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Where Michigan’s Open and Obvious Rule Went After 2023
The obviousness of a hazard no longer decides whether a Michigan property owner owed a duty to the person hurt by it. That question moved to two later elements of a negligence case, and the practical consequence is that a case which once ended on a motion now usually reaches a factfinder. The exposure did not disappear, though. It relocated.
The Michigan Supreme Court made the change in Kandil-Elsayed v F & E Oil, Inc., decided July 28, 2023 together with Pinsky v Kroger Co of Michigan. 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, and the open and obvious nature of a condition is now analyzed as part of breach and comparative fault rather than duty.
What the Court Actually Overruled
The decision overruled Lugo v Ameritech Corp in two identified respects, and the distinction between them matters when reading older material.
The first is the one usually described. Lugo made the open and obvious danger doctrine part of a land possessor’s duty, and the Court overruled that, holding instead that obviousness is relevant to breach and to the parties’ comparative fault.
The second is stated more narrowly than it is often repeated. The Court overruled the special-aspects doctrine, under which a possessor could be liable for an open and obvious condition only where the invitee produced evidence of special aspects such as a condition being effectively unavoidable or presenting a substantial risk of death or severe injury. The syllabus records that it was overruled to the extent it was inconsistent with the standard in § 343A of the Second Restatement of Torts, which asks whether the land possessor should have anticipated the harm.
Both cases arrived the same way, which is part of why they were heard together. Kandil-Elsayed slipped and fell on snow and ice at a gas station in a Wayne Circuit Court case. Renee Pinsky tripped over a cable strung from a checkout counter to a display basket in Washtenaw Circuit Court. In each, the defendant moved for summary disposition under MCR 2.116(C)(10) on the ground that the hazard was open and obvious with no special aspects, so no duty was owed.
The Court concluded that each defendant did owe the injured plaintiff a duty of care, and that genuine issues of material fact remained. Neither case was decided on the merits. Both were returned to be litigated under the framework the decision announced, which is what a shift from duty to breach produces in practice.
The Standard That Replaced Special Aspects
The replacement is an anticipation-of-harm test taken from the Second Restatement. Where a land possessor should anticipate the harm that results from an open and obvious condition, despite its obviousness, the possessor is not relieved of the duty of reasonable care.
That standard is broader than the two illustrations Lugo had offered. A hazard need not be effectively unavoidable or life-threatening for the duty to survive. It needs to be one whose harm a reasonable possessor should have anticipated, which is a question about foreseeability in the ordinary sense rather than a narrow category.
The Court also noted that the Third Restatement has largely eliminated status-based categories in favor of one general duty of reasonable care, and declined to follow it. The Second Restatement approach remains the governing approach in Michigan, so the invitee, licensee, and trespasser distinctions continue to apply. Our Michigan premises liability page sets out how those categories change what a property owner owes.
Obviousness Now Routes Into Comparative Fault
Moving obviousness out of duty did not make it harmless to a claim. MCL 600.2959 requires a court to reduce damages by the injured person’s percentage of comparative fault. Where that percentage is greater than the aggregate fault of everyone else, whether or not they are parties, economic damages are reduced accordingly and noneconomic damages are not awarded at all.
A hazard that is genuinely obvious is evidence that the person who encountered it bore some responsibility for doing so. Under the old rule that observation ended the case at the duty stage. Under the current one it becomes an argument for allocating a majority of fault to the plaintiff, which reaches the same result for pain and suffering by a different route.
What changed is who decides and when. A jury now weighs obviousness alongside everything else, rather than a judge treating it as dispositive on the papers, and that shift is worth something real. It is not the same as obviousness ceasing to matter.
What This Means for an Older Slip and Fall Page or Letter
Material written before July 2023 that describes special aspects as the only path around an open and obvious hazard is describing law that no longer governs. So is an insurer’s denial letter built on that framework, and those letters still circulate.
The reverse error is now common too. A claim is not strong merely because Lugo was overruled, since breach, causation, damages, and the fault allocation all remain to be proved. Both readings overstate what one decision did, in opposite directions. Our page on slip and fall accidents in Michigan covers what proof a premises case still needs.
A denial letter resting on special aspects is applying a rule the Supreme Court retired in 2023. Those letters are worth a second read. Call our office at (800) 525-6386 and we will walk through it with you.
Reassessing a Fall Claim Under the Current Rule
The framework changed recently enough that older guidance is still in circulation and still persuading people not to pursue claims. At Neumann Law Group, we handle Michigan personal injury claims for people hurt on other people’s property throughout the state, including Grand Traverse County, Kent County, and Wayne County. Call us at (800) 525-6386 or contact our office to arrange a consultation.