Open and Obvious Defense in Personal Injury Cases

Business owners owe a reasonable duty of care to protect customers from unreasonable risks of harm caused by hazardous conditions on a business premises. If the operator of a business fails to comply with this duty and a hazardous condition causes a customer to suffer an injury, that customer may have a personal injury claim against the premises owner. However, it can be very difficult to succeed on a premises liability claim in Michigan because of the “open and obvious” defense.

In Michigan, if a danger is known to a business invitee or the danger is “open and obvious” a business owner does not owe the customer a duty to protect from or warn the customer of the condition. Whether a danger is open and obvious depends on whether it would have been discovered by casual inspection. Michigan courts have held that the following can be open and obvious hazards: large potholes, an unmarked step, icy sidewalk conditions, and puddles of water.

However, in two instances a property owner will be foreclosed from arguing they did not need to protect customers from an open and obvious condition: when the hazard is unreasonably dangerous, or when the hazard is effectively unavoidable. An example of an open and obvious condition that is effectively unavoidable is water covering the floor at the only exit of a business. An example of an unreasonably dangerous risk, one that gives rise to a uniquely high likelihood of harm, is a 30-foot deep pit in the parking lot of a business.

PSED Law recently secured a substantial settlement for a client that was injured in a trip-and-fall accident. Our elderly female client tripped and fell over electrical cords haphazardly strewn across a walkway at a campground. The cords were unmarked and unlit, and the walkway was intended for use at night. The property owner moved for dismissal on the grounds that the electrical cords were open and obvious. PSED defeated this trial court motion by demonstrating that the cords were not open and obvious, because they were unlit and the fall occurred at night, that the cords were effectively unavoidable because there was no alternative route back to our client’s campsite, and that the cords caused an unreasonably high risk of harm. The open and obvious defense provides substantial protection for premises owners, but it isn’t impossible to overcome.

Premises liability actions require careful planning, a thorough understanding of the law, and experienced attorneys. We offer these skills to our clients. PSED Law has achieved success in many other trip and fall and other personal injury actions.

If you’ve been injured in a slip-and-fall, a trip-and-fall, or any other type of accident and you need an experienced and effective advocate to protect your rights, please contact us in Ann Arbor at 734-665-4441.  To learn more about Pear Sperling Eggan & Daniels, P.C., or any of our attorneys, please visit us at www.psedlaw.com.