‘Open and Obvious’ Falls, Restoring Focus on ‘Notice’ Defense in Michigan Premises Liability Cases

The Michigan Supreme Court’s recent ruling in Kandil-Elsayed v F & E Oil, Inc, No. 162907, 2023 WL 4845611 (Mich July 28, 2023) effectively dismantled the open and obvious danger defense. For decades prior, the open and obvious doctrine served as a handy litigation off-ramp for premises possessors who could rely on the doctrine as a strong basis for summary disposition.

These recent decisions certainly signal a turning of the tide in Michigan tort law. However, premises possessors should be reassured that several still-standing strategies and defenses serve to keep the scales balanced and the hope for summary disposition alive.

While defendants and defense attorneys alike reassess their arsenals with renewed focus, one particular defense remains tried and true: notice.

What is Notice?

In Michigan, courts have long recognized that a premises possessor is not the absolute insurer of business invitees. See Kroll v Katz, 374 Mich 364 (1965). Business invitees are individuals who enter upon the property of another for a business purpose (i.e.,  plaintiffs who enter a retailer, restaurant, hotel, casino, or other type of business establishment to purchase goods or services). See Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 597 (2000).

Invitees are given the highest level of protection under premises liability law, and as such, premises possessors have a duty of care to warn invitees of any known dangers and make the premises safe by inspecting the premises, making any necessary repairs, or warning of any discovered hazards.

However, to establish liability, a plaintiff invitee must establish (1) the premises possessor knew about (had notice of) a dangerous condition on its premises, and (2) the premises possessor had notice of the unreasonable risk of harm caused by the dangerous condition. Bertrand v Alan Ford, Inc, 449 Mich 606, 609 (1995).

If a plaintiff cannot demonstrate those two things, the lawsuit is likely ripe for summary disposition.

How is Notice Established?

As with all things in the litigation arena, notice comes with nuance. How exactly can an injured party reasonably go about proving that a business with several employees, managers, cameras, policies and the works, was on “notice” of the precise thing that caused a slip, trip or fall?

Michigan courts have made clear that the burden of proof belongs to the plaintiff. See Clark v Kmart Corp, 465 Mich 416, 419 (2001). That means it remains up to the plaintiff to prove that the premises possessor (1) knew of the dangerous condition or (2) the condition was of such a character or existed for such a duration that it should have known of it.

At this point, the analysis hits another fork in the road. There are two key kinds of notice that Michigan courts consider: actual notice and constructive notice.

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, 603-604 (1999).

On the other hand, constructive notice is presumed when the condition causing the injury was of such a character that it would be found by reasonable inspection, or if the condition was present for a long enough duration that the premises possessor reasonably should have known about it. Lowery v LMPS & LMPJ, Inc, 500 Mich 1, 10 (2016).

Again, to trigger liability under a theory of constructive notice, the plaintiff continues to carry the burden of establishing proof of the premises possessor’s knowledge and opportunity. Conversely, a premises possessor need only show that the plaintiff did not and could not present sufficient evidence to prove constructive notice.

In this regard, while constructive notice can be supported by reasonable inferences, any such inferences must go beyond mere conjecture. Whitmore v Sears, Roebuck & Co, 89 Mich App 3, 9 (1979). Put another way, reliance on the mere possibility that a premises possessor could have had knowledge of a hazardous condition and opportunity to cure it is generally insufficient.

For now, notice remains a dispositive defense for premises liability defendants when plaintiffs cannot offer evidence of notice.

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