New Michigan Slip-and-Fall Law Leaves Property Owners More Liable for Damages

Michigan property owners are now more legally responsible than ever for addressing hazards on their properties — no matter how obvious and avoidable a hazard might be.

On July 28, 2023, the State Supreme Court ruled Michigan homeowners and businesses now have a duty to protect others from “open and obvious” hazards on their properties. The decision overturned more than 20 years of legal precedent.

Previously, Michigan courts held that property owners weren’t generally obligated to protect visitors from open and obvious hazards. The 2001 Lugo v. Ameritech case, in which the plaintiff fell after stepping into a parking lot pothole, established that precedent.

Homeowners may need to reassess their homeowners insurance coverage to ensure they’re adequately covered against the newly heightened risk of slip-and-fall claims.

“You don’t have to be a millionaire to be sued like one,” says Mallory Mooney, director of sales and client services at Insurify.

Michigan Supreme Court abolishes “open-and-obvious” defense

A recent Michigan Supreme Court ruling involves the consolidated cases of Kandil-Elsayed v. F&E Oil, Inc., and Pinsky v. Kroger Co. of Michigan. The plaintiffs slipped and fell on parking lot ice and a cable in the grocery store, respectively.

In the Kandil-Elsayed and Pinsky cases, the courts initially ruled the defendants weren’t obligated to protect plaintiffs from open and obvious hazards, based on the precedent set by Lugo.

But the Michigan Supreme Court reversed the lower court’s ruling on July 28, 2023.

The new ruling concluded that the Lugo case was wrongly decided. The state’s highest court decided that the obviousness and avoidability of a hazard don’t relieve a property owner from the duty of correcting the hazard or protecting visitors from it.

However, whether a danger is open and obvious can be considered “relevant to the breach and the parties’ comparative fault.” In other words, a victim may be considered partially at fault for injuries they incur from an obvious and avoidable hazard.

Juries, not judges, will decide slip-and-fall cases

Before the July 2023 ruling, property owners had no legal duty to protect or warn visitors when dangers were so obvious that someone could reasonably notice and avoid them. The “open-and-obvious” defense won’t stand alone going forward.

Plaintiffs in slip-and-fall cases now need to establish four elements of a negligent claim: duty of the property owner, breach of duty, causation, and harm. The ruling prevents judges from dismissing slip-and-fall cases solely on the hazard being open and obvious. The decision-making power now lies with juries, who must decide each party’s comparative fault.

Plaintiffs in personal injury cases can collect damages even if they’re partially at fault, as long as the fault doesn’t reach 50% and the jury finds the property owner breached their duty to maintain a safe environment.

Recent appeals court ruling backs new slip-and-fall framework

On Sept. 21, 2023, the state Court of Appeals ruled Jeanne and Joseph Dziewit can seek damages against Meijer Inc. for her slip and fall, upholding the Michigan Supreme Court decision that makes it easier for plaintiffs to win premise liability claims.

Jeanne Dziewit slipped on liquid from a broken watermelon. Dziewit didn’t see the spill despite two yellow warning pylons, “causing her to do a ‘slow-motion splits,’” says the complaint filed against Meijer in 2021. Dziewit tore three hip tendons, requiring surgery to repair the damage.

The Dziewits’ attorney, Philip Matthews, called the decision “ironic” because he’d decided the Dziewit case was the last slip-and-fall case he’d represent after becoming frustrated with past dismissals. He plans to continue taking such cases in the future now that the “formula has changed significantly” due to the Supreme Court ruling, Matthews told the Macomb Daily.

What the slip-and-fall ruling means for homeowners

The Michigan Supreme Court’s slip-and-fall ruling stresses a property owner’s duty to maintain a safe environment. In addition to quickly handling any hazards, Michigan homeowners should check their insurance policies.

In homeowners insurance policies, medical payments (MedPay) and liability coverage pay for slip-and-fall damages. MedPay covers the medical bills of the person injured on the property, regardless of whether the owner was negligent. Most insurers include about $2,000 to $5,000 per person of MedPay coverage as part of a standard homeowners policy.

If medical bills exceed MedPay limits or the plaintiff wants to recover other damages, including lost wages or pain and suffering, the claim falls under homeowners liability coverage. Commercial insurance also includes general liability coverage. In light of the Court ruling, homeowners may want to raise MedPay and liability limits.

Insurify’s Mooney typically recommends $500,000 in liability coverage for home policies.

“Or, a customer can purchase excess liability — also called an umbrella policy — which we highly recommend,” she says. “Excess liability provides additional protection on top of your other liability coverage for home and car.”