Michigan Premises Liability After Kandil-Elsayed: What Changed for Slip-and-Fall Cases

You fell on an icy path outside a store, tripped over something in an aisle, or went down in your apartment parking lot. Maybe an adjuster has already told you the hazard was “open and obvious,” so you have no claim. For more than 20 years, that argument ended many Michigan premises liability cases, claims over injuries caused by unsafe property, before a jury ever heard them.

It doesn’t work that way anymore. On July 28, 2023, in Kandil-Elsayed v F & E Oil, Inc, the Michigan Supreme Court held that “the open and obvious nature of a condition is relevant to breach and the parties’ comparative fault.” In plain terms, an obvious hazard no longer means a business owed you nothing. It’s one factor in whether the owner acted reasonably and how much of the blame is yours.

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What was Michigan’s old “open and obvious” rule?

The version the Supreme Court overruled in 2023 came from Lugo v Ameritech Corp (2001). The woman in that case “apparently stepped in a pothole and fell” in a parking lot, and the Supreme Court held that the business owed her no duty because the pothole was open and obvious. A hazard is open and obvious if it’s reasonable to expect that “an average person with ordinary intelligence would have discovered it upon casual inspection.”

Under Lugo, an owner had to protect you from an obvious hazard only if it had “special aspects,” such as standing water covering the only exit of a commercial building, which made the danger “effectively unavoidable,” or an unguarded 30-foot-deep pit in a parking lot.

All of this was about duty, whether the owner owed you any care at all, which judges decide “before a case can get to a jury.” So many fall cases were dismissed before trial. In Kandil-Elsayed itself, the Court of Appeals had ruled against a gas station customer who slipped on snow because she chose to cross it instead of going elsewhere or calling the attendant for help. The Supreme Court later said that under Lugo, “a plaintiff’s fault works to cut off liability in full,” even though Michigan had adopted comparative fault in 1979.

What did Kandil-Elsayed change?

The Court decided two cases together. In Kandil-Elsayed, a customer slipped on a snowy path at a gas station that didn’t appear to have been shoveled or salted. In Pinsky v Kroger Co of Michigan, a shopper tripped over a thin cable an employee had strung to close off a checkout lane. The Court of Appeals had ruled for both businesses. In a 5–2 decision, the Supreme Court overruled Lugo on two points:

• Obviousness moved from duty to breach. Breach means falling short of reasonable care. An obvious hazard now bears on breach and on your comparative fault, your share of the blame, not on whether you were owed a duty at all.
• “Special aspects” is gone. The question now is whether the owner “should anticipate the harm” despite the obviousness. If so, “the possessor is not relieved of the duty of reasonable care.”

Breach is generally “a question of fact for the jury,” though a judge can still decide it when the evidence leaves no real factual dispute. And the Court didn’t decide that either business was at fault. It sent both cases back, noting that an owner “need only exercise reasonable care under the circumstances.”

Does the new rule apply to a fall before July 28, 2023?

The Supreme Court applied the new rule to both cases and sent other pending cases back to be reconsidered. In 2024, the Court of Appeals held in a published decision that Kandil-Elsayed “operates retroactively,” applying to all cases then pending on direct appeal (Gabrielson v Woods Condominium Ass’n). For most people the question has faded: a fall before July 28, 2023 is more than three years old, so the usual deadline has passed unless a lawsuit was already filed or an exception applies, such as for someone hurt as a child (MCL 600.5805(2), 600.5851(1)).

What stayed the same?

• The duty to customers. Owners owe invitees, people there for the owner’s business, reasonable care to protect them from “an unreasonable risk of harm caused by a dangerous condition of the land” that the owner knew or should have known about (M Civ JI 19.03). You still need proof of that notice; see how premises liability claims work.
• Owners aren’t insurers. The Court agreed that “landowners are not insurers.”
• The visitor categories. The Court held that “the three traditional status-based categories—licensee, invitee, and trespasser—remain,” leaving a single reasonable-care standard “for a later time.”

Because a licensee is protected only from dangers they had no reason to know of, an obvious hazard may still defeat a social guest’s claim. Kandil-Elsayed involved invitees.

How have courts applied Kandil-Elsayed since 2023?

Condo owners in common areas (2024)

In Janini v London Townhouses Condominium Ass’n, a condo owner suffered a brain injury after slipping on a snow- and ice-covered common sidewalk while taking out the trash. Quoting the invitee duty from Kandil-Elsayed, the Supreme Court held that when the condo documents make the association responsible for common areas the owners don’t control, an owner using them is an invitee. What matters is “who has possession and control over the land where a person was injured, not merely who owns the land.” The Court also agreed that tenants are the landlord’s invitees in common areas.

A trench, a contractor and a landlord (2026)

In Bowerman v Red Oak Management Co (July 20, 2026), a 75-year-old tenant of a building for elderly and disabled residents fractured her ankle before sunrise when she stepped into a trench, about 10 feet long and four inches deep, near the trash area. A contractor had left it uncovered and unmarked when it finished work nine days earlier, and an expert said the lot was underlit. The Supreme Court revived both claims:

• The contractor no longer controlled the lot, so the claim was ordinary negligence. The Court of Appeals had relied on her own choices and her knowledge of the trench. Citing Kandil-Elsayed, the Supreme Court held that her acts “are relevant to her degree of comparative fault but do not establish, as a matter of law,” that the contractor met its duty not to unreasonably endanger others.
• The landlord promises by law that “the premises and all common areas are fit for the use intended by the parties” (MCL 554.139(1)(a)). The Court of Appeals had called the trench a “mere inconvenience.” A 4–3 majority said fitness is judged “in light of the uses intended by the parties,” including who the building is for, and that inconvenience “may be relevant, but it is not dispositive.” Even under Lugo, open and obvious was no defense to this lease promise (Allison v AEW Capital Management, 2008).

A vacation renter on an icy lot (2026)

In Letvin v Village at Grand Traverse Commons Condominium Ass’n (July 13, 2026), the Court of Appeals held in a published decision that a condo owner’s short-term rental guest is the association’s invitee in the common areas it maintains. The guest broke his arm in an icy parking lot. The association’s contractor had spread thousands of pounds of salt that weekend, but photos showed ice remained, and its board took no responsibility for monitoring the contractor’s work. Whether the association acted reasonably was for a jury.

Could the visitor categories change?

Possibly. In Molitoris v Saint Mary Magdalen Catholic Church, a parishioner volunteering at the church’s free community meal slipped on ice in what she said was a dark parking lot and fractured her wrist, pelvis and hip. The lower courts ruled that she was a licensee and dismissed her claim. On May 22, 2026, the Supreme Court agreed to hear her appeal. It asked whether Michigan should adopt the “public-invitee” category it rejected in 2000 (Stitt v Holland Abundant Life Fellowship), or replace the invitee and licensee categories with a “reasonable-care standard.” As of September 2026, briefing was still under way, and the Court hadn’t ruled.

Who is responsible for snow and ice now?

An owner must see that “reasonable measures be taken within a reasonable time after an accumulation of ice and snow to diminish the hazard of injury to the invitee” (Quinlivan v Great Atlantic & Pacific Tea Co, 1975, applied in Kandil-Elsayed). Michigan’s model jury instruction on that duty, deleted in 2004, was revised and restored in January 2024 in response to Kandil-Elsayed (M Civ JI 19.05).

• Not every storm, instantly. The Court said only “a distorted reading” of its decision would require owners to clear snow and ice after, or even during, every storm.
• Timing matters. In Kandil-Elsayed, the record didn’t show when the snow began or whether it had stopped, so the Court couldn’t say whether the station acted reasonably. Weather records, photos and plowing and salting logs can answer that.
• Your choices count too. In setting her share of fault, a jury could weigh her testimony that she could clearly see the snow in a well-lit area, and “the prevalence of wintry conditions in Michigan.”
• Tenants. In 2008, one to two inches of snow over ice didn’t make an apartment parking lot unfit, because tenants could still drive in, park and reach their cars (Allison). Bowerman left that decision in place but made clear that the test is fitness for the intended use in each case.
• Public sidewalks. Michigan’s model instructions note that an owner owes pedestrians no duty for natural accumulations of ice and snow on the public sidewalk next to its land (M Civ JI 19.06, comment).

For more on building a fall case, see how slip-and-fall claims work.

How does your share of the blame affect what you recover?

Michigan reduces your damages by your percentage of fault. If your share is greater than everyone else’s combined, you still recover economic damages, such as medical bills and lost pay, reduced by your share, but no noneconomic damages, such as pain and suffering (MCL 600.2959). The jury, or the judge if there’s no jury, sets the percentages and weighs everyone’s fault, including people who aren’t parties to the case (MCL 600.2957(1)).

• $100,000 in damages, 20% your fault: you receive $80,000.
• $40,000 in bills and lost pay plus $100,000 for pain and suffering, 60% your fault: you receive $16,000.

Since Kandil-Elsayed, this is where “you should have seen it” arguments go: the jury may consider “the open and obvious nature of the hazard and the plaintiff’s choice to confront it.”

One harsher rule: if alcohol (the statute says “intoxicating liquor”) or a controlled substance impaired your ability to function and, as a result, you were 50% or more the cause of the fall, the owner has an “absolute defense.” Below 50%, your damages are reduced by that percentage (MCL 600.2955a(1)). See how comparative fault works in Michigan.

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What if you fell on government property?

Kandil-Elsayed changed the common-law rules for private owners. Claims against a city, county, road agency or the State turn mostly on the governmental immunity statute: an agency is immune from injury claims arising from its government functions unless the law makes an exception (MCL 691.1407(1)). The main exceptions for falls:

• Sidewalks. A city, village or township must keep a sidewalk next to a public road in reasonable repair. It’s presumed to have done so unless “a vertical discontinuity defect of 2 inches or more,” or another dangerous condition “in the sidewalk itself,” caused the injury, and you must show it knew or should have known of the defect at least 30 days before (MCL 691.1401(d), 691.1402a). A judge decides whether that presumption is overcome, and the statute still lets it argue that the condition “was open and obvious.” In 2025, the Supreme Court held that a 5-inch metal stub paved into a sidewalk qualified (Mann v City of Detroit).
• Roads. Only “the improved portion of the highway designed for vehicular travel,” not crosswalks or trailways (MCL 691.1402(1)).
• Public buildings. A dangerous or defective condition in a public building the agency controls, if it knew or should have known of it and didn’t fix it, or protect the public from it, within a reasonable time (MCL 691.1406).

For any of these, serve written notice within 120 days giving the exact location and nature of the defect, your injury and known witnesses, in person or by certified mail with a return receipt, on someone who can legally accept court papers for the agency; for the State, file it in triplicate with the clerk of the Court of Claims (MCL 691.1404, 691.1406). A child hurt on a road or sidewalk has 180 days (MCL 691.1404(3)). Courts enforce this strictly: a woman who said she tripped on broken pavement while crossing a street served notice on day 140, and the Supreme Court ordered her case dismissed (Rowland v Washtenaw County Road Commission, 2007).

How long do you have to act?

See every Michigan injury deadline in one place.

What does this mean for your fall?

• “Open and obvious” isn’t the end. For customers, tenants and other invitees, it’s an argument about reasonableness and fault, not an automatic defense.
• The fight is over what the owner did. When did the spill or snow appear? Was the area inspected, salted or lit? Those records matter most now, and they can disappear; see what it takes to win a slip-and-fall case.
• Your status still matters. A social guest or volunteer may be a licensee unless Molitoris changes the rule.

What to do next

1. Get medical care, and tell every provider how you fell. That links your injury to the fall in your records.
2. Save the evidence now. Photograph the hazard, the lighting and the weather, keep your shoes, get witness names, report the fall in writing, note why you took the route you did, and ask the owner in writing to keep its video and its snow-removal, inspection and cleaning records.
3. Find out who controlled the spot. A store, landlord, condo association, contractor or government agency may be responsible. If it was public property, the 120-day clock is already running.
4. Be careful with the insurer. You don’t have to give the owner’s insurer a recorded statement; get advice first, and don’t sign a release before you know how badly you’re hurt.
5. Talk to a lawyer well before the deadlines. Get a free case review or compare Michigan slip and fall lawyers, and get the fee in writing; see how personal injury lawyers get paid.

What waiting can cost

• Evidence. Ice melts, spills get mopped, trenches get filled and video gets recorded over.
• A government claim. Notice served on day 140 instead of day 120 ended the claim in Rowland.
• The right to sue. Most Michigan fall lawsuits must be filed within three years (MCL 600.5805(2)).

What a good outcome looks like

Whoever controlled the property answers for what it did or didn’t do, judged by what was reasonable rather than by a label. Your medical bills and lost pay are covered, any share of fault assigned to you matches what actually happened, and every notice goes out on time. From being told the hazard was “open and obvious” to knowing what changed, how your share of the blame counts and how long you have to act.

For every Michigan rule in one place, see the Michigan personal injury law reference, or browse the slip, fall and unsafe property guides.

Updated September 25, 2026

This guide is general information, not legal advice, and laws change. For advice about your situation, talk to a lawyer licensed in your state. Reading this page or contacting us does not create an attorney-client relationship.