Civil Law

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Areas of Practice

Slip & Fall

“Open and obvious” is a legal term of art applicable to slip and falls that has evolved from the Michigan Supreme Court decisions of the last fifty years. The evolution of the open and obvious doctrine by the Michigan Supreme Court has evolved to a point where it has greatly reduced the number of successful slip and fall cases. Currently, the open and obvious doctrine can be--and frequently is--an absolute defense to slip and fall/premises liability cases.

In this article, we will explore the impact of open and obvious on slip and fall/premises liability litigation.

Duty: Any slip and fall/premises liability case requires the landowner/possessor of the land to owe a duty, or obligation, to protect the injured person, commonly known as an “invitee”, from a dangerous condition on the property. The Michigan Supreme Court long held to the notion that a landowner “owes a duty” of “reasonable care to protect” invitees on the property from “unreasonable risks of harm caused by a dangerous condition on the land”. Bertrand v Alan Ford, Inc, 449 Mich. 606, 609; 537 N.W.2d 185 (1995).

Open and Obvious: The general principle of the open and obvious doctrine was an exception to the rule that landowners/possessors of land have a duty to protect invitees from dangerous conditions on their property. Prior to 2001, the Michigan Supreme Court applied the open and obvious doctrine to negate the duty of the landowner/possessor to cases where the danger was “…so obvious that the invitee might reasonably be expected to discover them”. Riddle v. McLouth Steel Products Corp, 440 Mich. 85, 96; 485 N.W.2d 676 (1992). Under the Michigan Supreme Court’s historically more restrictive standards for evaluating open and obvious conditions, most victims of slip and falls were able to establish a duty on the part of the landowner/possessor being sued, which made a favorable decision possible.

In 2001, the Michigan Supreme Court moved away from the idea the open and obvious doctrine was a limited exception to the general rule that a landowner/possessor owed a duty to protect invitees on their property from dangerous conditions. The Michigan Supreme Court in the case of Lugo v. Ameritech Corp., 464 Mich. 512, 517, 629 N.W.2d 384 (2001), announced that “…a premises possessor [landowner] is not required to protect an invitee from open and obvious dangers…” in the absence of “special aspects” of the relevant condition. The Michigan Supreme Court elevated the open and obvious limited exception to the landowner/possessor’s duty to an integral part of the slip and fall victim’s case in chief. In the absence of “special aspects” of a dangerous condition, a slip and fall victim would be barred from a personal injury recovery under the new and broader open and obvious doctrine.

The Michigan Supreme Court’s landmark decision in Lugo v. Ameritech Corp. has changed the course of personal injury litigation ever since. Now, slip and fall victims are tasked with showing how a dangerous condition has “special aspects” to avoid the bar of recovery under the open and obvious doctrine.

Special Aspects: To avoid the strict application of the open and obvious doctrine, the victim of a slip and fall most demonstrate “special aspects” of the condition causing his or her injury. This challenge of demonstrating “special aspects” can, and frequently does, prove to be impossible for those injured by a slip and fall.

The Court of Appeals has defined “special aspects” of the “open and obvious danger doctrine as those that give rise to a uniquely high likelihood of harm or severity of harm if the risk is not avoided.” Corey v. Davenport College of Bus., 251 Mich. App. 1, 4, 649 N.W.2d 392 (2002). The Court of Appeals cited two factual examples of what might constitute a special aspect of a dangerous condition that would not bar a recovery because of the open and obvious doctrine. The first was a “thirty foot deep pit” in the middle of a parking lot. The second was standing water at the exit of a commercial building with no other alternative route available. Id.

The Court of Appeals has said that a landowner/possessor can be liable to a slip and fall victim even when an open and obvious danger exits if the “special aspects” of the condition creates an unreasonable risk. Yet, the Court of Appeals has been all over the map in deciding what is, or is not, a special aspect sufficient to stop the application of the open and obvious doctrine. For example, ice on a sidewalk or a pothole in a road have no special aspects that prohibit the application of the open and obvious doctrine. Victims of slip and fall on an icy sidewalk or who trip in a pothole likely cannot demonstrate a special aspect of these dangerous conditions sufficient to allow for them to successfully sue the landowner/possessor and avoid the open and obvious doctrine.

Thus, the salient question to every slip and fall lawsuit is whether evidence exists that the trier of fact—usually the jury—could find that a special aspect exists making the dangerous condition unreasonable. If the defect in the dangerous condition is “ordinary”, such as ice on a sidewalk or a pothole in a street, then there will generally be no recovery. However, if the victim of the slip and fall can provide evidence of the special aspect of the danger, such as an unreasonable danger or unavoidable danger, then application of the open and obvious doctrine would not bar recovery.

How Should You Proceed? If you have suffered a slip and fall injury by now you may be wondering how you can proceed against the landowner/possessor that failed to protect you from a dangerous condition? Like many things in the law--facts matter. The law relies on facts to apply most, if not all, legal doctrines. The same is true of the open and obvious doctrine and whether you can prove special aspects of the condition causing your injury. If you have been injured by a dangerous condition present on a piece of real property, a home, a building, or in a business, then you need to speak to a qualified attorney.

If you have been injured in a slip and fall, then contact Arnold E. Reed & Associates, P.C., to find out how the open and obvious may, or may not, affect your ability to obtain compensation for your injuries.