Litigation Defenders

With the weather warming up, it seems like the perfect time to forget about snow for a long time. For businesses and landowners, it’s quite the opposite: now is the best time to run stock and assess how your winter went.

It’s better to review your winter maintenance contracts and practices now while the memory is still fresh in your mind. Property owners should review and understand 1) where any easements are located; 2) where the common areas are located and 3) whether snow removal occurs outside of common areas.

Premises Liability Basics

To successfully establish a premises liability claim in Michigan, a plaintiff must prove:

1. Defendant owed plaintiff a duty.
2. Defendant breached that duty.
3. The plaintiff suffered damages.
4. The defendant’s breach was the cause of the duty.

In premises liability cases, a plaintiff can only recover from a defendant for injuries caused by conditions of the land if the defendant had possession and control of the land.

Landowner Duties

Duty owed by landowner to a visitor is determined by the visitor’s status as either licensee,  invitee or trespasser

• Invitee – owed the highest duty of care
  • A person invited onto a property, either expressly or impliedly, for a commercial purpose that benefits the property owner (for example, customers, clients, business visitors).
• Licensee – no duty of inspection or affirmative care to make the premises safe for a licensee’s visit.
  • Someone invited to the property for any purpose other than business.
• Trespasser – only owed a duty to refrain from willfully or wantonly causing harm to them.

Know Your Easements

In Michigan, it is the easement owner, not the owner of the servient estate, who has the duty to maintain the easement in a safe condition. The servient estate is land that allows another to use a portion of their land. Michigan courts have held for government easements, specifically, adjacent landowners do not retain possessory rights over the right-of-way.

Why does this matter? If there are public sidewalks on your property, the government has “the duty to maintain the easement in a safe condition so as to prevent injuries to third parties.”

Know Your Common Areas

Just because you don’t have public sidewalks on your property does not mean you should start to think of warmer weather. Common areas are a common concern with winter slip-and-fall cases.

Generally, MCL 554.139 provides that a lessor or licensor of a residential premises, is required  to ensure that the common areas are fit for the use intended by the parties and to keep the common areas in reasonable repair. Common areas are those over which the lessor retains control and are shared by two or more, or even all, of the tenants.

A landlord may be held liable for an unreasonable risk of harm caused by a dangerous condition in the areas of common use retained in his control such as lobbies, hallways, stairways and elevators. Allison v AEW Capital Mgt, LLP, 481 Mich 419; 751 NW2d 8 (2008).

The duty over a common area is not absolute. Landlords are generally required to take reasonable steps to prevent injury. Gabrielson v Woods Condo Ass'n, Inc, 349 Mich App 478, 492; 28 NW3d 747 (2024). Once a court establishes that there was a duty owed, it is a question for the jury whether the landowner breached that duty.

Know With Certainty Where Snow Removal Occurs

You may think that doing more can be better than doing nothing. With snow removal, this isn’t always the case.

In Michigan, a landowner who starts to remove snow from a sidewalk is required to do so in a manner that does not create an additional hazard beyond the natural hazard of the free fall of the snow and ice. Weider v Goldsmith, 353 Mich 339, 343; 91 NW2d 283 (1958).

This comes into play when a landowner has no duty to alter a condition in a public right-of-way, such as a public sidewalk subject to a government easement, but makes an attempt to alter a condition. In other words, a landowner who removes ice and snow from a public sidewalk has a duty to take proper care.

If you hire a contractor to remove ice and snow for a public sidewalk, you or the contractor may be creating a new duty of care for that sidewalk. Duty does not automatically attach from occasionally maintaining sidewalks. Plaintiffs must still provide evidence that the sidewalk, for example, was shoveled or salted before they slipped. Peterson v Fenton Oaks, LLC, unpublished opinion of the Court of Appeals, issued Jan. 15, 2026 (Docket No. 373094), 2026 WL 121018, p *2.

For these reasons, it is important you know whether you have public sidewalks as part of your property and whether you or a contractor are required to remove ice or snow on them.

Takeaway

It may be tempting to forget about snow and ice this time of year. However, now is the time to do some risk management spring cleaning before you forget about snow and ice until next winter. Remember: being proactive and doing review of your property details and snow removal contracts may save you a headache down the road.