Open and Obvious Lives? Dismissal of Premises Liability Suit Affirmed Post-Kandil-Elsayed

Earlier this year, in Kandil-Elsayed v F & E Oil, Inc, ___ Mich ___ (2023) (Docket No. 162907), the Michigan Supreme Court overruled Lugo v Ameritech Corp, Inc, 464 Mich 512 (2001).

In doing so, the Court held that “the open and obvious danger doctrine” is no longer “part of a land possessor’s duty.” Kandil-Elsayed,___ Mich at ___; slip op at 2. “Rather, … [t]he open and obvious nature of a condition is relevant to breach and the parties’ comparative fault.” Id.

The practical effect of this is that “the open and obvious nature of a condition” will be a motion defense much less frequently; rather, it now generally must be considered by a jury. Id. at ___; slip op at 10. But, the Court left open the possibility that the issue could still give rise to dispositive motions in certain cases. Id. at ___; slip op at 10 n 2.

In Cunningham v Inland Pipe Rehab Holding Co, LLC, unpublished opinion per curiam of the Court of Appeals, issued October 19, 2023 (Docket No. 363159), the panel applied Kandil-Elsayed and still affirmed the dismissal of a premises liability suit based on the open and obvious defense.