The End of Open and Obvious as We Know it: Lugo Overruled

Name: Kandil-Elsayed v F & E Oil, Inc. & Pinksy v Kroger Co. of Mich

Court: Michigan Supreme Court

Issued: July 28, 2023

INTRODUCTION

The Michigan Supreme Court recently issued an Opinion analyzing the Open and Obvious Doctrine set forth in Lugo v Ameritech Corp. and how it is inconsistent with § 343A of the Second Restatement of Torts and Michigan's comparative fault framework. The Court overruled Lugo finding that while the Open and Obvious Doctrine is relevant to breach and comparative fault, it is not relevant to duty. In addition, the Court overruled the special-aspects doctrine shifting the inquiry to whether the landowner should anticipate the harm that results from an open and obvious condition.

The take-away from the Kandil-Elsayed decision is that this departure from Lugo for premises liability will certainly place a much higher burden on property owners to repair and maintain their property while eliminating many of their defenses in the process.

ANALYSIS

The Court reconciled the Lugo Opinion with § 343A of the Second Restatement of Torts concluding that Lugo was wrongly decided in two aspects:

First, the Lugo Court erred by relying on the Open and Obvious Doctrine to determine whether a duty is owed since that analysis runs afoul of Michigan's commitment to comparative fault. Specifically, the Court found that it places the judge in charge of deciding an issue that requires an analysis of the plaintiff's negligence. However, MCL 600.2957 states that "the liability of each person shall be allocated . . . by the trier of fact." This is in direct contravention of MCL 600.2957. Moreover, the plaintiff's own liability functions as an absolute bar to recovery because duty is a threshold requirement that must be met before a case can proceed.

Second, the Court held that Lugo was wrongly decided in announcing the Special-Aspects Doctrine. Relying on § 343A of the Second Restatement of Torts, the Court overruled the Special-Aspects Doctrine stating that the fact-finder should consider whether "the possessor should anticipate the harm despite such . . . obviousness" with respect to whether a duty was breached.

The pre-Lugo 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" was reaffirmed. The Court also held that the three traditional status-based categories—license, invitee, and trespasser remain. The standard for assessing whether a danger is open and obvious remains objective.

In other words, if the plaintiff is able to establish that the land possessor owed the plaintiff a duty, then the next step is to assess whether there was a breach of that duty. With respect to breach, the fact-finder may consider whether the condition was open and obvious and whether the land possessor should have anticipated harm to the invitee. If plaintiff satisfies the elements for breach, causation and harm, then the jury can consider the plaintiff's comparative fault in part with the open and obvious nature of the condition, and the plaintiff's choice to confront by reducing the plaintiff's damages accordingly.

We will continue to monitor new case law interpreting the Open and Obvious Doctrine and the progeny of cases that are sure to follow.