Scales of Justice

Michigan’s Open and Obvious Doctrine Overturned


A Detailed Guide for Businesses and Insurance Considerations

The Michigan Supreme Court’s landmark decision to eliminate the Open and Obvious Doctrine represents a fundamental shift in premises liability law. Businesses across the state must now adapt their risk management strategies and re-evaluate their insurance coverage in light of this pivotal ruling. This guide offers a comprehensive overview of the change, its implications, and best practices for business owners to protect themselves.

The Overturning of the Open and Obvious Doctrine

For over two decades, the Open and Obvious Doctrine served as a crucial defense for business owners in premises liability cases. It asserted that if a hazard was considered “open and obvious,” the owner had no obligation to warn visitors about it or take measures to mitigate the risk. The injured party was assumed to bear responsibility for their own safety. However, the Supreme Court’s recent ruling revokes this defense, placing a greater emphasis on the business owner’s duty of care.

Understanding the Implications for Michigan Businesses

Heightened Duty of Care: Business owners are now responsible for identifying and addressing potential hazards, even those that may seem obvious to a visitor. This includes taking proactive measures to either eliminate the danger or provide clear warnings.

Comparative Negligence Framework: Premises liability cases will now be evaluated under a comparative negligence model. This means that courts will assess the actions (or lack thereof) of both the business owner and the injured party to determine fault and allocate liability accordingly.

Potential for Increased Litigation: The removal of the Open and Obvious Doctrine defense could lead to a rise in premises liability claims, as injured parties may have a stronger case even if the hazard was seemingly apparent.

A Look Back: The History of the Doctrine and Its Criticism

The Open and Obvious Doctrine originated with the 2001 Michigan Supreme Court case Lugo v. Ameritech Corp. The doctrine aimed to strike a balance between a business owner’s responsibilities and a visitor’s personal accountability. This doctrine initially sought to define the obligations of property owners by asserting that easily detectable dangers need not be highlighted or mitigated, as the obvious visibility of the hazard provided sufficient warning to visitors against potential harm.

The Legal Challenges and Conflicts Preceding the Overturn of the Open and Obvious Doctrine

However, the inflexibility of the “open and obvious” qualifier often met with criticism for failing to consider the complexity of the situation, particularly in its inflexibility concerning “special aspects”—situations where the danger posed a high risk of severe harm or made avoidance difficult. This legal disconnect spurred contention and laid the groundwork for the eventual reconsideration by the Michigan Supreme Court.

Leading the charge to strip away the longstanding doctrine were pivotal cases such as Kandil-Elsayed v. F & E Oil, Inc., and Pinsky v. Kroger Co, which exposed the shortcomings of the “open and obvious” standard. Here, the Michigan Supreme Court recognized the doctrine was incompatible with the comparative-negligence principle and there was a need for a more holistic approach in evaluating responsibility.

Adapting Your Business: Proactive Steps to Mitigate Risk

Comprehensive Risk Assessment: Conduct a meticulous inspection of your premises, both indoors and outdoors. Identify potential hazards, including tripping hazards, slippery surfaces, inadequate lighting, and any other conditions that could cause injury.

Implement Safety Measures: Take action to correct hazards wherever possible. This might involve repairs, installation of warning signs, improved lighting, or changes to the layout of your premises

Documentation and Record Keeping: Maintain detailed records of inspections, safety measures, and any incidents that occur. This documentation will be crucial if you face a liability claim.

Employee Training: Educate staff on identifying potential hazards, reporting procedures, and safety protocols.

Insurance Considerations: Protecting Your Business

Review Your Coverage: Work closely with a knowledgeable insurance agent to conduct an in-depth assessment of your premises liability coverage. Consider increasing your policy limits and ensure that your policy aligns with the heightened legal expectations in Michigan.

Anticipate Premium Changes: Insurance companies will likely adjust premiums to reflect the increased risk for businesses, in light of the Open and Obvious Doctrine decision.

Stay Informed: Consult with your agent and legal counsel to track developments in this area of law.

FAQs for Business Owners

Q. What about hazards beyond my property line (sidewalks, etc.)?

A. You may still have some responsibility for hazards immediately adjacent to your business. Consult with an attorney for specific guidance.

Q: Should I expect my business insurance premiums to change?

A: It’s likely. Insurance companies will adjust pricing to reflect the increased potential for claims now that the Open and Obvious Doctrine is no longer a defense. Consult with your commercial insurance agent for specific guidance on your policy.

Q. Does this ruling impact slip-and-fall cases only?

A. No, it applies to all types of premises liability claims, including injuries from defective equipment, inadequate security, etc.

Q: In practical terms, how does this ruling affect my business’s liability?

A: This decision increases your business’s duty of care. You can no longer assume that “obvious” hazards absolve you of responsibility. You must proactively identify and address potential risks to protect visitors on your premises.

Q: Should I expect my business insurance premiums to change?

A: It’s likely. Insurance companies will adjust pricing to reflect the increased potential for claims now that the Open and Obvious Doctrine is no longer a defense. Consult with your commercial insurance agent for specific guidance on your policy.

Q: My business is small and my property seems safe. Do I really need to worry about this?

A: Yes. The change in law applies to businesses of all sizes and across all industries. Even a seemingly minor hazard could lead to a costly claim if someone is injured. Proactive risk management and appropriate insurance coverage are essential protections.

Proactive Protection and Prepared Response

This shift in Michigan law underscores the vital importance of proactive risk management and comprehensive insurance protection. By taking action now and seeking expert advice, you can position your business to withstand challenges and create a safer environment for your customers and employees.

Disclaimer: This guide is intended for informational purposes only and does not constitute legal advice. It’s essential to consult with an attorney and your insurance provider for guidance tailored to your specific circumstances.

Chris Beardslee

Chris Beardslee's Bio

Chris Beardslee is a 2003 graduate of Michigan State University, with a Bachelor’s degree in Finance. Having worked as an account executive since graduating, Chris has a proven track record of dedication to his customers and commitment to customer service. Chris takes great pride in working with business owners to develop a strategic plan that will allow them to achieve their risk management objectives.