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How Changes to the Open and Obvious Doctrine in Michigan May Affect Your Case
Cochran, Kroll and Associates Cochran, Kroll and Associates
For Immediate Release:
Dateline: Detroit, MI
Tuesday, September 26, 2023


Legally Reviewed and Edited by: Terry Cochran

In the past, one of the most challenging issues to winning compensation in a slip-and-fall case was the open and obvious doctrine in Michigan. This doctrine held that property owners were not liable for injuries from hazards deemed “open and obvious” to a reasonable person, such as a pothole or ice on the sidewalk. The law made it difficult for claimants to file and win in slip-and-fall cases, even when property owner negligence was involved.

On July 28, 2023, this doctrine was overturned in a Michigan Supreme Court case. For those injured in a slip-and-fall, whether the hazard was open and obvious will only factor in as part of comparative fault, allowing for a more accurate examination of liability.

If you were hurt in a slip-and-fall accident, our slip-and-fall attorneys at Cochran, Kroll & Associates, P.C., can help you understand the implications of this recent decision for your case. We will help you gather evidence and seek maximum compensation for your injuries.

What Was the Open and Obvious Law in Michigan?

Michigan’s open and obvious law might sound like legal jargon, but its concept was straightforward. This law stated that property owners aren’t typically liable for injuries caused by open and obvious dangers to a reasonable person. In other words, if a hazard is so apparent that anyone paying even a little attention would notice it, the property owner might not be held responsible if someone gets hurt.

For example, imagine you are at a coffee shop. You slip on a patch of ice at the entrance that is large, visible, and in a place where you’d expect ice to form (like right outside the door on a cold day). Before the new ruling, the open and obvious doctrine would have made it challenging to recover compensation unless the ice was hidden under a mat or in a shaded area where you wouldn’t expect it.

So, why was there an open and obvious law in Michigan? The idea was to encourage people to be cautious and responsible for their safety. If a danger is clear and evident, the law expects you to notice and avoid it. At the same time, it also pushed property owners to fix hazards that aren’t easily noticeable, ensuring safer environments for everyone.

Implications of the Open and Obvious Law in Michigan for a Slip-and-Fall Claim

The open and obvious law could make or break your claim in a slip-and-fall case before the 2023 ruling. If the hazard that caused your fall was determined to be open and obvious, you would have a tough time holding the property owner liable for your injuries. Here’s why:

  • Burden of proof: In a slip-and-fall case, it’s up to you (the injured party) to prove that the property owner was negligent. If the hazard was open and obvious, the property owner could argue that you should have seen and avoided it, making it harder for you to prove their negligence.
  • Potential for dismissal: If a court determined the danger was open and obvious, your case could be dismissed before it even made it to a jury. This meant no compensation for medical bills, lost wages, or pain and suffering.
  • Public policy consideration: The law wasn’t just about individual cases. It also encouraged everyone to be more aware of their surroundings and take precautions. By potentially limiting liability in open and obvious situations, the law aimed to promote personal responsibility.

When the Open and Obvious Law Did and Didn’t Apply

Despite the blanket application of the open and obvious law, there were exceptions that slip-and-fall victims could consider with their experienced legal team. These included:

  • Special aspects: Even if a hazard was open and obvious, special aspects might make it unreasonably dangerous—for instance, a large pothole in a busy supermarket parking lot. While the pothole might be obvious, its location in a high-traffic area where distractions are common could make it unreasonably dangerous, allowing you to bypass the open and obvious defense.
  • Landlord-tenant situations: If you were a tenant and were injured due to a hazard in your rental property, the open and obvious law might not apply in the same way. Landlords have certain duties to maintain safe premises, and some hazards might not be considered open and obvious within the confines of a rental property.
  • Third-party causes: If a third party (someone other than the property owner) caused or contributed to the hazard, the open and obvious law might not be a straightforward defense. For example, if a delivery person spills oil outside a store and you slip on it, the store owner might still be liable if they were aware of the spill and did nothing to address it.

Real-Life Example #1: Lugo v. Ameritech Corporation, Inc.

One notable real-life example that helps illustrate how the open and obvious doctrine applied in Michigan slip-and-fall cases is Lugo v. Ameritech Corporation, Inc., 464 Mich. 512 (2001).

  • Background: In this case, the plaintiff, Gloria Lugo, sustained injuries after tripping over a pothole in a parking lot owned by Ameritech Corporation, Inc. Lugo filed a personal injury lawsuit against Ameritech, alleging negligence on the part of the company for failing to maintain the parking lot adequately.
  • Application of the open and obvious doctrine: The defense argued that the pothole was an open and obvious hazard, which Lugo should have seen and avoided. The Michigan Supreme Court, applying the open and obvious doctrine, evaluated whether the pothole was a hazard that an average person, under the same circumstances, would have foreseen as dangerous.
  • Ruling: The court ruled in favor of Ameritech, concluding that the pothole was an open and obvious danger and that the company was not required to warn Lugo of its presence. The court reasoned that the pothole was visible and that Lugo could have avoided it with reasonable care, exempting Ameritech from liability.
  • Learning from Lugo: For victims pursuing a slip-and-fall case, the Lugo ruling emphasized the importance of a well-strategized legal approach. For instance, your slip-and-fall attorney from Cochran, Kroll & Associates, P.C., would use their experience and knowledge of premises liability law to scrutinize every aspect of the incident, assess the foreseeability of the hazard, and explore any special exceptions that may apply.

Real-Life Example #2: Hoffner v. Lanctoe

An example in which the plaintiff succeeded in a Michigan slip-and-fall case, despite the open and obvious doctrine, was Hoffner v. Lanctoe, 492 Mich. 450 (2012).

  • Background: In this case, the plaintiff, Mary Hoffner, was injured after slipping and falling on ice in the defendants’ driveway, Thomas and Laura Lanctoe. Hoffner brought a personal injury lawsuit against the Lanctoes, alleging that the defendants had negligently failed to maintain the property, leading to her injury.
  • Application of the open and obvious doctrine: Initially, the trial court dismissed Hoffner’s claim, citing that the icy condition was open and obvious. However, the plaintiff argued that special aspects of the condition made it unreasonably dangerous, even if it was open and obvious.
  • Ruling: The Michigan Supreme Court ultimately ruled in Hoffner’s favor. The court concluded that the ice was unavoidable, as Hoffner had to cross it to reach her parked car. This constituted a special aspect, which, despite the open and obvious nature of the ice, made the defendants liable for Hoffner’s injuries.
  • Learning from Hoffner: The Hoffner case demonstrated that despite the open and obvious defense, there were avenues for victims to receive compensation when property owners were negligent. Our attorneys at Cochran, Kroll, & Associates, P.C. have represented many victims facing open and obvious defense in slip-and-fall accidents by gathering evidence and looking for proof that the doctrine did not apply.

The Michigan Supreme Court Ruling on the Open and Obvious Doctrine in Michigan

On July 28, 2023, the Michigan Supreme Court overruled Lugo v Ameritech in Kandil-Elsayed v. F & E Oil, Inc. and Pinski v. Kroger Co of Michigan.

The court explained that while it still matters if a danger is open and obvious, it only helps in determining if the landowner failed in their duty to keep things safe and comparing who is more at fault, the landowner or the injured person. The court held that land possessors must exercise reasonable care toward invitees, even if a danger is open and obvious.

So, what does this mean for potential slip-and-fall cases in Michigan?

  • The state will likely see more lawsuits from people injured on others’ property.
  • These cases are now less likely to be dismissed and more likely to proceed to trial, giving victims a better chance at receiving compensation.
  • If you have a pending case, this new rule applies to you, even if your case is on appeal.

Due to the recent ruling altering the open and obvious doctrine, consulting with an attorney from Cochran, Kroll, & Associates, P.C. is essential to understanding how this legal shift could impact your slip-and-fall claim. Our knowledgeable legal team can analyze your case under the new law, guiding you in pursuing a settlement with these new considerations.

Open and Obvious Doctrine

What’s the Difference Between the Open and Obvious Law, Comparative Negligence, and Constructive Notice?

Each of these rules plays a different role in determining who is at fault in a slip-and-fall case. With the new ruling in place, it’s essential to understand the differences in these concepts and how they may affect your claim:

  • Open and obvious law: Asserted that property owners weren’t typically liable for injuries caused by clear and evident hazards to a reasonable person. The new ruling invalidated this as a total defense for property owners—it now factors into the comparative negligence aspect of a claim.
  • Comparative negligence: This concept assigns a percentage to both parties for a slip-and-fall accident. Michigan uses modified comparative fault, which means you can’t seek a settlement if you are more than 50% liable for your injuries. However, if you are less than 50%, the court can assign you a percentage of fault, which will reduce your damage award by the same amount.

The new law surrounding the open and obvious doctrine means that if the hazard was open and obvious, it may factor into your percentage of fault. For example, you slip and fall on an open and obvious patch of ice. While this can no longer disqualify your claim outright, the jury can use this fact to reduce your compensation.

  • Constructive notice: This is about whether the property owner “should have known” about the hazard. Even if they didn’t directly know about a broken step, the law might determine they should have known if a reasonable person in their position would have discovered and fixed it. It’s the law’s way of saying property owners can’t turn a blind eye to potential dangers.

Steps to Take in a Michigan Slip-and-Fall Case

Taking the right steps to protect your interests in a slip-and-fall case in Michigan means ensuring you’re well-positioned to advocate for your rights and seek the compensation you deserve.

  • Document everything: Right after the incident, take photos of the hazard, your injuries, and the surrounding area. This can help prove whether the danger was open and obvious or not.
  • Seek medical attention: Even if you feel okay, some injuries, such as traumatic brain injuries, manifest hours or days later. See a physician as soon as possible. Your medical record is crucial evidence in your case, so keep all bills, receipts, and diagnostic test results when receiving medical care.
  • Witnesses: If anyone saw your fall, get their contact information. Their testimony might be invaluable, especially if they can attest to the hazard being less than obvious.
  • Consult an attorney: Before making any decisions, consult an attorney familiar with Michigan’s laws from Cochran, Kroll & Associates, P.C. We can guide you on the best course of action and help determine if you have a valid claim.
  • Stay off social media: Anything you post can be used against you. It’s best to keep details of your accident and injuries private until your case is resolved.
  • Know your rights: Just because a property owner or their insurance company says the hazard was obvious doesn’t make it so. Understand that this is a common defense to reduce your financial compensation, but with the right evidence and legal guidance, you can challenge this assertion.

Seek a Fair Settlement for Your Slip-and-Fall Injuries

Our attorneys at Cochran, Kroll & Associates, P.C. are dedicated to upholding your rights after suffering an injury due to a property owner’s negligence.

We will provide you with the skilled legal representation you deserve to help you win a fair payout for your damages. Contact us today and let us represent you in your slip-and-fall case under the new changes for the open and obvious doctrine in Michigan.

Our contingency fee basis means we only get paid if we win your case, so there is no financial risk to you to get started. Call our law firm today at (1-866-779-7331) and schedule your no-obligation, free case evaluation.

Disclaimer : The information provided is general and not for legal advice. The blogs are not intended to provide legal counsel and no attorney-client relationship is created nor intended.

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