Most of us learn from a very young age to watch out for danger. Especially any obvious hazards. If you see an open fire, don’t stick your hand in it. If you see a rusty blade, don’t scrape it along your arm. If you see a large sheet of ice on the parking lot, you should be careful not to slip. All these things are examples of what we might call “open and obvious” dangers.
For roughly two decades, Michigan’s courts have agreed that people should know better than to mess with open and obvious dangers. Therefore, people who choose not to avoid entirely obvious situations have largely been unable to win lawsuits for the injuries they suffer. Now, however, this might change.
A New Take on Business Owners’ Legal Responsibilities
Since 2001, Michigan businesses and property owners benefitted from the Supreme Court’s opinion on Lugo v Ameritech Corp, Inc. This was the case that clarified the state’s stance on the “open and obvious danger” doctrine. Specifically, in that case, the Michigan Supreme Court opined that businesses and property owners were not liable for open and obvious dangers because they had no “duty” to protect members of the public from things they could easily recognize and avoid.
Here, let’s pause for a moment because the recent ruling made a big deal about the fact that Lugo said business owners held no “duty” to protect the public from open and obvious dangers.
The Supreme Court’s decision to overturn Lugo and its take on the open and obvious danger doctrine came from a review of two separate, concurrent cases. These were Kandil-Elsayed v. F & E Oil, Inc and Pinsky v Kroger Co of Mich. In both these cases, the plaintiffs suffered injuries they claimed were due to dangerous premises. Kandil-Elsayed slipped and fell on the ice and snow covering the ground of a gas station. Pinsky tripped over a cable that led from a grocery store checkout counter to a display basket. The appellate courts summarily dismissed both their cases because the hazards were open and obvious.
This is how such cases have proceeded since 2001 and Lugo. But it’s noteworthy because business owners can only ask the courts to dismiss such cases when there are no questions of the facts.
In premises liability cases, plaintiffs must show that the property owners owed a duty of care and that they failed to meet that duty. As the Supreme Court recently noted, the question of what duty a property owner may owe is a question of law. The question of whether the property owner breached said duties is a question of fact. Courts may not summarily dismiss any cases in which there are questions of fact.
This is important because it means that from Lugo in 2001, until the recent ruling, the Michigan Supreme Court sided with business owners’ ability to dismiss claims based on open and obvious dangers.
Nonetheless, both Kandil-Elsayed and Pinsky appealed their dismissals, and the Supreme Court agreed to look at them. The key question was whether the long-held stance on open and obvious dangers was consistent with Michigan’s system for comparative negligence. Ultimately, the Supreme Court ruled that Lugo was inconsistent with the state’s adoption of comparative negligence. Under a system of comparative negligence, the question of whether a hazard is truly “open and obvious” becomes a question of fact.
What Does This Mean for Michigan Businesses?
The most likely scenario is that business owners will need to fight more premises liability cases in trial or negotiate settlements. The recent ruling does not prevent business owners from moving for summary dismissal on all premises liability cases. However, it does remove one of the leading reasons business owners have successfully dismissed cases over the past decades.
This increased exposure to liability may prompt secondary adjustments, as well. Business owners may want to increase the surveillance or documentation of any hazards on their premises. They may want to use signs to warn of possible risks or take other reasonable steps to warn visitors.
In the end, the Supreme Court’s ruling does not say that plaintiffs can hold businesses liable for “open and obvious” dangers. Instead, it says that they can argue the businesses are responsible for some share of the blame. And business owners will need solid strategies to ensure they don’t take more of the blame than they should.