Legal Framework: Duty, Invitees vs. Licensees, and the “Open and Obvious” Doctrine

In Michigan, premises liability law establishes that property owners or occupiers owe a duty of reasonable care to certain categories of visitors. Understanding which category a visitor falls into is often central to the outcome of a case:

• Invitees (e.g. customers of a business) receive the highest duty; owners must regularly inspect, identify hazards, remedy or warn about known unsafe conditions.

• Licensees – individuals allowed access but not for commercial benefit of the owner – typically have lower expectations of proactive inspections but must still be warned about known hazards.

• Trespassers – duty is much more limited.

Another critical doctrine is the “open and obvious” defense. If a hazard is so obvious that a reasonable person would have seen and avoided it, the property owner may avoid liability. However, what is “open and obvious” is not always clear, and recent case law has narrowed this defense in certain contexts, especially when foreseeability of harm is high or prior incidents show awareness of risk.

Recent Trends & Changes in Michigan

1. Greater emphasis on proactive maintenance and hazard mitigation

Insurers and courts are increasingly holding property owners accountable for conditions they could reasonably anticipate. Claims that once could be dismissed because a hazard was “not known” now may succeed if there is evidence such as prior complaints, maintenance logs, or service records showing awareness.

2. Tighter timelines and expectations in investigations

Michigan statute requires insurers to respond to claim notices “reasonably promptly” and to adopt reasonable standards for investigation. After notice of loss, insurers must, within 30 days, provide the claimant written notice of what constitutes satisfactory proof of loss, unless the claim is already settled. Failure to do so may violate MCL § 500.2026.

This timeline places pressure on adjusters to initiate inspections, collect evidence (photos, witness statements), and document everything clearly from the start.

3. Evolving court rulings on comparative versus contributory fault, and shifting burdens

Michigan courts continue refining how contributory or comparative fault (fault shared by claimant and property owner) is assessed. Claimants’ own negligence (e.g., failing to watch their step) can reduce awards, but does not always bar recovery. Adjusters must carefully document the scene, signs, warnings, maintenance, and any prior notice of hazard to substantiate defenses.

Investigation Best Practices: What Insureds & Adjusters Should Prioritize

To successfully manage premises liability claims — whether defending or resolving — these are core best practices:

• Rapid site inspection and photo/video documentation The sooner the site is inspected after notice, the more reliable the physical evidence (lighting, weather conditions, hazardous materials). Take wide shots and close-ups, show surroundings, signage, flooring, walkways, stairs, edges, thresholds.

• Maintenance & repair records Logs, inspection schedules, work orders. These help show whether a hazard was known or reasonably discoverable. If these are lacking, liability risk increases.

• Warning signage & barrier evidence Did the owner post warnings? Were barriers or guards in place? What was visible? These factors influence the “reasonable care” and “open and obvious” questions.

• Witness statements & third-party admissions Accounts from visitors, employees, or contractors who saw the hazard or had complained earlier are invaluable. They give context to how long a risk existed, and what the property owner’s response was.

• Policy compliance & adjuster protocol Ensure adjusters follow internal standards: documenting chain of events, interviewing relevant parties, avoiding premature admissions, and engaging subject matter experts as needed (structural, safety, environmental).

Defense Strategies & Resolution Outcomes

Given the legal standards and investigative expectations, property owners (insureds) can employ several strong defense strategies:

1. Open & obvious hazard If it truly meets rigorous criteria of “open and obvious,” this defense can be strong. But must document that hazard was visible, no reasonable way for owner to anticipate, or prior incidents, etc.

2. Comparative negligence Show that claimant had equal or greater opportunity to avoid harm. For example, wearing improper footwear, ignoring warnings, using an alternate route.

3. Lack of prior notice If owner never knew and had no reasonable way to know of hazard, defense becomes stronger. Absence of complaints, inspections, or prior incidents matters.

4. Mitigation of risk Demonstrating that property owner carried regular inspections, remedied defects promptly, posted warnings, installed slips/fall mats, maintained lighting, safe surfaces, etc., helps both at claim resolution and litigation.

5. Settlement leverage vs. litigation readiness Sometimes settling early can reduce legal costs and bad publicity; other times, mounting a strong case for defense (if liability is weak) can deliver better financial outcomes. Accurate reporting and credible expert testimony help decide which path is preferable.

Case Example (Hypothetical but Realistic)

Consider a commercial building in suburban Michigan. A customer slips on ice outside the entrance. The customer claims the store failed to clear ice, a “walkway hazard.” However, the store had a weather monitoring log, documented snow removal every 30 minutes during the storm, visible warning mats and signs, and lighting that illuminated the walkway. The claim is denied due to “lack of negligence” because the hazard was mitigated and reasonable care was shown. Documentation from inspections, timestamps on logs, witness statements that snow was cleared repeatedly, and early photographer evidence of ice conditions demonstrate strong defense.

What Clients Should Expect & Ask

When you hire an independent adjuster or you are an insured defending liability exposure, ask:

• Do you inspect hazards early and document them both visually and in written form?

• Do you obtain maintenance and repair histories, and check whether warnings or signage were used?

• How do you evaluate comparative negligence in claims?

• Do you bring in expert testimony (structural, safety, environmental) where needed?

• How is your file quality and defensibility—are reports clear, supported by evidence, timely?

Conclusion

Premises liability will continue to be a major source of liability claims in Michigan. As claimants, insureds, and adjusters navigate changing legal rulings, tightened timelines, and higher expectations for evidence, success depends on being meticulous from first notice of loss, gathering strong documentation, and applying defense strategies rooted in law and facts.

At Norman J. Blackwell Inc., we leverage over 45 years of experience to execute on these principles—early, ethical, and evidence-based adjusting. If you want a partner who understands Michigan premises‐liability law and how to protect your exposure, we’re here to deliver.