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Big Changes in Michigan Personal Injury Law That You Should Know By 2024

We have written a lot of articles about personal injury law in Michigan. In this article, let us look at some significant changes and reiterations in Michigan's personal injury law that you should know by 2024.

In the cases of Kandil-Elsayed v F & E Oil, Inc. and Pinsky v Kroger Co of Michigan, the Supreme Court of Michigan can revisit Michigan's personal injury law and what you need to know about it. Let us share some facts about this case and how the Supreme Court revisited personal injury law in Michigan.


A land possessor must exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous land condition. Lugo’s holding (Lugo v Ameritech Corp, Inc, 464 Mich 512) that the open and obvious danger doctrine is relevant to the defendant’s duty is overruled. While a condition's open and obvious nature remains relevant in a negligence case based on premises liability, it is analyzed as part of the breach and comparative fault, not duty.

The special-aspects doctrine in Lugo—which held that land possessors could be held liable for an open and obvious condition only when an invitee provided evidence of particular aspects of the condition, such as when the condition was effectively unavoidable or presented a substantial risk of death or severe injury, was overruled to the extent it was inconsistent with the standard in § 343A of the Second Restatement of Torts, which asks whether the land possessor should have anticipated the harm.

Although defendants in both cases owed a duty to the injured plaintiffs, genuine issues of fact remained relevant to whether they breached that duty and, if so, whether plaintiffs were comparatively at fault and should have their damages reduced.

Overturning Lugo

Concluding that Lugo must be overruled requires an analysis of whether it was wrongly decided, defies practical workability, whether reliance interests would work an undue hardship, and whether changes in the law or facts no longer justify the decision.

First, Lugo was wrongly decided because, by concluding that the open and obvious danger doctrine and any exceptions to it are a part of the duty analysis, it ran afoul of Michigan’s commitment to comparative fault. By announcing the special-aspects test, Lugo created confusion about the exceptions to the open and obvious danger doctrine. While the doctrine might have been intended simply to illustrate the broader anticipation standard, it has not functioned that way in practice.

Second, Lugo defied practical workability because it generated confusion among courts trying to apply it and sowed division. Lugo itself was a divided decision; the author of the earlier decision on which the special-aspects doctrine purported to rely disagreed with Lugo’s characterization of his analysis, and jurists on the Supreme Court and the Court of Appeals have repeatedly called it into question and disagreed over how to apply it.

Third, although Lugo has been on the books and relied on by practitioners and courts for more than 20 years, given the uncertainty and division it has generated, it cannot be said to be so accepted and fundamental as to create real-world dislocations if changed. Overruling Lugo would end two decades of uncertainty and arguments over its unclear standard and varying applications.

Finally, no changes in the law or facts weighed either for or against overruling Lugo, apart from Lugo’s failure to account for the shift to a comparative-fault regime. Accordingly, Lugo was overruled.

Legislative Review

The Supreme Court revisited its rules on contributory negligence in personal injury cases, claiming that Michigan formerly considered contributory negligence to be a complete bar to recovery in a negligence action, and the open and obvious nature of a particular danger was relevant to a court’s assessment of whether a plaintiff had been contributorily negligent. In developing its premises-liability law during this era, Michigan courts treated the Restatement of Torts as persuasive and occasionally adopted parts of the Restatement into the common law.

Specifically, courts relied on § 343 of the First Restatement of Torts for the rule that a land possessor was subject to liability for bodily harm caused to business visitors only concerning conditions involving an unreasonable risk to them. Still, if the landowner had reason to believe the business visitor would discover the condition or realize the risk it involved, the landowner was not subject to liability.

Under the revised § 343, landowners were still subject to liability to business visitors—now categorized as “invitees”—only for conditions that involved an unreasonable risk of harm, and they were still generally not liable for dangers that were known or apparent to the invitee. However, under § 343A, landowners would face liability if they should have anticipated the harm despite such knowledge or obviousness. It remained unclear which pieces of this analysis fell under duty or breach and which aspects of the study should be decided by the judge versus the jury.

Effect of Doctrine

The effect of the doctrine is simple: the landowner would not be liable for dangers that would have been known or apparent to the invitee. However, landowners would face liability if they should have anticipated the harm despite such knowledge or obviousness.

This rule is now more straightforward, and every landowner should know this doctrine.

If you think that this doctrine works for you and your needs, you should make sure that you contact Haque Legal to help you with your needs.



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