What Waterfront Homeowners Need to Know About Michigan Premises Liability

It’s a beautiful day on the lake—the sun is out, the birds are chirping, the kids are playing in the water, and everyone’s having a great time.

And then a neighbor gets hurt on your boat. Or you’re on someone else’s boat and you get hurt.

You’re now dealing with premises liability, which is an important subset of personal injury law. After all, every accident happens somewhere. But for lakefront property owners, Michigan premises liability can feel tricky—the water isn’t like a lawn easily demarcated by a fence. And if you live on publicly accessible water, it’s even trickier.

Here’s what property owners (and their visitors) need to know about Michigan premises liability law so that you can be responsible (and hold others responsible if necessary).

The Basics of Michigan Premises Liability Law

In personal injury law, premises liability comes into play where an injury was caused by an unsafe or defective condition on someone’s property.

Put another way, premises liability is your responsibility as a homeowner to keep your property in safe condition so that no one gets hurt there, or, as a visitor, it’s your right to not get injured due to unsafe conditions on someone else’s property.

Like other forms of personal injury, premises liability is based on the concept of negligence. In negligence, someone has a duty of care to another person, and because they failed that duty due to carelessness or recklessness, they are liable when the other person suffers an injury as a result. In a premises liability case, the plaintiff (the injured person) must prove that the defendant (the premises owner) failed to use reasonable care in maintaining the condition of their property, and the plaintiff suffered an injury as a result.

What are Your Duties to Others?

Under Michigan premises liability law, the duty owed by the premises possessor (the homeowner, for example) is dependent on the plaintiff’s status as an invitee, licensee, or trespasser at the time of injury.

A trespasser is someone who enters a property without the owner’s permission (express or implied), for the trespasser’s own amusement or benefit. Homeowners have a duty of care to trespassers insofar as homeowners cannot legally place pitfalls or traps to deliberately injure trespassers (willful and wanton misconduct), and once homeowners become aware of trespassers, it is their duty to exercise reasonable care and prevent the trespassers from getting injured. Child trespassers are owed a higher duty of care than adults.

A licensee is someone with the premises posesssor’s express or implied consent to enter onto their property, such as a social guest. A premises possessor has a duty to warn a licensee of hidden dangers the owner knows or has reason to know about (if the licensee does not know or have reason to know of such danger). The premises possessor does not owe a licensee a duty to inspect the premises to discover hidden dangers or an affirmative duty to make the premises safe. In other words, a licensee assumes the ordinary risks associated with their permitted entry onto another’s premises.

An invitee is someone you invite onto your premises where the invitation carries with it an implied representation that reasonable care has been used to make the premises safe. This is typically a person invited onto the premises for a commercial purpose or pursuant to contract. The premises possessor owes an invitee a duty to warn of known dangers, as well as a duty to inspect the premises and make them safe by repairing or warning of discovered hazards.

Premises Liability vs. General Negligence

There is a notable distinction between premises liability and general negligence.

In Michigan, premises liability is based on conditions in the defendant’s control, whereas general negligence is based on the defendant’s conduct. It sounds simple, but the distinction can be difficult to parse out in a legal case, and sometimes a lawsuit may proceed on both legal theories. This is where persuasive lawyering comes in—a skilled attorney will attempt to present an event in a manner more favorable to their client.

Factors Affecting Liability and What They Mean

In the premises liability versus general negligence calculation, the concepts of liability and fault are not cut and dry. They’re shaped by the unique facts involved in each individual incident.

In other words, your degree of liability (and someone else’s duty of care to you) is based on multiple considerations.

Possession and Control

First, all premises liability claims are couched on possession and control. In other words, in order to be held liable for someone’s injury, you must have possession and control the premises at issue.

If you’re a homeowner living in the waterfront home you purchased (by way of a mortgage, for example) you both own and possess the land, which means you are responsible for ensuring it remains safe. However, if ownership and possession are divided (landlords and tenants, for example), the general rule is that the person with possession and control is liable.

In premises liability law, a possessor is someone who occupies land with the intent to control it, someone who has been in occupation with intent to control the land if no one has subsequently occupied it, or someone who is entitled to immediate occupation if no one else is in possession of the land.

Accordingly, the person with legal title to the premises is not determinative of who may be liable in premises liability. One can be liable in premises liability for any injury resulting from one’s breach of the relevant standard of care as to a dangerous or defective condition on a premises that one possesses and controls. Landlords can be held liable even if they don’t hold title to a premises, but landlords are not held liable for injury in an area of the property under the tenant’s exclusive control.

Actual Notice or Constructive Notice

Let’s say that your dock is slippery or there are sharp rocks near your waterline. These simple facts do not automatically make you liable for injuries that result from them. You can only be held liable for injuries resulting from unsafe conditions on your property if you knew about them or if, in the exercise of reasonable care, you should have reasonably known about them. These concepts are known as actual notice and constructive notice, respectively.

This is important to understand because if you are injured on someone else’s property and can’t establish that they knew about the defective condition, the premises possessor may still be held liable based upon their constructive notice. For example, if poor maintenance of the drainage system resulted in puddles of water in the past, and the problem is not corrected, and someone slips and falls, due to such puddles at a later time, even though the premises owner was not present and aware of the puddles at that later time, the premises possessor was on constructive notice that such puddles would arise in the future until the issues with drainage system were corrected. Additionally, a defective condition can be present on the premises for such a period of time under the circumstances that the premises possessor should have reasonably known about it, such that they are on constructive notice.

What does Open and Obvious mean?

Another important concept in Michigan premises liability is the open and obvious doctrine.

We noted earlier that if you invite someone into your home (licensees or invitees), they are owed a certain duty of care. The open and obvious doctrine is an exception to this rule. Under this doctrine, you are not liable for someone’s injury by a condition on the premises if it was open and obvious to an average person upon casual inspection. The social guest (licensee) or invitee, the guest is expected to recognize the defective condition and keep themselves safe.

The open and obvious doctrine does not apply if certain “special aspects” are present, such as if the open and obvious danger is “effectively unavoidable” (such as a the only exit from a building being iced over) or the it presents an unreasonable risk of harm (such as an unguarded 30-foot-deep pit in the middle of a parking lot). In those cases, the premises possessor is once again responsible for protecting their guest.

What is Comparative Negligence?

Now, there are some cases when multiple parties are at fault for what happened. This is when comparative negligence kicks in.

Under comparative negligence, a jury recognizes that multiple parties are at fault for an incident and allocates a percentage of fault. Each defendant party pays their share of the plaintiff’s damages based on their percentage of fault (and plaintiff obvious does not recover for their percentage of fault).

Three cases demonstrate this the concept of comparative fault: Placek v City of Sterling Heights, 405 Mich 638 (1979), Jennings v Southwood, 446 Mich 125, 130 (1994), and Zalut v Anderson & Associates, Inc, 186 Mich App 229, 234 (1990). In Placek, Michigan switched to a pure comparative negligence system, and in the other two cases, the plaintiff’s jury award was reduced to their percentage of negligence in the incident.

Examples of Premises Liability Cases for Michigan Waterfront Homeowners

So, what are some cases where premises liability applies? Common examples include things like:

• Drowning
• Slip-and-fall accidents
• Electrocution
• Diving accidents
• Toxic mold
• Inadequate signage
• Children injured due to improper fencing
• Boat-related injuries
• Defective retaining walls
• Flooding
• Failure to repair known dangers
• Failure to address dangerous animals
• Failure to obtain necessary permits
• Compromised structural integrity of the home

Now, let’s say you open up your lakefront for recreational use. Let’s say you have a private beach, and someone gets injured on your property. That was the case in Otto v. Inn at Watervale, Inc., 501 Mich 1044 (2018), where a young girl (licensee) building sandcastles on the defendant’s private beach maintained burned her foot on buried coals. The case presented an issue of whether the landowner knew or should have known of the buried coal. Further, under the Recreational Land Use Act, (“RUA”), MCL 324.73301(1), landowners have a degree of protection when a non-paying person using their property for specified outdoor recreational purposes is injured on their property. The girl’s beach play was found to be covered by the RUA, such that the properly owner could only be held liable if their conduct is grossly negligent or they behaved with willful or wanton misconduct.

The Michigan Premises Liability Attorneys You Need to Fight for You

We know that Michigan premises liability law can be confusing and stressful for homeowners and guests alike. You want to have a good time on the lake, but sometimes, things go horribly wrong. That’s when you need an attorney experienced with premises liability to help you.

At Giroux Pappas Trial Attorneys, our experienced and knowledgeable team excels at delivering the best possible outcome for our clients. For us, it’s about more than just applying our decades of experience in federal and state circuit courts—we treat every client with the same care and compassion we would give our own loved ones, taking the time to understand your needs so that you can make the right decision.

If you need to speak with an attorney about your options, schedule your free consultation today.