The Michigan Supreme Court’s landmark rulings in Kandil-Elsayed v. F & E Oil and Pinsky v. Kroger increase slip-and-fall victims’ chances of winning damages. The Court’s opinion corrects years of erroneous application of the “Open and Obvious” (O&O) rule/doctrine and modifies premises liability. This amendment will enable a greater number of slip-and-fall victims to seek compensation for unsafe conditions on another party’s property. Michigan slip and fall lawsuits are complicated, but the Court’s finding is good news for victims. Hire Koussan Law for the best-case outcome. Our lawyers defend and win your case with experience, legal expertise, and strategy.
“OPEN AND OBVIOUS” DOCTRINE?
For nearly two decades, property owners have employed the “open and obvious” defense to evade compensating victims of slip-and-fall accidents. Legally, a hazard was O&O if “an average person of ordinary intelligence would have been able to discover the danger and risk upon casual inspection.” In determining whether a property owner owed others a responsibility to keep them safe, the O&O concept was incorrectly applied. If a hazard was O&O, the property owner had no duty to the injured person, and recovery was precluded.
Two examples:
1. You fill up at a gas station. After checking your wallet/purse, you realize you forgot your credit card and must pay cash inside. While counting your coins, you miss a massive pothole on the way in. Tripping on uneven cement and falling on concrete causes bruises, scrapes, and fractured bones.
2. You’ve just left work and need to buy groceries for dinner. You’re late and rushed. You rush through the front doors and into the ingredient aisle. You may not know that grocery store staff had to close the aisle for cleaning and place a low-hanging cable across it. In your rush, you trip over a low-hanging cord and fall on the grocery store floor, hurting and breaking bones.
Before Kandil-Elsayed v. F & E Oil and Pinsky v. Kroger, gas station and store owners may claim open and obvious risks. In both circumstances, the Court would likely agree with the premises owners that the O&O character of the hazard eliminated their duty to the injured party. This would prevent the injured party from obtaining money unless the hazards were unreasonable or unavoidable.
Unreasonably unsafe conditions have a “uniquely high likelihood of harm or severity if the risk is not avoided.” The Court demonstrated this with a 30-foot parking lot pit. A crater this large would be noticeable, but falling into it may be fatal. Harms that cannot be avoided fall under this exception. Anyone wanting to leave a building with one entrance/exit walkway and ice would have no choice.
How does the court’s ruling assist victims of slip-and-fall accidents?
Recent Court redefinition of the O&O rule/doctrine allows more slip-and-fall victims to collect compensation.
The old interpretation favored property owners over victims. Claims triggered by a victim’s capacity to spot a danger, not the owner’s duty to remove it or warn visitors. There were occasional outliers, but most cases favored the property owner. In Kandil-Elsayed v. F & E Oil and Pinsky v. Kroger, the Michigan Supreme Court invalidated the O&O concept that excused property owners from their duties to persons on their land in two slip-and-fall cases.
The open and obvious theory will no longer be used in Michigan courts to evaluate if a property owner is obliged to others on their land. Instead, the courts will apply the O&O theory to determine whether a landlord failed to fulfill their responsibility to maintain safety and whether it was the victim’s fault. Slip and fall victims are more likely to collect compensation for injuries and other losses because property owners no longer get an automatic pass.
The property owner owes them a duty in the gas station and grocery store cases. They can recover even if the hazard is O&O. The Court would decide whether the property owners owed a responsibility to the person on their land and broke that obligation by failing to anticipate probable harm from the open and obvious hazard.
A competent slip-and-fall lawyer is the best approach to safeguarding your rights and getting compensated because these situations are complicated.
DOES THE NEW LAW AFFECT ICE AND SNOW SLIP-AND-FALL ACCIDENTS?
In the past, the “natural accumulation” requirement made winter slip-and-fall compensation problematic. The word implied that Michiganders should expect snow and ice in winter and take safety precautions when venturing outside. Landlords and property owners might also claim snow and ice were O&O to the typical individual.
Modifying the O&O doctrine makes landlords and property owners more liable for icy slip-and-falls. Instead of automatically releasing property owners from obligation, courts will assess whether they broke the duty to make their premises safe and the victim’s degree of fault.
What if my actions contributed to a slip-and-fall incident?
The new legislative change does not alter Michigan’s “modified comparative negligence” statute, which bases personal injury compensation on the victim’s role in an accident. A fall victim who was distracted by a cell phone or wore high heels in an icy parking lot would be partially guilty. Compensation may be decreased based on the plaintiff’s fault.
If a plaintiff falls while texting, compensation may be established as follows:
- Plaintiff’s attorney negotiates a $100,000 settlement;
- Plaintiff is 30% at fault;
- Payment decreased by 30%, or $30,000
- Plaintiff obtains $70,000 minus legal costs and expenses
Over 50% of accident blame means victims may not receive compensation for non-economic damages such as pain and suffering. This matters since intangible damages generally make up the majority of a settlement.