If you were hurt by a dangerous condition on someone else’s property in Michigan, the owner or occupier may be liable if it failed to use reasonable care. Since July 28, 2023, the fact that a hazard was “open and obvious” no longer ends the case automatically. It goes to whether the owner acted reasonably and how much of the fault, if any, is yours. You generally have three years to sue, but a fall in a public building requires written notice within 120 days.
Your status on the property
Michigan still uses three categories of visitors, and the duty owed depends on which one you were. The Michigan Supreme Court described them in Stitt v Holland Abundant Life Fellowship (2000):
| Status | Who | What the owner owes |
|---|---|---|
| Invitee | People on land held open for a commercial purpose: customers in a store, restaurant, gas station or hotel | Reasonable care to protect against unreasonable risks of harm, including inspecting for hazards and repairing them or warning |
| Licensee | People present with permission but for no commercial purpose, such as social guests. Stitt held that churchgoers are licensees. | A warning of hidden dangers the owner knows about and you do not. No duty to inspect. |
| Trespasser | People present without permission | Only to avoid willful and wanton misconduct |
The 2023 change: open and obvious is no longer a complete defense
For two decades, under Lugo v Ameritech (2001), a business could get a fall case dismissed by showing the hazard was open and obvious, unless it had “special aspects.” On July 28, 2023, in Kandil-Elsayed v F & E Oil, Inc. and Pinsky v Kroger Co. of Michigan, the Michigan Supreme Court overruled Lugo on that point.
The Court held that whether a condition was open and obvious is no longer part of the question of duty. A possessor of land still owes invitees reasonable care. Obviousness is now considered when deciding:
- Breach. Did the owner act reasonably, and should it have anticipated the harm despite how obvious the hazard was?
- Comparative fault. How much of the fault is yours for not avoiding it?
The facts of the two cases show the difference. In Kandil-Elsayed, a customer slipped on snow-covered ice walking to pay at a gas station. In Pinsky, a shopper tripped over a thin cable an employee had strung across a closed checkout lane. Both cases had been dismissed under the old rule. The Supreme Court sent both back for trial.
The Court of Appeals has held that the decision applies retroactively, including to cases pending on direct appeal (Gabrielson v Woods Condominium Ass’n, 2024).
Comparative fault
Your damages are reduced by your percentage of fault. If your fault is greater than the combined fault of everyone else, you cannot recover noneconomic damages such as pain and suffering, and your economic damages are still reduced (MCL 600.2959). See how comparative fault works.
Snow and ice
Michigan winters produce more fall claims than any other hazard. After Kandil-Elsayed, a business cannot win simply by arguing that everyone knows Michigan has ice in January. The questions become whether the owner salted, plowed or warned in a reasonable time, and whether you took reasonable care.
Tenants have an added protection. Under MCL 554.139(1)(a), a residential landlord promises that the premises and all common areas are fit for the use intended. In Allison v AEW Capital Management (2008), the Supreme Court held that parking lots are common areas covered by that duty and that the open and obvious doctrine is not a defense to it. It also held that one to two inches of snow did not make a lot unfit, so this claim is strongest when ice or accumulation actually blocks safe use.
Falls on government property
Government agencies are immune from most negligence claims. One exception is for public buildings. Under MCL 691.1406, an agency must repair and maintain public buildings under its control when they are open for use by members of the public. It is liable for injuries caused by a dangerous or defective condition of the building if it knew or should have known of the defect and failed to fix it or protect the public within a reasonable time.
120 days. As a condition of any recovery for an injury in a public building, written notice must be served on the agency within 120 days of the injury. It must state the exact location and nature of the defect, the injury and the names of known witnesses, and be served personally or by certified mail, return receipt requested, on someone authorized to accept civil process for the agency (MCL 691.1406).
Falls on roads and sidewalks follow different rules and deadlines. See claims against government agencies.
Building the claim
- Photograph the hazard the same day, before it is cleaned up, salted or repaired. Include your footwear and the lighting.
- Report the fall to the store or property manager and ask for a copy of the incident report.
- Ask for video to be kept. Store surveillance is often overwritten within days or weeks. A written preservation request should go out quickly.
- Get witness names and see a doctor promptly.
- Find out who controlled the area. The owner, a tenant, a manager and a snow removal contractor may share responsibility.
Three years. A premises liability lawsuit must generally be filed within three years of the injury (MCL 600.5805). Government building claims also need the 120-day notice above.
These cases are handled on a contingency fee (see how our fees work). Contact us to talk about your fall.
Sources: Kandil-Elsayed v F & E Oil, Inc. and Pinsky v Kroger Co. of Michigan, Michigan Supreme Court Nos. 162907 and 163430 (July 28, 2023); Lugo v Ameritech Corp, 464 Mich 512 (2001); Stitt v Holland Abundant Life Fellowship, 462 Mich 591 (2000); Gabrielson v Woods Condominium Ass’n, 349 Mich App 478 (2024); Allison v AEW Capital Management, LLP, 481 Mich 419 (2008); MCL 554.139; MCL 600.2959; MCL 600.5805; MCL 691.1406.
Questions people ask us
Can I still sue if the hazard I slipped on was open and obvious?
Yes. Since Kandil-Elsayed v F & E Oil (Michigan Supreme Court, July 28, 2023), an open and obvious condition no longer means the owner owed you no duty. The jury decides whether the owner acted reasonably and whether your own fault reduces your damages.
Is a store or landlord liable for a fall on snow and ice?
They can be. A business owes customers reasonable care, which can include clearing or salting walkways. A residential landlord also has a statutory duty under MCL 554.139 to keep common areas fit for their intended use, though the Supreme Court has held that a thin layer of snow alone does not breach it.
How long do I have to file a slip-and-fall lawsuit in Michigan?
Generally three years from the fall, under MCL 600.5805. If the fall happened in a public building, written notice must be served on the government agency within 120 days.
Does it matter why I was on the property?
Yes. Michigan still sorts visitors into invitees, licensees and trespassers. A customer in a business is usually an invitee and gets the most protection. A social guest is a licensee, and a trespasser gets the least.