Premises Liability Update:
The Uncertain Future of Lugo
Name: AHLAM KANDIL-ELSAYED v. F&E OIL, INC.
Court/Judge: Michigan Supreme Court – Order on Application for Leave to Appeal.
Issued: February 4, 2022
Following our prior Newsletter on the Court of Appeals decision in this case, the saga continues in what could be a signficant paradigm shift in premises liability law. In essence, the outcome of this case could considerably reduce the protections in the Open and Obvious Doctrine and prevent the future application of Lugo v Ameritech Corp, Inc, 464 Mich 512 (2001). Presently, this case is proceeding through the Michigan Supreme Court where Lugo, one of the central authorities for premises liability in Michigan since 2001, is under review. Specifically, Lugo addressed the "effectively unavoidable" exception to the Open and Obvious Doctrine with respect to a pothole in the defendant's parking lot. In Lugo,the Court found that the pothole did not have any special characteristics to make it unavoidable, so the Open and Obvious Doctrine barred the plaintiff's claim. The Court also found that comparative negligence did not apply because application of the Open and Obvious Doctrine should be determined on the objective nature of the condition.
APPLICATION FOR LEAVE IN AHLAM KANDIL-ELSAYED v. F&E OIL, INC.
On February 4, 2022, the Michigan Supreme Court issued an Order considering an Application for Leave in this case. Critically, the Order requests supplemental briefing on the following issues:
- Whether there was a question of fact if the parking lot in this case constituted an effectively unavoidable condition;
- Whether Lugo v Ameritech Corp, Inc is consistent with Michigan's comparative negligence framework; and
- Which approach should be adopted for analyzing premises liability cases under a comparative negligence framework.
As you can gather, the way that the Court has framed the issues on appeal provides uncertainty as to Lugo's application to current and future parking lot cases. One one hand, the Open and Obvious Doctrine may gain a comparative negligence component and enhance the protections for property owners. On the other, the decision may modify or eliminate the "effectively unavoidable" exception and lessen the previous protections afforded to property owners potentially increasing liability exposure.
This is a case that has certaintly garnered our continued attention, and we will keep our readers updated on further developments in this case.