Litigation Defenders

Since the seminal decision in Kandil-Elsayed which overruled the holding that Michigan’s open danger doctrine applied to a land possessor’s duty, many premises owners have turned to lack of notice as their next best defense.

A lack of notice defense will exist for a premises owner when the possessor has neither actual nor constructive notice of the dangerous condition at issue. Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 8 (2016).

Actual notice exists if the premises possessor had actual knowledge that the dangerous condition existed, or the premises possessor caused the alleged dangerous condition. Hampton v Waste Mgmt of Michigan, Inc, 236 Mich App 598, 603-04 (1999).

According to the Lowrey decision, constructive notice exists when the alleged condition was of such a character that it would have been found by reasonable inspection, or if the condition was present for long enough that the possessor reasonably should have known about it. The burden is on the plaintiff to produce the evidence of whether the defendant had actual or constructive notice.

Since Kandil-Elsayed, the lower courts and the Michigan Court of Appeals have seen an uptick in the number of “lack of notice” defenses and summary disposition motions. So, how can businesses that open their premises to the public protect themselves?

First, when someone enters your business, they become what is known as a business invitee. An invitee is a person invited onto the business property “for a commercial benefit to the possessor of the land.” Essentially, this is a customer.

When a slip and fall takes place inside a business, the claimant will likely hold the status of an invitee. Therefore, it is imperative to look at any notice the business was given of the alleged condition.

In a recent unpublished appellate court decision, Lynee Karamol v Meijer, Inc, unpublished per curiam opinion of the Michigan Court of Appeals, issued July 18, 2024 (Case No. 22-007366-NO), the appellate court, affirmed the lower court’s decision, granting MCR 2.116(C)(10) summary disposition in favor of the defendant, Meijer.

In the case, the court found the plaintiff failed to establish that the defendant had actual or constructive notice of the condition that allegedly caused the plaintiff’s injury. As the plaintiff was leaving, she slipped on a liquid substance on the floor of the vestibule near the door leading out of the store.

At the plaintiff’s deposition, she testified that she looked down after she fell and saw a stream of milk all the way from the one door to the other. The appellate court reiterated that the burden is on the plaintiff to produce evidence establishing that the defendant had notice of the alleged condition. The court ruled the defendant did not.

To be successful with a lack of notice defense, it is imperative that property owners document reasonable inspections of areas on the premises. This leaves plaintiffs without the ability to establish that the defendant knew or should have known of an alleged hazard. It also prevents the plaintiff from establishing that an alleged hazard was present for an extended period and that the landowner should have discovered it.

While Michigan’s open and obvious doctrine can no longer be used as a complete defense, it can still be used to determine whether the landowner’s duty to the plaintiff was breached. If the landowner was making periodic and reasonable inspections, and the danger was open and obvious, the landowner may have a strong case for summary disposition.