In law school, my torts professor, Pamela Wilkins, drilled into our brains the elements of a tort: duty, breach, causation, and harm. These four elements are what all attorneys practicing in negligence litigation think about day in and day out. So where does the open and obvious doctrine come in and how does it relate to these elements?

This has been a question Michigan jurisprudence has been trying to answer for nearly a century. While the open and obvious nature of a hazard was once a complete bar to recovery, it has evolved over time. The question that must be answered is whether the open and obvious doctrine related to breach and is a question of fact for a jury to decide or is it instead related to a landowner’s duty and, therefore, a question of law for the judge to decide?

This article briefly explores that history and examines how the Michigan Supreme Court reached its 5-2 decision in last year’s combined cases of Kandil-Elsayed v. F&E Oil, Inc and Pinsky v. Kroger Co.¹

THE FIRST RESTATEMENT OF TORTS

In the years prior to 1965, Michigan was still developing its body of case law related to premises liability. Michigan courts treated the Restatement of Torts as persuasive² and, at times, even adopted parts of it into the common law. §343 of the First Restatement of Torts stated that a land possessor was “subject to liability for bodily harm caused to business visitors” only with respect to “condition[s] ... involving an unreasonable risk to them[.]”³ But where the landowner had “reason to believe [the business visitor would] discover the condition or realize the risk involved therein,” they were categorically not subject to liability.⁴ Whether an unsafe condition encountered by a plaintiff was considered to be open and obvious at that time was relevant to a court’s determination of whether the plaintiff was contributorily negligent and contributory negligence was, as a matter of law, a complete bar to plaintiff’s recovery.⁵

THE SECOND RESTATEMENT OF TORTS

In 1965, the Second Restatement of Torts was published. §343 states:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.⁶

And §343A states in relevant part:

(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.⁷

Under the Second Restatement, it remained unclear which portions of the analysis fell under “duty” and which fell under “breach” and, therefore, which portions should be decided by a judge and which should be decided by a jury.

MCL 600.2957-600.2959

In 1979, Michigan eliminated the principle of contributory negligence and replaced it with the comparative fault doctrine as codified by the Michigan Legislature in MCL 600.2957-600.2959. While the new law made clear that comparative fault was an issue of fact to be determined by a jury, the case law that followed continued to muddle which components of the open and obvious danger doctrine pertained to duty and which to breach.

THE LUGO ERA

Michigan courts in 2001 addressed the unclear open and obvious danger doctrine head on in Lugo v. Ameritech Corp, Inc.,⁸ placing it directly within the element of duty — a question of law for the judge to decide.

Lugo involved an individual who was walking into a business through its parking lot when she stepped into a pothole, causing her to fall and be injured. The trial court granted summary disposition to the business owner defendant, holding that the plaintiff had an inherent duty to pay attention to where she was walking and thus barring her from recovery.⁹

In a split decision, the Michigan Court of Appeals reversed the lower court’s ruling, holding that in Michigan, which was now a comparative negligence state, the plaintiff’s negligence can only reduce the amount of recovery and not eliminate the defendant’s liability. The appeals court also determined that the open and obvious rule did not apply because there was a genuine issue of material fact regarding whether the defendant should have expected that an individual traversing through a busy parking lot might be distracted by the need to avoid a moving vehicle or might even reasonably step into the pothole to avoid traffic.¹⁰

The case was then taken up by the Michigan Supreme Court, which focused its analysis on the extent of the open and obvious doctrine in premises liability cases. The Court started by discussing duties premises owners owed to invitees, stating that “a premises possessor owes a duty to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land.”¹¹ The Court went on to explain this duty generally does not extend to dangers that are open and obvious, stating that “[w]here the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, an invitor owes no duty to protect or warn the invitee unless he should anticipate the harm despite knowledge of it on behalf of the invitee.”¹²

The Lugo Court went on to discuss that there may be special aspects that make the risk of harm unreasonable and, accordingly, a defendant may be found to have breached the duty to keep the premises reasonably safe by failing to remedy the dangerous condition. An example of this is a commercial building with only one exit for the general public but the floor leading to that exit is covered with standing water. While the condition is open and obvious, a customer wishing to exit the store must leave through the water, rendering the open and obvious condition effectively unavoidable. Additionally, something like an unguarded 30-foot hole in a parking lot may present an unreasonably unsafe situation as the substantial likelihood of death or severe injury would be present.

Ultimately, the Lugo Court held that typical open and obvious dangers do not have these special aspects associated with them. A pothole for example, would be a condition that is open and obvious and, thus, cannot form the basis of liability against a premises owner.

The Lugo decision resulted in the open and obvious doctrine being analyzed under the defendant’s duty (an issue of law to be decided by a judge), whereas it had previously been unclear or related to the plaintiff’s comparative negligence or breach (issues of fact for a jury to decide).

KANDIL-ELSAYED AND PINSKY

Lugo was reversed in 2023 by the Michigan Supreme Court in its decision in the combined cases of Kandil-Elsayed v. F&E Oil, Inc. and Pinsky v. Kroger Co.¹³ Under the new analysis, whether a condition is open and obvious will again be analyzed under comparative negligence and breach rather than duty, which are questions of fact for a jury to decide. Kandil-Elsayed, an individual walked across a parking lot covered in snow and ice to pay for gas.¹⁴ The plaintiff fell and injured herself while walking and argued that the snow-and-ice-covered path into the store was effectively unavoidable, so there was a special aspect associated with the open and obvious nature of the hazard. The trial court ruled the hazard was open and obvious and there were no special aspects and, thus, summary disposition was granted. The Court of Appeals affirmed. In Pinsky, the plaintiff was walking into a store when she tripped and fell over a small, thin cable an employee had used to indicate a lane closure.¹⁵ It is unclear at what height the cable was placed and the trial court, holding that questions of fact remained, refused to grant summary disposition. The defendant appealed, and the Court of Appeals reversed the trial court decision. Both plaintiffs appealed to the Michigan Supreme Court.

In reaching its majority opinion, the Kandil-Elsayed/Pinsky Court went through the history of the open and obvious doctrine in detail, starting with the First Restatement of Torts and continuing through to the modern Third Restatement of Torts. In doing so, the Court concluded that Lugo had been wrongly decided for two reasons. First, it ruled that the Lugo Court erred by relating the open and obvious doctrine’s exceptions to duty:

While Lugo certainly provided clarity, it failed to grapple with how situating the open and obvious danger doctrine and its exceptions in duty — rather than breach — would operate in practice. In particular, it failed to account for the inherent tension with Michigan’s clear policy of comparative fault. Duty is a threshold question of law for the court to decide before a case can get to a jury.¹⁶

The Court went on to note that “Michigan is a comparative-fault jurisdiction, meaning that it is the policy of our state that when a plaintiff is at fault, it does not bar recovery, but rather reduces the amount of damages they can recover by their percentage of fault.”¹⁷

Second, the Court concluded that Lugo’s special aspects test was wrongly decided, laying out the numerous confusing and widely varying decisions that had come out since that test had been established. The Court wrote:

We conclude that Lugo was wrongly decided and must be overruled. We hold, in accordance with decades of precedent prior to Lugo, that a land possessor owes a duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land. Lugo’s holding that the open and obvious danger doctrine is relevant to the defendant’s duty is overruled. While the open and obvious nature of a condition, assessed by asking whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon causal inspection, remains relevant, it is a question of breach and comparative fault, not duty. Lastly, the special-aspects doctrine is overruled to the extent it is inconsistent with the Second Restatement’s anticipation standard. We hold that instead, when assessing whether a defendant has breached their duty to take reasonable care to protect invitees from an open and obvious danger, courts should ask whether the possessor should anticipate the harm.¹⁸

WHAT COMES NEXT

Going forward, Michigan’s premises liability cases will likely reach juries much more often than they have in the past 22 years. Now that the open and obvious nature of hazards will be analyzed under the element of breach and comparative negligence rather than duty, it is likely that far fewer premises liability cases will be decided by dispositive motions. However, this does not mean that the plaintiff’s comparative fault will not come into question. Should a premises liability case come to a jury that decides that the defendant did in fact breach its duty, it can still take into account the open and obvious nature of the hazard and the plaintiff’s decision to traverse it anyway, resulting in a lower, nominal, or even no award for the plaintiff.