The Michigan Supreme Court has recently decided a case involving the “Open and Obvious” defense to a slip and fall or trip and fall case (Kandil-Elsayed v F & E Oil, Inc).  This decision is favorable to you or your friend or family member who has been injured as a result of a slip and fall or trip and fall caused by someone else’s negligence.

If you were injured because of a slip, trip, fall, or some other hazard on the premises you were on, you may be entitled to bring suit against the possessor of the property for your injuries. Slip and fall cases are based in tort law. Because of this, you’ll be required to prove the general elements of a negligence claim. Proving liability or negligence can become complicated quickly, so it’s important to consult with a slip-and-fall accident lawyer as soon after your accident as possible.

Elements for Establishing Negligence in a Premises Liability Claim

There are four basic elements that you must prove in establishing a premises liability claim:

1.     That the Defendant owed you a legal duty;

2.     That the Defendant breached that duty;

3.     That Defendant’s breach of his or her legal duty was a proximate cause of your injuries; and

4.     That you suffered damages as a result of the Defendant’s breach of the legal duty.

Open and Obvious – Another Element in Slip and Fall Cases

On July 28, 2023, the Michigan Supreme Court issued a significant ruling in Kandil-Elsayed v F & E Oil, Inc. and Pinsky v Kroger Co. of Mich. that impacts slip and fall cases. The new ruling overrules the previous legal precedent set by Lugo v Ameritech Corp. Inc. The central change is that the “open and obvious” defense, which often previously served as a complete roadblock to any sort of recovery in premises liability cases, will no longer have the same absolute effect.

The recent Michigan Supreme Court decision brought about a significant change, holding that the open and obvious rule no longer applies to the duty element. In other words, a judge can no longer decide that a condition was open and obvious, leading to an automatic dismissal of the case. Instead, the court acknowledged that the open and obvious nature of a condition is something for a jury to evaluate when determining a breach of duty (also known as liability).

The new ruling maintains that property owners still have a duty to exercise reasonable care to protect visitors from dangerous conditions on their premises. However, the determination of whether a defect is open and obvious will no longer be a factor in assessing the defendant’s duty. Instead, the focus will be on whether the defendant breached their duty of reasonable care.

The ruling also retains the concept of what Michigan law calls comparative fault. This means that both parties involved in an incident can be deemed partially responsible based on their respective levels of carelessness when the injury occurred. In Michigan, juries assess the percentage of fault attributed to the plaintiff.

These are factual-driven slip and fall cases. It’s extremely important that you contact a Michigan personal injury attorney. Our personal injury law firm is capable of handling these slip and fall claims for you. You are entitled to be paid, even if the insurance company tells you it’s Open and Obvious. So give us a call, Thomas, Garvey & McKenna, PLLC at 586-779-7814. Our personal injury law firm is located in St. Clair Shores, Michigan.