The Demise of the Open and Obvious Defense? (Michigan’s Evolution of Premises Liability Law)

Premises liability cases are often litigated in Michigan with considerable difficulty. In a premises liability claim, a possessor of land owes a duty to an invitee to exercise reasonable care to protect them from an unreasonable risk of harm caused by a dangerous condition on the land. However, plaintiffs frequently find difficulty in successfully making claims under a premises liability theory due to the “open and obvious” defense.

The open and obvious doctrine attacks the element of duty in a premises liability claim by stating that a premises possessor’s duty does not extend to open and obvious dangers. A condition is open and obvious if “an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection.” Novotney v. Burger King Corp., 198 Mich App 470, 475; 499 NW2d 379 (1993). The open and obvious defense has long been criticized by plaintiff personal injury attorneys as being overly harsh and depriving injured persons their day in court after being injured from a dangerous condition existing on the premises.

As with most legal theories, there are exceptions to the rule. When there are “special aspects” to the condition, the open and obvious defense will not be accepted. The courts have interpreted “special aspects” to mean when the danger is 1) unreasonably dangerous, notwithstanding the open and obvious nature of the risk or 2) effectively unavoidable. An example given by the court was “an unguarded thirty-foot deep pit in the middle of a parking lot.” Lugo v Ameritech Corp, 464 Mich 512, 518; 629 NW2d 384 (2001). Thus, if the open and obvious defense is properly asserted and the special aspect exception does not apply, a land owner will be found not liable for injuries incurred on their land and will completely escape a claim of premises liability.

The courts had been reluctant to apply the “special aspects” exception to typical hazards that are encountered regularly, such as snow and ice. Michigan courts have traditionally held that the hazards presented by snow, snow-covered ice, and observable ice are open and obvious and do not impose a duty on the premises possessor to warn of or remove the hazard. Slaughter v. Blarney Castle Oil Co., 281 Mich App 474, 481; 760 NW2d 287 (2008).

However, the courts appear to be slowly eroding this traditional approach. In 2021, in the case of Estate of Livings v Sage’s Investment Group, LLC, 507 Mich 328; 968 NW2d 397 (2021), the Michigan Supreme Court held that an “open and obvious condition can be deemed effectively unavoidable when a plaintiff must confront it to enter his or her place of employment for work purposes.” In assessing this question, it is still necessary to consider whether any alternatives were available that a reasonable individual in the plaintiff’s circumstances would have used to avoid the condition. The Court explained that this analysis focused “on whether a reasonable premises possessor in the defendant’s circumstances could reasonably foresee that the employee would confront the hazard despite its obviousness.” But if an employee could have avoided the condition through the use of due care, like using a safe alternative path, then the condition was not effectively unavoidable. However, because it is reasonable to anticipate that a person will proceed to encounter a known or obvious danger for purposes of their work, a court cannot conclude that a hazard was avoidable simply because the employee could have elected to skip work.

More recently, in the case of Nathan v. David Leader Mgmt. Inc, unpublished per curiam opinion of the Court of Appeals, issued August 4, 2022, (Docket No. 357420), the Michigan Court of Appeals seems to further distance itself from the classic approach of the open and obvious defense. The majority and concurring opinions appear to be directing the trial courts in the direction of pure comparative fault, meaning, that when the open and obvious defense is properly asserted, the landowner may still be held liable for their percentage of fault for not warning the visitor of the hazard or removing the condition even though it might be open and obvious to the casual observer.

In Nathan, the plaintiff was staying at her mother’s apartment for two nights in a caretaking role. While exiting the building owned by the defendant, the walkways were completely covered with ice. The plaintiff attempted to get to the street by walking in the snow-covered grass, but slipped and fell. The court concluded that the snow-covered grass was an open and obvious danger and that a reasonable person would have discovered the risk presented upon casual inspection. However, the court, looking to Estate of Livings, explained that a fact-finder could reasonably conclude that she was serving in an employment capacity and needed to exit the building. Thus it was possible to infer that no reasonable alternatives were available to avoid the condition. Accordingly, the court concluded that there was a question of fact for the jury regarding whether the snow-covered path was effectively unavoidable.

However, the concurring opinion by Judge Shapiro appears to be far more telling of the direction the court is headed. Judge Shapiro explained his belief that the open and obvious doctrine fails to provide a clearly defined and workable scope of duty for premises possessors. He further suggested that in snow and ice cases, the Supreme Court should consider returning to the rule that the duty of a premises possessor is to take reasonable measures within a reasonable time after a natural accumulation of snow or ice to diminish the hazard of injury. Shapiro goes on to suggest the Supreme Court should return to a straight comparative negligence analysis and eliminate the open and obvious doctrine altogether.

This holding by the Michigan Court of Appeals and Judge Shapiro’s concurring opinion may well be a forecast of what is to come when an open and obvious premises liability issue next appears before the Michigan Supreme Court. Given the opportunity, and given the current makeup of the Court, the Michigan Supreme Court may very well decide that the open and obvious defense is an overly harsh remedy and apply a comparative negligence scheme to premises liability claims, at least in the context of natural accumulations of snow and ice.

This alert serves as a general summary and does not constitute legal guidance. Please contact us with any specific questions.

Fraser Trebilcock Shareholder Gary C. Rogers is recognized as one of the top civil defense attorneys in the area of automobile related cases, and he has co-written Michigan No-Fault Law-The Insurers’ Perspective, a handbook for handling claims under Michigan’s No-Fault Automobile legislation. Gary can be reached at grogers@fraserlawfirm.com or (517) 377-0828.

Fraser Trebilcock attorney Laura M. DeMarco concentrates her practice on insurance law and general business matters. Laura can be reached at ldemarco@fraserlawfirm.com or (517) 377-0834.