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“Open and Obvious” – a phrase that I so often heard from customers when a claim occurs, or when discussing possible claim scenarios that involve parking lots, walkways and stairs.
With the overturning of this doctrine in July of 2023, property owners and contractors who tend to properties will no longer have as strong of a defense to turn to when these types of events happen.
Following the Michigan Supreme Court’s decision, Chief Justice Elizabeth Clement wrote:
“By shifting the open and obvious danger doctrine to breach, it will allow the jury to do just what this Court — and the Legislature — intend: conduct a comparative analysis of each party’s fault.”
What this means is that moving forward, more injuries on premise will lead to lawsuits, which will lead to more trials, where judges and juries will be analyzing the negligence of both parties; the property owner and the claimant.
Here’s a scenario: a store hires a snow removal company to care for their parking lot. After an ice storm, a customer visits the premises and slips and falls, breaking their wrist.
- Under the old law – Ice is common in Michigan and was often considered open and obvious, meaning the claimant should have known ice was forming and they assumed risk of slipping and falling under those conditions. Most lawyers would pass on the case as any lawsuit would be likely thrown out.
- After the change – The specifics of the event are investigated, fault could be found on both the store owner and the snow removal company, even if partial fault is found on the claimant.
Below are a few steps that property owners and contractors can take to protect themselves:
- Be thorough in the upkeep of your property – repair potholes, broken sidewalk, steps, use no-slip surfaces, and make sure areas are well-lit.
- Keep a maintenance log for snow removal and spreading ice melt.
- Review contracts and ensure risk is transferred to the other party if you are bringing on a contractor to maintain the premises or are a contractor yourself.
- Use surveillance cameras throughout to capture events.
Connect with one of our independent agents today to get the conversation started.