Michigan's Open And Obvious Doctrine: A Threat To Premises Liability Cases Everywhere

Metro Detroit Slip and Fall Accident Attorney 


Under Michigan law, a premises owner can be held liable in a tort action for personal injuries or damages resulting from dangerous conditions on their property. This is known as a premises liability claim.

While liability in Michigan slip and fall cases largely depends on the legal status of the plaintiff at the time they were injured, a personal injury attorney will also evaluate the specific facts and circumstances surrounding the fall to determine whether there is a viable case. Many of these inquiries will center on whether or not the dangerous condition causing the fall was open and obvious under Michigan law. 

The Open and Obvious Doctrine In Theory

While a premises owner can be held liable for dangerous conditions on their property, he or she is not liable if the dangerous condition was "open and obvious". Under Michigan law, a danger is open and obvious if an average user with ordinary intelligence would have been able to discover the danger upon a casual inspection. Slaughter v Blarney Castle Oil Co281 Mich App 474, 478; 760 NW2d 287 (2008).

In plain English, this means that even if the property contains a dangerous condition which was the cause of plaintiff's fall, the owner will not be held liable if the plaintiff would have or should have discovered the dangerous condition had he or she been paying better attention. 

Further, while a landowner must warn of hidden defects on their property, he or she generally has no duty to warn visitors of dangers that are open and obvious. While there are two exceptions to the open and obvious doctrine (for conditions that are "effectively unavoidable" or ones that pose an "unreasonably high risk of injury") the standard for proving that "special aspects" exist and thus that the open and obvious doctrine does not apply, is very high. 

The Open and Obvious Doctrine In Realty 

If your are reading this you are probably thinking the open and obvious doctrine makes sense: if the injured person should have seen the hazard had they been paying better attention, why should the law hold the landowner liable? In theory this makes sense. After all, the law should not encourage people to encounter known hazards in order to file a personal injury case. 

However, the application of the open and obvious doctrine by Michigan courts has resulted in many meritorious cases being dismissed. For instance, Michigan courts have routinely held that visible snow and ice are open and obvious and do not impose a duty on the property owner to warn of or remove the hazard. Hoffner v Lanctoe, 492 Mich 450, 821 NW2d 88 (2012); Kenny v Kaatz Funeral Home, Inc, 472 Mich 929, 697 NW2d 596 (2005), rev’g and adopting dissent in 264 Mich App 99, 689 NW2d 737 (2004). 

Even "black ice", which by its definition is not open and obvious, is nevertheless treated as so by Michigan courts if it is accompanied by visible "indicia of a hazard". This means that Michigan law will treat black ice as being open and obvious, thus relieving the landowner of liability, if there are accompanying facts that should have put the visitor on notice that dangerous ice exists. This can include seeing others slip and fall, freezing precipitation, slick roads, snow on the ground, and even cold temperatures.

To recap, this means that even if you don't actually see ice, Michigan law says that you should know it may be present by virtue of the fact that it is winter, cold out, snowing, etc. In reality, there is a difference between hypothesizing that a parking lot may contain ice due to the fact that it is the middle of January in Michigan, and knowing that invisible ice exists underneath your shoe with the next step you take. 

In fact, Michigan courts have even held that ice that is covered by snow is open and obvious "because of the high probability that it may be slippery.” Royce v Chatwell Club Apartments, 276 Mich App 389 (2007). 

Furthermore, Michigan courts have also severely limited the plaintiff's ability to argue that although the hazard was open and obvious, it was also "effectively unavoidable" and thus the landowner should still be held liable. For instance, in Hoffner v Lanctoe, 492 Mich 450, 821 NW2d 88 (2012), the Michigan Supreme Court held that ice leading up to the only entrance of a Michigan fitness center was avoidable because the plaintiff was not "absolutely compelled" to confront it. According to the Supreme Court, the plaintiff could have chosen to turn around and gone home. It's hard enough to work up the motivation to get to the gym in the winter, did we need to add the possibility that you won't be able to obtain compensation for your injuries if you fall in the unplowed, unsalted gym parking lot? 

Given the stance taken by the court, it is difficult to imagine a scenario where a person is "absolutely compelled" to confront snow or ice. It seems unlikely your boss will buy the "parking lot is too icy to come to work today" excuse. Furthermore, someone may initially believe that ice and snow is reasonably safe to walk across, only to find out halfway through that the hazard is more dangerous than he or she originally believed. 

The Hofner decision is, in my opinion, unreasonable, particularly considering that snow and ice are an inescapable part of Michigan winters. Should all Michiganders lock themselves in their homes from December through March for fear of that the owners of the businesses they frequent have not met their duty to keep their parking lots and entrances free from dangerous snow and ice? Better yet, should Michigan residents walk through parking lots with their heads down, scouring the pavement for areas of unsalted, transparent ice? The likelihood of getting hit by a car or walking into a door seems high if that is the takeaway from Hofner. Sadly, until the court adopts a new position, or legislators act, this is the law in Michigan.

Contact Metro Detroit Injury Lawyers 

While slip and fall cases, particularly those involving snow and ice, are not dead, Michigan has certainly made it more difficult for injured plaintiffs to obtain compensation as a result of dangerous conditions on land. If you or your loved one has been involved in Michigan slip and fall case or Michigan premises liability case, contact us today for a free consultation and evaluation of your case. Metro Detroit Injury Lawyers will thoroughly analyze the facts and circumstances of your case to determine the applicability of the open and obvious doctrine and their exceptions. 

Metro Detroit Injury Lawyers is a Bloomfield Hills, Michigan law firm practicing personal injury law. Contact us today at 248-430-8929 for a free consultation and evaluation of your case, with no obligation.