Slip & Fall/Negligence

Under Stitt v Holland Abundant Life, a 26 year-old case, the duty of care a property owner owes depends entirely on whether the visitor (who ultimately gets hurt and sues) is an “invitee”, a “licensee”, or a “trespasser”

“Invitees” are people who come to the property to do business, or to otherwise confer some type of benefit on the landowner. The highest duty of care (to warn of hazards and to correct them) is owed to visitors on the property.

The next, and more relaxed duty status is the class of persons known as “licensees”. These are people who are there for their own purposes, typically social guests. The duty landowners owe licensees, is only to warn the licensee of any hidden dangers the owner knows or should know about; there is no duty to inspect for hazards, as owners are required to do, for the benefit of invitees

Finally, a “trespasser” is one who enters another’s land, without consent. The landowner owes such people no duty, except to refrain from injuring them by “willful and wanton” misconduct.

Cases sometimes turn on these seemingly arcane and legalistic distinctions. Yes, you need a lawyer to help you navigate these treacherous waters. Give Jon Frank a call today, at (586) 727-1900

Bowerman v Red Oak Management Co

In Bowerman, a July 2026 case, a contractor created a hazard, while working on the property, and left that hazard, after completing its work. Bowerman was important for a number of rulings:

Contractors previously could defend themselves by saying that their work was over, and they no longer had any control over the property. The Michigan Supreme Court rejected that defense.

Using a Michigan statute, MCLA §554.139, the Court ruled that residential leases imply a promise by the landlord, that the property and all shared common areas, are fit for the use intended by the parties. The dangerous condition in Bowerman was a trench left by the contractor, near a trash dumpster that everyone had to use, in order to dispose of their garbage.

Before Bowerman, landlords could defend against hazardous condition claims, simply by labeling them as “mere inconveniences”. Under Bowerman, this “merely inconvenient” status was “demoted” in importance from dispositive to relevant; in other words, this label no longer will torpedo, what is otherwise a solid premises claim.

Finally, the Bowerman Court held that the injured Plaintiff’s knowledge of the dangerous trench near the garbage dumpster, did not defeat her claim, although her pre-accident knowledge was relevant to a finding of comparative negligence. It was relevant in the specific context of Bowerman, that the property was promoted for rental, as being friendly and conducive to elderly residents.

In Letvin v Village at Grand Traverse Commons, This concept was expanded to condominium situations, where the accident took place in a common area. The Michigan Court of Appeals held in July 2026, that a short-term rental gues of a condo owner was an invitee of the condo association, owed a duty of care.

The case of Kandil-Elsayed v F&E Oil may be three years old, but its changes to Michigan slip & fall law are still big enough to talk about.

If a hazard causing an injury is “open and obvious”, then the law allows either no recovery of monetary damages, or a potentially reduced recovery.

Before Kandil-Elsayed, if the hazard causing an accident on someone else’s property was deemed “open and obvious” (which was defined in a 1993 case as “readily observable upon casual inspection”) the law said the property owner had no duty, and thus no responsibility to pay.

Under Kandil-Elsayed, the question of whether a hazard is “open and obvious” is now a question of fact for a jury, instead of being a question of law for a judge. This often has a significant impact on whether a monetary settlement can be achieved. The law is again more forgiving to the injured person, although the issue of the openness and obviousness of a hazard is still relevant on the subject of “comparative negligence”, and may reduce a monetary recovery.

Call Jon Frank at (586) 727-1900 with any questions.

Traditionally, Michigan courts held that “snow & ice happen” during Michigan’s winters, were therefore “open and obvious”, and no monetary recovery could be had, for accidents on snow and/or ice.

As a result of Kandil-Elsayed, accidents on snow and/or ice are handled in the same manner as any other hazard, a question of fact for a jury to consider, with possible “comparative negligence” effects on a verdict/settlement.

Should you rely on your personal injury lawyer to refer you to the doctors you need to present a winning case? Yes and no; no and yes. Let me explain.

In most cases, by the time of our initial attorney-client meeting, my clients have at least been examined by an emergency room doctor, or they have seen their own doctor, for follow-up, in the immediate post-accident period. Usually, it is best for personal injury clients to obtain treatment from their own providers, and to get referrals to specialists, from their own doctors.

Lawyers vary in their opinions as to whether it is helpful, or hurtful to a client, to be the one to direct a client’s medical treatment.

 How can it hurt to have a lawyer refer you to “one of their doctors”? First of all, lawyers are not medical doctors, and nobody but a medical doctor, should direct a client’s medical treatment.

Next, once a case starts, and the insurance company hires a defense attorney, that attorney will have the right to subpoena your doctors’ medical records. In plain English, the insurance companies and their lawyers get to see the records. All of them. 100%. Everything from “soup to nuts”, including the fact that the lawyer (who has an economic incentive, they say, to make the injuries seem worse than they are) referred the patient to the doctor. It does not always look great.

When you file a claim for personal injury, you make your current and past medical history a valid issue in your case, and you cannot obstruct the insurance company’s efforts to get your medical records. Your lawsuit, and your claim for personal injury benefits entitled them to see these records. When they do see these records, if the case was referred by a lawyer, there will usually be some note in the file to that effect.

Why does that matter? Because it opens up that doctor’s findings to a charge that they were fabricated, to make you look injured worse than you really were. Insurance companies argue, with some success, that the doctor relies on attorney referrals, to keep his/her (i.e., the doctor’s) business afloat. As a result, the doctor knows that if the attorney sends a client over, and the doctor does not support the client’s injury claims in the medical records, then that stream of referrals will come to an end.

(This situation is actually much more common, in the reverse situation, where the insurance company and its lawyers send an injury claimant to a doctor whom they refer in, to provide an evaluation, in support of the insurance company’s position. However, that is a topic for another article.)

In some situations, the doctor sees the patient/injury claimant “on a lien basis”, meaning that the doctor is willing to see the patient, without demanding payment/proof of health coverage, at the time of examination or treatment. The doctor is paid when there is a financial recovery.

Where the evidence shows that the doctor saw the client “on a lien basis”, insurance companies often successfully argue that the doctor has a financial interest in the outcome of the client’s personal injury lawsuit, and therefore, his/her opinions cannot be trusted. The financial interest the doctors have, is that they will not be paid, unless and until the client wins their lawsuit, or gets a financial recovery.

As well, some doctors have become so identified with certain attorneys, that just knowing which lawyer had the case, would tell you which doctor saw the client. Some lawyers will tell you that if they can put a cooperative doctor, or medical service provider on a client’s case, they will always get a better financial recovery for the client. As a practical matter, that is not always the case.

Sure, sometimes the recoveries are great, when the lawyer sets up the medical treatment, but sometimes not. In fact, you will not hear any of the big TV advertisers admit that when they do refer clients to doctors, that their client recoveries on average, are no better, when the client seeks his/her own medical treatment. The most well-known of the TV advertisers will also not admit that like any other lawyer, they get their cases thrown out of court – including those where they have referred in the doctors.

Personal injury clients are routinely sent to insurance company doctors (called “independent medical examiners”, or IME’s; sometimes they are referred to as “defense medical examiners” or DME’s).  Whatever their name, these are doctors who are often nothing more than “opinion writers for hire” who prostitute out their medical degrees and credentials. When this happens in your case, I need to be able to call out the insurance companies for “gaming the system”, and for trying to mislead juries and courts, without exposing my clients to the same accusation.

In short, it is usually best for the client to get their own medical treatment, and to arrange referrals to specialists, by their own doctors, or by sources that have nothing to do with me.

Is There Any Time an Attorney Referral to a Doctor is Appropriate?

Yes. And yes, I have referred clients to doctors, though I do try to avoid doing so.

The purpose of medical treatment, is to help provide healing from sickness or injury. The purpose of medical treatment is not to cynically support shaking down insurance companies, just because that can be done.

Insurance companies are often guilty of some of the worst, most cynical, even fraudulent behavior; however, that does not excuse getting into the muddy excrement with them, “because everyone does it”. In fact, many insurance companies conduct themselves professionally, and appropriately.

Even when they do not, and even when they do stoop to low behavior, my clients do better when they and I conduct ourselves honorably, and above board. Juries and judges appreciate this, and they reward us accordingly.

I refer clients to doctors, when the client needs medical care, but has no health insurance, and no access to any other type of coverage. I try to get doctors to take these cases on the lien basis, that I referred to above, in the hope that a recovery will pay the doctor; I make no apology for doing whatever I can to help my clients get medical care in these situations.

While I still have the same qualms about my name showing up in a doctor’s file, as a referral source, those qualms have to take a back seat to my clients’ urgent needs for medical care.

This is consistent with my mission statement at The Frank Law Firm, PC: to leave my clients in a better position than I found them. Give me at call today at 877-FRANK-LAW. I will do whatever I can to help.

Public Sidewalks

Under Michigan law, MCLA §691.1402a, we must be able to prove that the municipality responsible for the sidewalk had actual knowledge for at least 30 days, of the defect causing your injury.

Another way to establish liability against the local municipality is to show that had they been reasonably diligent in maintaining the sidewalk, they would have discovered the defect. If the defect is a “vertical discontinuity”, or a raised sidewalk, that height difference must be at least two inches.

Public Buildings

You can make a claim against a government agency for an injury in a building maintained by that agency, under MCLA §691.1406, if all of the following conditions can be established:

1. The building is associated with a government agency, and is open for use by members of the public;

2. A dangerous or defective condition exists in the building;

3. The government agency responsible for the building had actual/constructive knowledge of the alleged defect; AND

4. The government agency responsible for the building failed to do anything to remedy the defect.

NOTE: Suits against the government are subject to strict “notice of claim”, within 45 days, under MCLA §691.1419; to protect my clients, I try to get those “notices of claim” in, within 14-20 days of an accident. Failure to submit the “notice of claim” may result in a good case, with serious injuries, being dismissed.