In a premises liability case, the plaintiff must prove that the occupier of the property on which the accident happened had a duty to protect him, and failed to exercise reasonable care to protect business guests from an unreasonable risk of harm caused by a dangerous condition of the property.3 There is a lot to unpack in that simple sentence, but this article focuses only on duty and reasonable care, because therein lies the recent change to Michigan law.
Duty
This is essentially a question of whether the relationship between the business owner and the injured person gives rise to a legal obligation for the business owner to take action to protect the person from encountering the condition of the property that caused the injury. For example, the duty to protect trespassers has historically been much different than the duty that applies to regular customers. Michigan law used to consider the following factors as part of analyzing whether the business owner owed a duty to the injured person:
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- Foreseeability of the harm
- Degree of certainty of injury
- Closeness of connection between the conduct and injury
- Moral blame attached to the conduct
- The policy of preventing future harm
- The burdens and consequences of imposing a duty and the resulting liability for breach
Reasonable Care
Whoever is responsible for maintaining the property doesn’t need to take extraordinary measures to eliminate any hazard. For example, a business owner cannot catch every snowflake before it hits the ground but must take reasonable steps to clear the walkways of snow and ice once the storm ends. So, business owners would reasonably be responsible to shovel walkways, add salt, and warn of black ice that cannot be removed. Another example would be to mop up spills promptly and use a “wet floor” sign while the surface dries.
In other words, a business owner has two ways to fulfill the duty to protect guests from dangerous conditions on the property:
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- Change the condition of the property to eliminate the danger, and/or
- Warn guests to be alert to the danger
The Michigan Supreme Court recently issued a ruling that changes the dynamics when it comes to “open and obvious” hazards. The 6 elements of duty that are considered above are now shifted to determine whether the business owner breached the duty to exercise reasonable care, rather than whether the duty exists in the first place.
Previously, a business owner had no duty to eliminate or warn of conditions that were “open and obvious,” as the guest was in an equal position to assess and avoid any such condition. Absent a duty, there is no legal liability. Going forward, business owners have a duty to take reasonable steps to make safe or warn about any dangerous conditions, and a guest’s failure to take reasonable precautions for his own safety when encountering an open and obvious hazard will be presented to the jury so the guest’s comparative fault4 can be assessed.
Case In Point
With all of that confusing legalese behind us, let’s look at the facts of one of the two cases that changed the law in Michigan.5 A customer parked at a gas pump on a snowy evening. The path from her car to the building was covered with snow and did not appear to be shoveled, salted, or otherwise treated. She slipped and fell on her way to the building to pre-pay, but the parking lot’s snowy condition was “open and obvious” and she was aware of the lot’s condition.
She filed her case in Wayne County where the trial court issued a summary judgment6 in favor of the defendant because the snowy condition was “open and obvious” such that the defendant owed the plaintiff no duty and the plaintiff could not recover. The Court of Appeals essentially agreed but wrestled with one of the exceptions to the “open and obvious” doctrine, specifically whether the snow and ice was unavoidable. In the end, the Court of Appeals reasoned that the plaintiff had elected to confront the hazard rather than go elsewhere or call for the attendant to come out and take her payment from her car.
The Michigan Supreme Court ruled that rather than resulting in a “no duty” situation, the open and obvious nature of the snowy parking lot should be considered by the jury in determining whether the defendant breached its duty, and if so, the plaintiff’s comparative fault. In other words, under the circumstances, was it reasonable for the defendant to have the premises in that condition, and if not, what percentage of fault for the accident lies with the condition of the premises, and what percentage should be attributed to the plaintiff’s actions in encountering the known condition of the premises.
What’s Next?
In truth, this brings Michigan in line with most other states that use comparative fault in negligence cases. The net effect of this shift will play out over time, but one might anticipate that more cases will be filed, and, of those cases, less will be dismissed by summary judgment prior to trial. In other words, the costs associated with premises liability cases are likely to rise as a result.
1Your general liability policy may include a provision for “medical payments” coverage, which provides a small amount toward medical bills an injured party incurs from an accident on your premises, regardless of legal liability.
2Kandil-Elsayed v. F & E Oil, Inc., ___ N.W.2d ___, 2023 WL 4845611 (Mich. July 28, 2023).
3In addition to duty and breach of that duty, the plaintiff must also prove that the breach of the duty was the legal cause of injury, and that the injury resulted in legally compensable harm.
4Comparative fault in Michigan is a relatively simple concept, but with a few complexities. In the simplest case where the jury reaches a $100,000 verdict in favor of a plaintiff determined by the jury to be 10% at fault against a sole defendant determined to be 90% at fault, the judge enters a judgment for $90,000. Change the plaintiff’s at fault percentage to 60% and it gets more interesting – the judgment would reflect 40% of the plaintiff’s economic loss (e.g., medical bills, lost wages) but 0% for non-economic damages (i.e., pain and suffering).
5The Court combined two different cases considering the same issue. Kandil-Elsayed v. F & E Oil, Inc. involves a fall on snow and ice in a filling station parking area; Pinsky v. Kroger Co. of Michigan involves a trip over the cable strung across a grocery store check out lane to signify that the lane was closed.
6Ruling that the uncontroverted facts presented by the parties lead to the conclusion that the defendant is entitled to judgment in its favor as a matter of law.
