In 2023, the Michigan Supreme Court made a landmark decision that restored a sense of fairness to personal injury law. In the cases of Kandil-Elsayed v. F&E Oil, Inc. and Pinsky v. Kroger Co. of Michigan, the court finally struck down the “open and obvious” doctrine as a total bar to recovery.
Now, some Michigan legislators are attempting to undo that progress with House Bill 4582 and House Bill 5281. If passed, these bills would effectively resurrect a “shield” for negligent property owners, making it nearly impossible for many injured Michiganders to seek justice.
The “Open and Obvious” Trap
Under the old rules—the ones these bills seek to bring back—a property owner could be found negligent but still pay nothing. How? By simply arguing that a hazard was “obvious.”
Consider these common scenarios:
- The Black Ice Trap: You walk into a business and slip on a patch of unsalted ice. Even if the owner knew it was there and chose not to salt it, they could claim you “should have seen it,” instantly ending your case.
- The Hidden Hazard: A shopper trips over a thin, clear wire used to block a grocery aisle. Under this doctrine, a court could decide the wire was “obvious” enough to a “reasonable person,” leaving the victim with medical bills and no recourse.
Why These Bills Are “Discriminatory by Design”
The Michigan Supreme Court eliminated this doctrine because it created a perverse incentive for businesses to ignore dangers. If a hazard is visible, why fix it? Under “open and obvious,” the more visible the danger, the more immune the business becomes.
This is especially dangerous for Michigan’s most vulnerable populations. The Michigan Association for Justice has noted that this doctrine is inherently discriminatory toward:
- The Elderly: Those with slower reaction times or limited mobility.
- The Disabled: Citizens with vision impairments or cognitive disabilities who may not perceive hazards in the same way.
- The Distracted: Parents with children or workers performing their jobs who may have their attention momentarily diverted.
Comparison: Current Law vs. Proposed Changes
The current system uses comparative negligence, which is far fairer. It allows a jury to look at the facts and decide who is at fault and by what percentage.
| Feature | Current Michigan Law (Post-2023) | Proposed HB 4582 / 5281 |
| Duty of Care | Owners always have a duty to keep premises safe. | Duty is “erased” if the danger is deemed obvious. |
| Who Decides? | A Jury decides how much fault each party holds. | A Judge can dismiss the case before it ever reaches a jury. |
| Accountability | Encourages property owners to fix hazards. | Encourages property owners to leave hazards “in plain sight.” |
Keller & Keller: Standing Guard for Michigan Families
At Keller & Keller, we’ve seen how insurance companies use legal technicalities to avoid paying what they owe. These bills are a corporate-backed attempt to strip you of your rights and protect negligent businesses at your expense.
We believe that whether a danger was visible shouldn’t change the fact that it was dangerous. If an owner knew about a hazard and chose not to fix it, they should be held accountable for the injuries that follow.
Take Action
Don’t let your right to a trial be taken away. You can track the progress of House Bill 4582 here and see if your representative is supporting this return to an unfair system.
