As winter inevitably descends on Michigan, bringing with it the usual mix of wind, snow, rain, and ice, it’s a good time to review the potential liability that property owners face if someone is injured while on your premises. A 2023 Michigan Supreme Court ruling changed how courts handle these kinds of cases. That change means that property owners (including tenants or others responsible for caring for property) must be more diligent when taking care of things like fallen leaves, accumulated snow, and icy roads and sidewalks.
Notice of a Dangerous Condition, and a Visitor’s Legal Status
In general, a property owner in Michigan has a duty to remediate dangerous conditions on its premises only if it has knowledge of the dangerous condition. Knowledge can be actual or constructive. Actual knowledge exists if there is evidence the property owner was aware of the dangerous condition. Constructive knowledge exists if the property owner should have known of the dangerous condition because of its character or the duration of its presence.
Furthermore, a property owner’s duty varies based on the legal status of the injured party. Did the defendant owe a duty of care to the plaintiff? This often depends on the plaintiff’s reason for being on the premises where they were injured. For example, a customer walking from the store’s parking lot to an open store would likely be considered an “invitee,” someone who the defendant store owner would want to come to visit the store. A court might very likely rule that the store owner owed a duty of care to this customer. On the other hand, the same person walking up to the shuttered door of the store at 2 a.m. might be considered a “trespasser,” and the court might rule that the store owner owed no duty of care to the trespasser.
“Open and Obvious” Is No Longer a Bar to Suing
Before the Supreme Court’s 2023 decision, property owners additionally only had a duty to remediate dangerous conditions that were not “open and obvious.” Dangerous conditions were deemed “open and obvious” if a reasonable person on causal inspection would notice it. As an example, the “open and obvious” doctrine allowed a property owner to avoid liability if someone was injured as a result of a visible condition on the property, such as icy surfaces in winter or a pile of wet leaves in the fall. Cases were routinely dismissed by trial courts early in litigation where the defendant owner could show that the alleged dangerous condition that the plaintiff claimed was responsible for their injury was one that was “open and obvious,” – meaning that the plaintiff could have seen the condition and could have taken steps to avoid it.
Over the years, a number of exceptions have developed in the law to the open and obvious doctrine, which made applying it less clear-cut. Eventually, in 2023, the Michigan Supreme Court overturned the open and obvious doctrine. Now, defending premises cases is a bit more challenging.
Courts Now Evaluate the Open and Obvious Nature of a Dangerous Condition As a Fact Question
Under the old open and obvious doctrine, judges could decide whether the doctrine barred the plaintiff’s personal injury claim as a matter of law and not as a question of fact requiring a jury’s input. Now, however, courts and juries will have to consider a range of issues when deciding whether a defendant property owner is liable to a plaintiff injured on the owner’s premises. These include:
- If the owner owed a duty of care to the injured plaintiff, did the owner breach that duty? For example, what kind of efforts did the owner take to make the premises safe for the visitor – to clear the snow, salt or sand the ice, fill the pothole, and other similar actions? Courts will look to see whether the owner took reasonable measures within a reasonable period to reduce the hazard the plaintiff encountered.
- Was the hazard open and obvious? While it’s no longer considered a question that can bring the lawsuit to a close, the issue of whether the hazard was open and obvious is still one that courts will consider when deciding liability. The question now is whether it’s reasonable to expect the average person of ordinary intelligence to have discovered the hazard based on a casual inspection of the premises. And if it was open and obvious, then the court will consider whether the defendant should have anticipated that the condition would harm someone invited on the premises.
Negligence Can Be Apportioned, and a Plaintiff Comparative Fault Must be Considered
In these kinds of cases, it’s possible for both the defendant and the plaintiff to be negligent and for the jury to apportion liability based on the parties’ relative share of the negligence. For example, if the owner did a very poor job of clearing ice and snow from the parking lot, but the remaining ice and snow was easily visible to the plaintiff, the jury might decide that both parties share responsibility for the plaintiff’s injuries and reduce the plaintiff’s recovery accordingly.
The Key Takeaways: More Work, Longer Court Cases
There are two essential things to remember when it comes to premises liability in Michigan.
First, property owners (including tenants or anyone responsible for caring for property) need to be very careful about identifying potentially hazardous conditions and making those conditions safer for visitors. This is particularly important during Michigan’s harsh winter months.
Second, court cases involving injuries to visitors will take longer to resolve than before. This can affect owners directly if they are paying to defend the case and indirectly if their insurance company is doing so.
Cardelli Lanfear Can Help With Your Premises Liability Issues
Whether it’s consulting to evaluate the strategies you use to reduce potential premises liability or defending against claims brought by visitors injured on your site, Cardelli Lanfear attorneys have experience helping clients with premises liability matters all across Michigan. Call us at (248) 544-1100 or use our contact form to get in touch and learn more about how Cardelli Lanfear can help you.
Jason Newman primarily focuses his practice on civil litigation and intellectual property. His civil litigation consists of defending personal injury cases involving claims for automobile negligence (passenger cars, trucks, and motorcycles), premises liability, and product liability; commercial litigation matters involving breach of contract and product defect allegations; and appellate issues regarding all of those topics.
