The Death of Open and Obvious

Michigan Supreme Court Obliterates Open and Obvious Defense to Premises Liability Claims.

For years, Defendants in Michigan have been able to utilize the “open and obvious doctrine” as a complete defense to premises liability litigation by asserting that the hazard or condition which caused a Plaintiff’s injury was so obvious and discoverable that a reasonable person would have avoided the hazard, and therefore, would not have sustained an injury. Under the open and obvious doctrine, a possessor of land had no legal duty to protect or warn his or her invitees of dangers that were determined to be “open and obvious.”

In issuing its recent opinion in the combined cases of Kandil-Elsayed v F & E Oil, Inc and Pinsky v Kroger of Michigan, the Michigan Supreme Court all but eliminated the open and obvious doctrine as litigants have known it for many years. Specifically, the Supreme Court overruled prior precedent as wrongly decided and held that a land possessor owes a duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition on the land – even if it the dangerous condition is open and obvious. However, the Court made clear that an open and obvious danger remains relevant to the question of whether a duty was breached and the comparative fault of the Plaintiff.

In sum, the open and obvious doctrine is no longer dispositive of a claim of premises liability. The practical impact of the Supreme Court’s decision will result in many more cases being decided by jury trial, rather than motion practice. It is also likely to lead to an increase in premises liability litigation.

If you have any questions regarding a premise liability matter, please feel free to contact Attorney R. Paul Vance, who has extensive experience litigating these claims in State and Federal Courts throughout Michigan.