new framework in similar fashion to the facts of Pinsky, the Court held that there were questions of fact as to breach – for example, the height of the cable being ankle height versus waist height— on which reasonable minds could differ, precluding summary disposition.
Although the Pinsky and Kandil-Elsayed decisions are silent on the retrospective versus prospective effect of their holding, [t]he general principle is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former decision is bad law, but that it never was the law.” Gentzler v Smith, 320 Mich 394, 398; 31 NW2d 668 (1948). Thus, absent clarification through future litigation, premises liability defendants can expect the holding in Pinsky and Kandil-Elsayed to apply to current pending litigation.
With the significant shift in decades old law, and the unpredictability in how the open and obvious danger doctrine will be analyzed and applied by the courts, as well as a new “rule” that seems anything but open and obvious, landowners and their insurers need to be prepared for an increase in legal challenges and appellate litigation. Because the Pinsky/Kandil-Elsayed decision renders summary disposition less likely, even in cases involving open and obvious dangers, the cost of litigation is also likely to rise as more cases proceed to trial. At Garan Lucow Miller, P.C. we understand the complexities of traversing this new landscape. Our experienced premises liability trial and appellate attorneys possess the skills and expertise to handle the intricacies of this ruling. Rest assured, we are here to help you successfully navigate these challenges and protect your interests effectively, just as we have for the last 75 years.
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Sarah Nadeau, Editor of The Garan Report Publication, is a Shareholder in our Detroit Office. Sarah can be reached at 313.446.1530 or snadeau@garanlucow.com
