Michigan Policy Shift as to Slip and Falls

The Michigan Supreme Court overturned a 2001 precedent that had all but ended most slip and fall cases in Michigan before they began. In July 2023 in a 5 to 2 Opinion authored by Chief Justice Elizabeth Clement, the majority of the Michigan Supreme Court introduced a new framework for premises liability that puts the decision of whether a defendant owes a duty to ensure a space is reasonably well kept, and a plaintiff’s comparative fault in avoiding that danger, to a jury. The majority concluded that a practice established by a 2001 case Lugo v. Ameritech Corp. to put the “open and obvious danger” doctrine, and any exceptions to it, in the “duty analysis” runs afoul of Michigan’s law and commitment to be a comparative fault jurisdiction.

The prior case law would often leave injured slip and fall plaintiffs with no recovery as soon as a court, rather than a jury, decided no duty was owed. The Lugo decision was overruled to make the open and obvious danger doctrine a part of a landowners duty. In overturning that decision, the Michigan Supreme Court stated that a land possessor should “anticipate” harm that comes from an open and obvious condition. Despite its obviousness, the owner is not relieved of the duty of reasonable care of the property. This is a change from putting the onus on a plaintiff, who under the Lugo decision, was bound by their own knowledge to anticipate a danger. The prior law held that a property owner does not have a duty to warn about an open and obvious condition (think large pot hole or winter ice) unless it is found to have certain special aspects such as being “unreasonably dangerous” or “effectively unavoidable”. The open and obvious inquiry was, until July of 2023, looked at under the “duty analysis”, which has courts looking at the plaintiff’s actions rather than a defendant’s duty to take reasonable care.

The opposite side of the argument is that the Michigan Supreme Court has now greatly expanded liability, which could lead to more litigation and destabalize the law.

Given the previous law in Michigan regarding slip and falls, most such cases were not taken by plaintiff attorneys. Although Michigan attorneys will be more likely to take a slip and fall case, it should be noted that there will be attorneys who have practiced in Michigan for decades who do not have much, if any, experience litigating slip and fall cases, whether on the plaintiff or defense side. Here at May Oberfell Lorber, however, several of our attorneys are licensed in both Indiana and Michigan and have been practicing premises liability (slip and fall cases) in Indiana without interruption, and are well-versed in the handling of such negligence cases, no matter the state.

This article is for information purposes only and is not intended to constitute legal advice.