The Michigan Supreme Court has finally released its highly anticipated opinion reconsidering the  “open and obvious doctrine” articulated more than 20 years ago in Lugo v. Ameritech Corp., 464 Mich. 512 (2001). In the split 5-2 opinion in the consolidated case of Kandil-Elsayed v. F&E Oil, Inc., ___ Mich. ___ (2023) and Pinsky v. Kroger Co. of Michigan, ___ Mich. ____ (2023), the Supreme Court overruled Lugo's holding that the open and obvious danger doctrine is relevant to defendant's duty and changed the application of the open and obvious doctrine as we knew it.  While land possessors still owe a “duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land”, if the plaintiff establishes that the land possessor owed plaintiff a duty, “the fact-finder may then consider, among other things, whether the condition was open and obvious and whether, despite its open and obvious nature, the land possessor should have anticipated the harm to the invitee.” If breach, causation and harm are shown, then the jury should consider the plaintiff's comparative fault, which may require “consideration of the open and obvious nature of the hazard and plaintiff's choice to confront it.”

What has changed: The Court has overruled prior cases that have held that the open and obvious nature of a condition should be analyzed as a part of a land possessor's duty. Instead, the Court has found that the open and obvious nature of a danger is relevant to the defendant's breach and the plaintiff's comparative fault.  In shifting the open and obvious danger doctrine to breach, the Court states that it is permitting the jury to conduct a comparative analysis of each party's fault. Additionally, the Court overruled the special-aspects doctrine to the extent that it departed from the anticipation-of-harm standard. Liability is no longer limited to those dangers that present a substantial risk of death, serious injury, or dangers that are effectively unavoidable. Now, when considering “whether a defendant has breached their duty to take reasonable care to protect invitees from an open and obvious danger”, the fact-finder should consider whether the possessor “should anticipate harm from an otherwise open and obvious danger”.

What has stayed the same: The Court has reaffirmed the duty owed to invitees “to exercise reasonable care to protect [them] from an unreasonable risk of harm caused by a dangerous condition of the land”. The Court has also found that the three status-based categories (licensee, trespasser, and invitee) remain the same.

What was not addressed: The Court reserved the question of whether to adopt the Third Restatement's “blanket reasonable-care” standard for another time.

How this will impact premises liability cases: Post Lugo, numerous cases were dismissed on summary disposition due to the open and obvious doctrine. Now, because open and obvious is a question of breach instead of duty, it will be significantly harder for premises possessors to obtain summary disposition in premises liability cases. Lack of notice, however, still remains a valid defense warranting summary disposition in premises liability cases.  By holding several premises liability cases in abeyance pending the decision in Kandil-Elsayed v. F&E Oil, Inc., ___ Mich. ___ (2023) and Pinsky v. Kroger Co. of Michigan, ___ Mich. ____ (2023), it appears that the Supreme Court intends to give retroactive effect to this decision.