James W. Pfister: More liability for land possessors
On July 28, 2023, the Michigan Supreme Court, by a 5-2 vote, substantially changed Michigan’s premise-liability law. This is when a person goes on another’s land and is injured. The potential liability of the land possessor is now increased, but the new system is fairer and more equitable, I believe. Litigation should increase, however.
When a person comes on another’s land, he is categorized as either a trespasser, a licensee (like a friend) or an invitee (like a business customer). The consolidated cases here dealt with invitees, where the duty of the land possessor is highest. The injured party is the plaintiff, the land possessor is the defendant. For liability to occur, the land possessor must have had a duty to the plaintiff, have breached that duty, which caused the injury.
The Michigan Supreme Court combined two cases: Kandil-Elsayed v. F and E Oil Inc. and Pinsky v. Kroger Co. of Michigan. Let’s focus on the Kandil-Elsayed case. There, the plaintiff stopped for gas at defendant’s gas station. She parked at the pump and began walking to the gas station building to pre-pay. Her pathway was covered with snow and ice. It had not been shoveled or salted. She slipped, fell and was injured.
She sued. The defendant gas station moved for summary disposition saying that it did not owe plaintiff a duty because the danger was “open and obvious.” The motion was granted. This open and obvious rule was based on the precedent of Lugo v. Ameritech Corp. Inc. (2001). The Michigan Supreme Court will herein overrule Lugo.
The key issue will be the open and obvious rule and how it fits with Michigan’s comparative fault framework, where the fact-finder jury decides the percentage of fault between the plaintiff and defendant. The Michigan Supreme Court held they do not fit; the Lugo precedent would allow the defendant to escape liability if there were an open and obvious danger even though the defendant had some fault. The open and obvious rule would normally foreclose any consideration of defendant’s fault, unless there were special circumstances. Chief Justice Elizabeth Clement wrote for the majority: “…the open and obvious nature of the danger— i.e., whether it is reasonable to expect that the average person with ordinary intelligence would have discovered it upon casual inspection… — is relevant to defendant’s breach and plaintiff’s comparative fault….”
If it were a duty issue, the defendant could simply say that he did not owe a duty in an open and obvious situation under Lugo. But it is not fair that plaintiff’s “own negligence can cut off liability in full. By shifting the open and obvious doctrine (from duty) to breach, it will allow the jury to do what this Court — and the Legislature — intended: conduct a comparative analysis of each party’s fault.”
Thus, even in an open and obvious situation, the jury should consider whether the defendant land possessor “should anticipate the harm despite such … obviousness.” The land possessor owes a duty to exercise reasonable care to protect the plaintiff from dangers on his land “despite its open and obvious nature.”
In the Kandil-Elsayed case, “we hold that the defendant owed a duty to plaintiff to take reasonable care to protect against the hazards of the natural accumulation of ice and snow on the property.” The jury will decide whether the behavior of the defendant was reasonable. Under the old Lugo standard, there would not be such inquiry where the open and obvious doctrine eliminated defendant’s duty, unless there were some special aspects to the danger. Thus, Justice David Viviano said in dissent that defendant owed no duty since “there was no evidence that simple ice was unreasonably dangerous, and there was nothing forcing the plaintiff to confront the risk.” This approach was overruled by the majority.
The new framework articulated by the court’s majority will give the jury discretion to allocate fault between the parties. Whatever the defendant’s liability is will be reduced by the percentage of the plaintiff’s fault. There will be more fairness and equity. There will also be more defendant liability. Land possessors will have to be more on their toes, like in removing the snow and ice promptly. More litigation is coming.
James W. Pfister, J.D. University of Toledo, Ph.D. University of Michigan (political science), retired after 46 years in the Political Science Department at Eastern Michigan University. He lives at Devils Lake and can be reached at jpfister@emich.edu.
This article originally appeared on The Daily Telegram: James Pfister: More liability for land possessors
