If you’ve been injured by a slip, trip, fall, or some other hazard associated with the land on which you were injured, you may entitled to bring suit against the possessor of the property to recover for your injuries. These cases are based in tort, and required you to prove the general elements of a negligence claim.

The Elements for Establishing Negligence in a Premises Liability Claim

There are four basic elements that you must prove in establishing a premises liability claim:

    1. That the Defendant owed you a legal duty;
    2. That the Defendant breached that duty;
    3. That Defendant’s breach of his or her legal duty was a proximate cause of your injuries; and
    4. That you suffered damages as a result of the Defendant’s breach of the legal duty.

Moning v Alfono, 400 Mich 425, 437 (1977).

Whether or not a hazardous condition is open and obvious will also play a major role in any premises liability claim. If a hazard is so open and obvious that a reasonable person would take care to avoid it, then the Plaintiff may be barred from making his or her claim. Although this issue is technically a defense that will be asserted by the Defendant in a premises liability claim, in practice, the issue of whether the hazard is open and obvious has become a fifth element which the Plaintiff must establish.

Possession and Control of the Property Gives Rise to the Legal Duty

The first step in a premises liability case is to establish that the Defendant owed you a legal duty, and the extent of the duty owed. Generally, a Defendant’s legal duty arises out of his or her possession and control over the property. Orel v Uni-Rak Sales Co, 454 Mich 564 (1997).

It is important to understand that this does not mean ownership of the property. In fact, the Michigan Supreme Court has found that, although ownership, possession, and control are often held by the same individual or entity, they are distinctly different concepts. Kubczak v Chemical Bank & Trust Co, 456 Mich 653, 662 (1997). Take, for example, the owner of a shopping complex, in which the owner rents individual store spaces to small businesses, but maintains the parking lot and sidewalk herself. In such a scenario, the business owner would likely be responsible for the injuries of a shopping center patron who fell in the parking lot, but would not be responsible if that same patron fell inside a store, because although the owner holds title to the store space, she is not in possession or control of that rented space at the time the injury occurs.

Determining the Extent of the Legal Duty Owed

Once it can be established which individual or entity holds possession or control of the land on which the Plaintiff is injured, and thus identifies the proper Defendant in the suit, the second step is to identify what legal duty that Defendant owes to the injured Plaintiff.

In Michigan, the extent of the duty owed by the possessor of land is dependent upon the purpose for which the Plaintiff was on the land at the time he or she sustained the injury. Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 596 (2000).  Michigan law has three distinct levels of Plaintiffs in premises liability cases, and each are owed different duties by the Defendant. Those duties are invitee, licensee, and trespasser, and the level of care owed by the Defendant will be dictated by the Plaintiff’s designation into one of these categories.

It is important to understand that an individual’s status on a particular property may change during the course of the visit. Because the duty owed by the land possessor to the injured Plaintiff is based upon the Plaintiff’s purpose and permission level for being on the property, it similarly figures that as the Plaintiff moves around the property, the corresponding duty level to the Plaintiff changes.

For example, Michigan courts have held that a social guest of a tenant of an apartment building is a licensee while in the tenant’s apartment, but becomes an invitee of the apartment building’s landlord while in the common areas of the building. Petraszewsky v Keeth (on remand), 201 Mich App 535 (1993). Similarly, a business invitee who wanders into restricted areas of the business establishment without first seeking permission becomes a trespasser in those restricted areas. Constantineau v DCI Food Equip, Inc, 195 Mich App 511 (1992).