HB 5744: ‘open and obvious’ would be comparative negligence issue only

The Michigan House Judiciary Committee will take up the slippery issue of the open-and-obvious doctrine with a Wednesday hearing on HB 5744.

The bill would amend MCL 600.2959 to make the open and obvious doctrine an element an issue of comparative fault only.

Under the open and obvious doctrine, in its current case-law formulation, premises liability cases must be dismissed as a matter of law when “an average person of ordinary intelligence” would discover the complained-of condition “upon casual inspection” and the condition “does not create an unreasonable risk of harm.”

The Michigan Supreme Court, in Lugo v. Ameritech Corp. 464 Mich. 512 (2001), ruled that the doctrine determines whether a premises owner even owes a duty of care.

Under HB 5744, sponsored by Rep. Andrew Kandrevas (D-Southgate):

whether a condition is open and obvious may be considered by the trier of fact only in assessing the degree of comparative fault, if any, and shall not be considered with respect to any other issue of law or fact, including duty.

For a many-a-truth-is-said-in-jest critique of the doctrine, see “Adventures in OpenandObvious Land,” by John A. Braden in the March 2007 Michigan Bar Journal.

3 thoughts on “HB 5744: ‘open and obvious’ would be comparative negligence issue only

  1. Multiple spelling issues aside, I disagree with the substance of Mr. Coffey’s comment. (Though we may be related. Coffey is my mother’s maiden name.)

    A great deal of injustice has been done in the name of the open and obvious “doctrine”. (An active creation of an allegedly “judicially restrained” court.)

    I have written many articles on the subject on my blog, http://www.attorneybutler.net

    If our legislature has the time to deal with the decriminalization of duelling (which it did in the past year), it has time to deal with this issue.

    However, as it can’t seem to legislatively fix a problem in a statutory cause of action like the serious impairment issue in the No-Fault Act, I am not hopeful that it will fix a Common Law cause of action by legislatively addressing the judicially created open and obvious “doctrine”.

  2. I am a victim of the “open and obvious” law and feel it is of the utmost urgency that this law be changed. I have suffered a severe debilitating injury due to the negligence of a shop keeper as well as lifelong medical issues as a result of a fall. To be told I have no recourse not only makes me very angry, it also makes me feel as though my quality of life doesn’t matter to anyone but myself. I moved to Michigan several years ago from another state and at this point in time, I feel like Michigan is not my “home” because I don’t feel safe or protected here. With the “open and obvious” law we are on our own, with no defense, if we are injured while doing something as innocent as shopping.

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