Michigan Kandil-Elsayed v. F & E Oil (2023): Snow, Ice

Quick Answer

In Kandil-Elsayed v F & E Oil, Inc (Mich, July 28, 2023, decided together with Pinsky v Kroger Co of Michigan), the Michigan Supreme Court overruled Lugo v Ameritech and held that the open and obvious nature of a hazard goes to breach and comparative fault, not to whether the land possessor owed a duty. The lead case involved a snow-covered path at a gas station.

For condominium and HOA boards, the practical point is that "the snow was obvious" is no longer a duty defense on its own. A possessor still owes invitees a duty of reasonable care, and the Court said a possessor must take reasonable measures within a reasonable time after an accumulation of ice and snow. MCL 559.209 separately says the association and co-owners are not liable for the developer's torts in common elements.

At a Glance

The Dispute

Kandil-Elsayed stopped for gas at a station on a snowy evening. The path between the pump and the building was covered in snow and, in the Court's description, "did not appear to have been shoveled or salted." She believed there was ice under the snow and fell. She admitted she could clearly see the snow, and she argued the condition was effectively unavoidable. The trial court granted summary disposition for the station and the Court of Appeals affirmed.

In Pinsky, a shopper tripped over a thin cable strung across a checkout lane to show it was closed. The trial court denied summary disposition, and the Court of Appeals reversed, treating the cable as open and obvious. Pinsky is not a snow and ice case.

What the Court Held

Lugo overruled in two respects

• "We overrule Lugo's decision to make the open and obvious danger doctrine a part of a land possessor's duty. Rather, we hold that the open and obvious nature of a condition is relevant to breach and the parties' comparative fault."
• The Court overruled the special-aspects doctrine and held that "when a land possessor should anticipate the harm that results from an open and obvious condition, despite its obviousness, the possessor is not relieved of the duty of reasonable care."

What remains the same

The Court reaffirmed that a possessor owes invitees a duty "to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land." The three status categories (licensee, invitee, trespasser) remain, and the Court did not adopt a blanket duty of reasonable care. It said its decision "does not alter the standard of reasonable care owed to an invitee."

How the framework works now

The Court described the fact-finder as considering, in the breach inquiry, whether the condition was open and obvious and whether the possessor should have anticipated harm anyway. If breach, causation and harm are shown, the jury considers the plaintiff's comparative fault and reduces damages accordingly. Breach is generally a jury question, but a court may still grant summary disposition under MCR 2.116(C)(10) when no genuine issue of material fact remains.

Snow and ice

Citing a pre-Lugo case, Quinlivan, the Court said a possessor owes a duty "to use reasonable care to protect against hazards arising from natural accumulation of ice and snow," which "will require that reasonable measures be taken within a reasonable time after an accumulation of ice and snow to diminish the hazard of the injury to the invitee." Fact questions remained about when it began snowing, whether it had stopped, whether reasonable measures were taken in a reasonable time, and whether the hazard was open and obvious. The plaintiff's testimony about her ability to see the snow and "the prevalence of wintry conditions in Michigan more generally" were described as relevant to comparative fault.

The Court answered a dissent's warning that owners must now clear every snowfall by saying "[o]nly a distorted reading of this opinion could support such a conclusion."

Disposition

The summary disposition in Kandil-Elsayed was reversed and remanded for further proceedings. In Pinsky the Court held that questions of fact remain on breach and remanded for further proceedings.

Why It Matters for Associations

• Our reading: an association that controls common-element walkways and parking is a land possessor, and an owner or guest who falls there may argue the possessor owed a duty. The opinion did not involve a condominium, so how it applies to a given association depends on its documents, the visitor's status, and counsel's analysis.
• An obvious snow or ice hazard may still reduce a plaintiff's damages through comparative fault, but it does not by itself eliminate the duty.
• Documented, timely snow and ice routines are relevant to whether "reasonable measures" were taken within "a reasonable time." The opinion did not set a number of hours or inches.
• MCL 559.209 says that "[n]either the association of co-owners nor the co-owners, other than the developer, shall be liable for torts caused by the developer or his agents or employees of the developer within the common elements." It addresses the developer's torts, not the association's own snow removal.

Limits of what we read

We read the majority opinion through its Kandil-Elsayed analysis. The text we could access ended partway through the Pinsky discussion, so we did not read the end of the Pinsky section, the concurrence, or the dissents in full. We rely on the Court's syllabus for what the separate opinions say. We did not review how Michigan courts have applied the case to condominium associations since 2023.

Related Michigan Law

• Michigan condo liability to short-term guests (Letvin)
• Janini v. London Townhouses
• Developer tort liability (MCL 559.209)
• Are Michigan HOA board members personally liable?
• HOA vendor management in Michigan

Board Checklist

• Confirm in your documents who maintains each walkway, drive and parking area, and who clears snow.
• Keep dated records of plowing, salting and inspection, including times.
• Review the snow contractor's contract for response triggers and insurance.
• Set a procedure for reports of icy or hazardous spots.
• Notify the association's insurance carrier promptly of any fall incident.
• Do not assume an obvious hazard ends the association's duty.
• Ask counsel how the association's insurance and contracts address a fall claim.

Frequently Asked Questions

Did the Michigan Supreme Court end the open and obvious doctrine?

No. It moved the doctrine from duty to breach and comparative fault. It remains relevant to both.

Does a property owner have to clear snow immediately?

The Court said reasonable measures must be taken within a reasonable time after an accumulation. It rejected a reading that would require clearing during or after every snowstorm.

Was the case about a condominium?

No. It involved a gas station and a grocery store.

What does MCL 559.209 do?

It says the association and co-owners, other than the developer, are not liable for torts caused by the developer or its agents or employees within the common elements.

Can an injured person's own carelessness reduce recovery?

Yes. After breach, causation and harm, the jury considers comparative fault and reduces damages accordingly.

Is there an official reporter citation?

We did not verify one. Cite by docket numbers 162907 and 163430 and decision date July 28, 2023, and ask counsel for the reporter cite.

Where This Comes From

We read the Michigan Supreme Court opinion in Docket Nos. 162907 and 163430 (decided July 28, 2023) as posted by the court and on Justia, through the point where the posted text ended partway through the Pinsky analysis, and MCL 559.209 on the Michigan Legislature website. This page is therefore marked partial. Official site: MCL 559.209.

How APM Helps

Association Property Managers manages condominium and HOA communities across Michigan from our East Lansing office, with flat, published pricing. See our Michigan service area, browse every Michigan state-law guide, or request a free proposal. Laws and documents differ by community, and we review your master deed and bylaws when we build your proposal.

Legal disclaimer: This article is general information, not legal advice. Laws change and associations differ. Confirm the current statute text and how it applies to your governing documents with a licensed Michigan attorney before acting.