Michigan Slip and Fall After Kandil-Elsayed: The New Premises Liability Map (2026)
For nearly two decades, the Michigan “open and obvious” doctrine ended most slip-and-fall cases before they ever reached a jury. In July 2023 the Michigan Supreme Court ended that era. Kandil-Elsayed v F & E Oil, Inc, 512 Mich 95 (2023), overruled Lugo v Ameritech Corp Inc and reframed the open-and-obvious analysis as a question of comparative fault, not a no-duty bar. This guide walks through the new Michigan premises liability map — what changed, what survived, and what claimants should know in 2026.
The Old Map: Lugo and the “No Duty” Bar
Under Lugo v Ameritech Corp Inc, 464 Mich 512 (2001), a Michigan land possessor owed no duty to protect invitees against hazards that were open and obvious unless special aspects made them unreasonably dangerous. The two recognized special aspects were unavoidability and unreasonable risk of severe harm. The framework operated as a near-categorical bar: a hazard a reasonable person would have noticed defeated the case at summary disposition, regardless of how negligent the property owner had been.
The result was a generation of dismissed cases — ice, water on a tile floor, a pothole in a parking lot, a torn carpet — ended by motion practice that often did not let the jury weigh the facts.
The New Map: Kandil-Elsayed Restores the Comparative-Fault Frame
The Court paired its decision with Pinsky v Kroger Co of Michigan, 512 Mich 95 (2023), confirming the same framework for a slip-on-ice case. Together, the cases tell Michigan trial courts to send open-and-obvious questions to the jury rather than dismiss them at summary disposition.
The Elements That Survived
Michigan still requires an invitee to prove the traditional premises-liability elements: a duty owed, breach of that duty, causation, and damages. The land possessor owes the invitee a duty to exercise reasonable care to protect against an unreasonable risk of harm caused by a dangerous condition on the land. Two old elements still matter:
- Notice. The possessor must have had actual or constructive notice of the hazard. Constructive notice still depends on how long the hazard was present and whether a reasonable inspection would have revealed it.
- Causation. The condition must have caused the injury. Speculation about which way the foot slipped does not survive summary disposition under Skinner v Square D Co, 445 Mich 153 (1994).
How Open and Obvious Now Operates
| Question | Pre-Kandil-Elsayed | Post-Kandil-Elsayed |
|---|---|---|
| Is open and obvious a no-duty bar? | Yes, except for special aspects | No. It is part of breach + comparative fault |
| Who decides? | Trial court at summary disposition | Generally the jury at trial |
| Does >50% claimant fault bar the case? | Open-and-obvious bar applied earlier | MCL 600.6304 modified comparative fault still bars noneconomic damages over 50% |
| Are “special aspects” still relevant? | Central | Folded into the reasonable-care analysis |
| Does notice still matter? | Yes | Yes — no change |
Black Ice, Wet Floors, and Common Fact Patterns
Several recurring Michigan slip-and-fall scenarios deserve specific attention under the new framework.
Black Ice and Snow Accumulation
Pre-Kandil-Elsayed, black-ice claims were routinely dismissed because Michigan winters made the danger “open and obvious.” After Kandil-Elsayed, the jury now weighs whether a reasonable possessor took adequate precautions (salting, plowing, signage) and whether the plaintiff’s own conduct (footwear, route, time of day) shares the responsibility. The “natural accumulation” doctrine for general winter conditions survives in narrower form.
Wet Tile and Grocery-Store Spills
Notice remains the key. Surveillance video and store-incident logs are often dispositive. A wet floor cleaned within minutes after a spill rarely establishes constructive notice; an unattended spill that sat for an hour usually does.
Sidewalk Defects and Governmental Defendants
Where the defendant is a governmental agency, the framework is governed by the Governmental Tort Liability Act. The 120-day notice requirement under MCL 691.1404 and the highway exception under MCL 691.1402 still apply. Kandil-Elsayed did not modify the GTLA architecture.
Comparative Fault Under MCL 600.6304
The post-Kandil-Elsayed framework leans heavily on Michigan’s modified comparative-fault statute, MCL 600.6304. A plaintiff more than 50% at fault recovers no noneconomic damages. A plaintiff 50% or less at fault recovers reduced damages. Economic damages are similarly reduced under MCL 600.2959. The jury, not the trial court, generally allocates fault.
Deadlines: The 3-Year SOL Still Controls
The general 3-year limitations period under MCL 600.5805 governs slip-and-fall claims against private possessors. For claims against governmental defendants, the 120-day notice under MCL 691.1404 runs in parallel and is unforgiving. Missing either is fatal.
Frequently Asked Questions
Did Kandil-Elsayed make every Michigan slip-and-fall case viable?
No. The decision removed the open-and-obvious no-duty bar but left every other element — duty, breach, notice, causation, damages, and comparative fault — intact. Cases without notice or causation still lose at summary disposition.
Does Kandil-Elsayed apply to my pre-2023 case?
The Court’s decision generally applies to cases pending when it was issued, subject to procedural-bar arguments in specific cases. Lower courts have continued to develop the retroactivity analysis. Older cases may benefit from the new framework if they were timely commenced and not yet final.
Are governmental defendants treated the same way?
No. The Governmental Tort Liability Act has its own exceptions and notice rules. The 120-day notice under MCL 691.1404 and the highway and sidewalk exceptions in MCL 691.1402 and 691.1402a continue to govern public defendants.
What about the “natural accumulation” doctrine for snow and ice?
It survives in narrower form. The general rule that a possessor is not liable for naturally accumulating snow and ice on areas it does not have a duty to maintain still applies. Where a possessor has assumed a duty to clear (or where a contract requires it), the post-Kandil-Elsayed framework applies fully.
If I was wearing flip-flops in winter, can I still recover?
Possibly. Footwear and route choices go to comparative fault under MCL 600.2959 and MCL 600.6304. The jury allocates the percentages. If the plaintiff is over 50% at fault, noneconomic damages are barred; at 50% or less, they are reduced.
How long do I have to file a Michigan slip-and-fall case?
Three years under MCL 600.5805 for private-property cases. For governmental defendants, the 120-day notice under MCL 691.1404 runs much sooner. Missing the GTLA notice can extinguish the case even when the 3-year SOL has not expired.
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