Victims of slip and falls now have a greater chance of recovering damages in their cases thanks to the Michigan Supreme Court’s groundbreaking decisions in Kandil-Elsayed v F & E Oil and Pinsky v Kroger. The Court’s ruling corrects years of improper application of the “Open and Obvious” (O&O) rule/doctrine and changes the landscape of premises liability. This change will allow more victims of slip and falls to recover compensation for falls caused by hazardous conditions on someone else’s property. While the Court’s ruling is great news for those injured in the State of Michigan, slip and fall claims involve complex legal issues and multifaceted legal processes. To ensure your case ends in the best result possible, hire Koussan Law. Our attorneys use experience, superior legal knowledge, and strategy to protect your rights and win your case.
WHAT IS THE “OPEN AND OBVIOUS” DOCTRINE?
Property owners have used the “Open and Obvious” defense for over two decades to avoid compensating victims of slip and fall accidents. According to the legal definition, a hazard was considered O&O if “an average person of ordinary intelligence would have been able to discover the danger and risk upon casual inspection.” The O&O doctrine was improperly applied in cases to determine whether or not a property owner owed persons on their property a duty to keep them safe. If it was determined that a hazard was O&O, then the property owner owed no duty to the injured person, and recovery was barred.
Take two examples:
- 1. You stop at a gas station to fill up your tank. Upon checking your wallet/purse, you realize you’ve forgotten your credit card and will have to go inside to pay cash. You’re counting your cash on the way in and don’t notice you’re headed for a large pothole. You trip on the uneven cement and fall hard on the concrete, sustaining bruising, cuts, and broken bones.
- 2. You’ve just gotten off work and need to stop at the grocery store to pick up ingredients for that evening’s meal. You’re running late and are in a rush. You hurry through the front doors and quickly enter the aisle containing the needed ingredients. Unbeknownst to you, the grocery store employees have had to close off the aisle for clearing and have placed a low-hanging cord across the aisle to indicate it’s closed. You don’t notice the low-hanging cord in your rush, and you trip, falling hard on the grocery store floor, sustaining bruising and broken bones.
Before the Court’s decision in Kandil-Elsayed v F & E Oil and Pinsky v Kroger, the gas station and store owner could claim the defense that the hazards were Open and Obvious. In both cases, the Court would likely agree with the premises owners and determine that based on the O&O nature of the hazard, the property owner owed no duty to the injured party. This would effectively bar the injured party from recovering any amount of money unless they could show the hazard was unreasonably dangerous or effectively unavoidable.
Unreasonably dangerous includes any condition with a “uniquely high likelihood of harm or severity of harm if the risk is not avoided.” The Court used a 30-foot pit in the middle of a parking lot to illustrate this concept. While a crater this size would be easily noticed, falling into it would probably cause life-threatening injuries or death.
Effectively unavoidable: This exception applies to hazards that cannot be reasonably avoided. For example, if a building has only one entrance/exit walkway and is covered with ice, anyone wishing to leave would have no other option.
HOW DOES THE COURT’S RULING BENEFIT VICTIMS OF SLIP AND FALL ACCIDENTS?
The Court’s recent reinterpretation of the O&O rule/doctrine paves the way for more slip and fall victims to receive compensation for their injuries.
The previous interpretation favored property owners over victims. Claims were based on the victim’s ability to recognize a potential danger instead of the owner’s duty to remove the hazard or warn visitors about its potential risks. Consequently, while there were some limited exceptions to the rule, most cases were decided in favor of the property owner.
In a groundbreaking joint ruling on TWO slip and fall cases, Kandil-Elsayed v F & E Oil and Pinsky v Kroger, the Michigan Supreme Court overturned the previous application of the O&O doctrine that exempted property owners from their duties to those on their property.
Moving forward, Michigan courts will no longer use the Open and Obvious doctrine to determine if the property owner owed persons on their property a duty. Instead, the Courts will use the O&O doctrine to consider whether a landlord breached the duty to maintain safety on their premises and any degree of fault on the victim’s part. Property owners will no longer get an automatic pass, and victims are more likely to receive compensation for injuries and other losses resulting from a slip and fall accident.
Looking back at the two examples, both the individual at the gas station and the grocery store are owed a duty by the property owner. They are not barred from recovering simply because the hazard is deemed O&O. The Court would conclude that the property owners did owe a duty to the person on their property and would then determine whether the property owner breached that duty by failing to anticipate potential harm caused by the hazard despite its Open and Obvious nature.
However, because these cases are complex, hiring an experienced slip and fall lawyer is the best way to protect your rights and receive the compensation you deserve.
DOES THE NEW LAW AFFECT SLIP AND FALL ACCIDENTS CAUSED BY ICE AND SNOW?
In the past, the “natural accumulation” rule made it difficult for victims of winter slip and fall accidents to receive compensation. The term was based on the supposition that Michiganders should expect snow and ice during winter and take appropriate safety precautions when walking outdoors. In addition, landlords and property owners could escape liability by claiming snow and ice were O&O to an average person.
The reinterpretation of the O&O doctrine means landlords and property owners will be more held accountable for slip and falls caused by icy conditions. Instead of giving property owners an automatic pass in these situations by determining they do not owe any duty, courts will consider whether they breached the duty to keep their premises safe, along with the degree of fault (if any) assigned to the victim.
WHAT IF I AM PARTIALLY AT FAULT FOR A SLIP AND FALL ACCIDENT?
The recent law change does not affect Michigan’s “modified comparative negligence” statute, which considers the victim’s role in an accident to determine compensation for personal injury cases.
For example, someone who did not see a step because they were focused on a cell phone or who wore high heels to walk through an icy parking lot would be considered partially responsible if injured in a fall. In those instances, compensation may be reduced according to the degree of fault assigned to the plaintiff.
In addition, if a plaintiff was texting at the time of a fall, compensation may be determined as follows:
- — Plaintiff’s attorney negotiates a settlement of $100,000
- — The plaintiff is found to be 30% at fault
- — Payment is reduced by 30%, or $30,000
- — Plaintiff receives $70,000, less attorney fees and expenses
Furthermore, a victim who is more than 50% responsible for an accident may not receive compensation for non-economic losses such as pain and suffering. This is significant because these intangible damages often comprise the most substantial part of a settlement.
CONTACT OUR EXPERIENCED SLIP AND FALL LAWYERS TODAY
If you were injured in a slip and fall accident on someone else’s property, Koussan Law can help. Our knowledgeable lawyers have the expertise and experience you need to win the award you deserve.
Slip and fall law is complicated, but finding an attorney is straightforward here at Koussan Law.
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