Kandil-Elsayed v. F&E Oil: Michigan’s New Open-and-Obvious Doctrine

By Attorney Manny Chahal · Updated 2026 · Reading time: ~7 min

In July 2023 the Michigan Supreme Court overruled 22 years of precedent and rewrote the rules for slip-and-fall and premises liability cases. Kandil-Elsayed v. F&E Oil, Inc., 512 Mich 95 (2023), did away with the no-duty-for-open-and-obvious-hazards rule from Lugo v. Ameritech Corp. — and shifted the analysis from a complete defense to a comparative-fault question for the jury.

The Old Rule: Lugo v. Ameritech (2001)

Under Lugo, if a hazard on someone’s property was “open and obvious” — meaning a reasonable person would have seen it on casual inspection — the property owner owed no duty at all. Cases were dismissed at summary disposition. Black ice in a parking lot in February? Open and obvious. A pothole in daylight? Open and obvious. A puddle inside a grocery store with a yellow cone nearby? Open and obvious. For 22 years, premises liability plaintiffs in Michigan lost case after case at the door of the courthouse.

Lugo recognized two narrow exceptions: hazards that were “effectively unavoidable” or that posed “a uniquely high risk of severe harm.” But Michigan appellate courts construed both exceptions almost out of existence — the bar was so high that even a customer required to walk through ice to enter their workplace could not satisfy “effectively unavoidable.”

The New Rule: Kandil-Elsayed v. F&E Oil (2023)

Kandil-Elsayed involved a woman who slipped and fell on snow and ice at a gas station. The trial court granted summary disposition for the defendant under Lugo. The Michigan Supreme Court — in a 5-2 decision authored by Justice Bolden — overruled Lugo and held:

What Premises Owners Owe Under Restatement (Second) §343

The Michigan Supreme Court re-anchored premises liability in §343 of the Restatement (Second) of Torts. A possessor of land owes a duty to invitees to protect them from an unreasonable risk of harm caused by a condition on the land if the possessor (a) knows or should know of the condition and the unreasonable risk it creates, (b) should expect that invitees will not realize the danger or will fail to protect themselves, and (c) fails to exercise reasonable care to protect them.

That last factor — should the possessor anticipate that invitees will encounter the hazard despite its obviousness — is doing the heavy lifting under the new rule. A grocery store should anticipate that customers will navigate a wet floor on the way to the register. A hotel should anticipate that guests will walk on icy steps because that is the only way to leave. The fact that the danger was visible does not change that.

How Comparative Fault Now Operates

The Section 2956 Bar Still Applies

Comparative fault under MCL 600.2959 still applies after Kandil-Elsayed: a plaintiff who is more than 50% at fault is barred from recovering non-economic damages (pain and suffering) — but can still recover economic damages (medical bills, wage loss) reduced by their percentage of fault. Kandil-Elsayed did not change that statute.

Practical Impact for Slip-and-Fall Plaintiffs

• Cases survive summary disposition. Defendants can no longer get a quick dismissal by labeling the hazard “open and obvious.” They must now develop a factual record on what reasonable care looked like.
• Settlements are larger. Insurers know jurors will weigh both sides’ conduct. Pre-suit settlement leverage on premises cases has materially increased since July 2023.
• Documentation matters more. Photos of the hazard, weather records, prior complaints, store inspection logs — these proofs now do work they could not do under Lugo.
• Watch for the 51% trap. If you walked past three warning cones into a clearly marked spill, comparative fault may eliminate your pain-and-suffering claim. Reasonable conduct on the plaintiff’s side still matters.

Cases Decided Under the New Framework

Michigan appellate courts have been working through the implications since 2023. Pinsky v. Pikul applied Kandil-Elsayed retroactively to pending cases. The Court of Appeals has reversed multiple summary dispositions where the trial court relied on Lugo after July 28, 2023. If your case was dismissed under Lugo and is still on appeal or within the post-judgment window, the change in law may resurrect it — talk to a Michigan personal injury lawyer who has been litigating premises cases under the new framework.

What Property Owners Should Be Doing Now

• Inspection logs. Document conditions every shift.
• Salt and snow protocols, with timestamps.
• Warning cones, signage, and remediation records.
• Surveillance preservation when an incident is reported.

These are not just risk-management steps — they are the evidence the jury will weigh when allocating fault. Owners who skip them will lose more cases than they used to.

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