Michigan Slip and Fall After Kandil-Elsayed: The New Map

By Attorney Manny Chahal · Updated May 2026 · Reading time: ~8 min

For three decades, an open-and-obvious hazard was a near-automatic loss for the injured plaintiff in Michigan. Kandil-Elsayed v. F & E Oil, Inc., 512 Mich 95 (2023) changed that on July 28, 2023. Open and obvious is no longer a complete defense; it is a comparative-fault factor for the jury. The Court of Appeals confirmed in Gabrielson v. The Woods Condominium Ass’n (Mich Ct App 2024) that the new rule applies retroactively to every pending case. Premises owners have pivoted to a different defense: lack of notice.

The Old Rule: Lugo and the Three-Decade Wall

From 2001 until July 2023, the Michigan Supreme Court’s decision in Lugo v. Ameritech Corp., Inc., 464 Mich 512 (2001) controlled every Michigan slip-and-fall, trip-and-fall, and stairway case. Lugo held that a premises possessor owed no duty to protect invitees from dangers that an average user would have discovered on casual inspection. If the trial judge labeled the hazard open and obvious as a matter of law, the case ended at summary disposition. Plaintiffs could overcome that label only by proving “special aspects” — that the hazard was effectively unavoidable or unreasonably dangerous despite being visible — and the special-aspects test was applied so narrowly that most claims failed before they reached a jury.

The practical result for decades: pothole, ice patch, wet floor, unmarked step, raised sidewalk — if a reasonable person could have seen it, the premises possessor walked away. Catastrophic injuries went uncompensated because the law collapsed the entire negligence inquiry into a single question about the hazard’s visibility.

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

In a 5-2 decision authored by Chief Justice Elizabeth T. Clement, the Michigan Supreme Court consolidated two slip-and-fall appeals — Kandil-Elsayed v. F & E Oil (gas station ice) and Pinsky v. Kroger Co. (grocery-store cable) — and overruled Lugo. The Court returned premises liability to the framework of Restatement (Second) of Torts § 343A.

Two doctrinal consequences flow from the decision. First, the special-aspects test is gone. Plaintiffs no longer need to shoehorn cases into “unreasonably dangerous” or “effectively unavoidable” categories to survive summary disposition. Second, the case proceeds to a jury under MCL 600.2959, Michigan’s modified comparative-fault statute. A plaintiff who is 50% or less at fault can still recover, with the award reduced by the plaintiff’s percentage of fault; a plaintiff more than 50% at fault is barred from non-economic damages but may still recover economic damages.

Gabrielson: The Retroactivity Rule

The first major question after Kandil-Elsayed was how far back it reached. Premises possessors argued the new rule should apply only prospectively, leaving cases already pending under Lugo dead in the water. The Court of Appeals rejected that position in Gabrielson v. The Woods Condominium Association, Inc., holding that Kandil-Elsayed applies retroactively to all cases pending in any Michigan court on July 28, 2023.

That ruling effectively revived hundreds of slip-and-fall cases that had been dismissed under Lugo — trial-court dismissals on appeal, post-trial appeals, and cases on remand. If your case was working its way through the courts on the date of decision and was decided on open-and-obvious grounds, Gabrielson is your roadmap back to the trial docket.

The Old Map vs. the New Map

The New Defense Frontier: Lack of Notice

With open-and-obvious off the table as a duty-killer, defense counsel has pivoted to lack-of-notice motions. The argument is straightforward: a premises possessor is liable only for hazards the possessor knew about or should have known about. If the plaintiff cannot prove notice, the case fails on the breach element.

Actual notice

The possessor or its employees actually knew the hazard existed. Examples: a manager wrote a maintenance ticket, a customer complained at the front desk, an incident report described an earlier near-miss, or surveillance video shows an employee observing the condition.

Constructive notice

The possessor should have known. Constructive notice is proven by (a) showing the hazard existed long enough that a reasonable inspection would have found it, or (b) showing the hazard was the type that recurs in the location, such that a reasonable inspection schedule would have caught it. Tracked-in slush at a grocery entry, dripping refrigeration cases, and parking-lot ice patches that re-form after every freeze cycle are classic constructive-notice patterns.

Practical Playbook After a Slip and Fall in Michigan

The new doctrinal framework rewards thorough fact development. Take the following steps the day of the fall or as soon as practical thereafter.

• Report the incident in writing. Ask the manager to complete an incident report and request a copy. The store’s own report is often the cleanest proof of actual notice and the timeline.
• Preserve the scene. Photograph the hazard from multiple angles before anyone cleans it. Photograph footwear, lighting, signage, warnings, mats, and the surrounding floor or surface.
• Identify witnesses. Names and contact information. Bystanders frequently move on and become impossible to locate later.
• Send a preservation-of-evidence letter. Demand the possessor preserve surveillance video, sweep logs, maintenance records, and any incident reports for at least the prior 72 hours. Most retailers overwrite video within 7 to 30 days.
• Get medical care promptly. Document every symptom. Delays in treatment are the most exploited weakness at trial under the comparative-fault analysis.
• Calendar the deadline. File suit within three years of the fall under MCL 600.5805(2). Shorter notice periods apply if the defendant is a governmental entity; a 120-day notice may be required under MCL 691.1404.

Comparative Fault: How a Jury Will Apportion Blame

Once a premises case reaches a jury post-Kandil-Elsayed, the jury answers two questions: (1) what percentage of the injury is attributable to the possessor’s failure of reasonable care, and (2) what percentage is attributable to the plaintiff’s failure to use reasonable care for their own safety? The total damages are then reduced by the plaintiff’s percentage.

The obviousness of the hazard is one piece of evidence on each side of that calculation. A defendant who can show the hazard was easily seen and easily avoided argues for a high plaintiff percentage. A plaintiff who can show distraction was reasonable (carrying a heavy item, attending to a child, the hazard partly concealed by snow drift, a normal traffic pattern through the area) argues for a low percentage. Under MCL 600.2959, a plaintiff more than 50% at fault cannot recover non-economic damages such as pain and suffering, although economic damages remain available.

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