Michigan’s “Open and Obvious Doctrine” And How It Effects Your Home or Business

Written by Wendy Beever, CIC, ARM

On July 28, 2023, the Michigan Supreme Court overturned 22 years of precedent regarding Michigan’s “Open and Obvious Doctrine”.  Prior to this ruling, property owners could use the “Open and Obvious Doctrine” as a defense to premises liability personal injury claims, when the danger that existed on the property was readily apparent and out in the open.   The most obvious example of these conditions are snow and ice. The majority, in a 5-2 decision, ruled that whether a danger is “Open and Obvious” should be determined by juries, not judges.  Prior to this decision, many slip and fall accidents, involving “open and Obvious” hazards, such as snow and ice, were dismissed at the outset unless open, obvious dangers were “unreasonably dangerous” or “effectively unavoidable”.

This ruling could result in more lawsuits going forward, increasing litigations costs for homeowners and businesses and higher insurance premiums. “I was disappointed that the majority overturned a longstanding common law doctrine that served to impose obligations both on the premises owner as well as on invitees to the premises,” said Mary Massaron, a Bloomfield Hills-based appellate attorney with Plunkett Cooney who filed an amicus brief in the case on behalf of the U.S. Chamber of Commerce. “Historically, while the premises owner or occupier has an obligation to keep its property so that it is not unreasonably unsafe for people who go on it, the premises invitees — those who go on the property — have also in the past had an obligation to protect themselves against open and obvious conditions,” Massaron said. “Now, while the court allowed this to be a question for the jury, what it means is more litigation will likely be filed, cases will be more expensive to defend, and insurance costs are likely to rise.”

As winter will soon be upon us, homeowners and businesses will need to clear ice and snow during or soon after a storm or face possible lawsuits.

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