Smart Michigan Business Transactions Prevent Injury Claims

Why Injury Risk Belongs in Your Deal Checklist

Every acquisition, lease, vendor agreement, or franchise deal changes who controls property, equipment, and people—key drivers of injury exposure. Integrating safety, compliance, and insurance planning into transaction documents helps prevent accidents and narrows disputes when incidents occur. In Michigan, duties generally arise from premises control and entrant status, as clarified in decisions such as Stitt v. Holland Abundant Life Fellowship and Lowrey v. LMPS & LMPJ, Inc. Aligning contract language with day-to-day operations is essential to avoid gaps between paper and practice.

Map Control and Duty: Who Is Responsible for Safety?

Clarify which party controls premises, equipment, and work methods. Identify who inspects, maintains, and repairs structures, parking lots, lighting, snow and ice conditions, loading docks, and customer areas. Allocate responsibilities for contractor oversight and visitor safety. Clear delineation of possession and control informs who owes duties to entrants and supports correct insurance placement. See, for example, Michigan’s focus on control in Merritt v. Nickelson and the invitee-duty standards summarized in Lowrey.

Contract Terms That Reduce Injury Exposure

Consider adding:

• Indemnity and defense provisions tailored to specific activities, with carve-outs that comply with Michigan’s construction anti-indemnity statute (MCL 691.991), which voids agreements requiring a party to indemnify for the promisee’s sole negligence in construction-related contracts.
• Additional insured requirements on CGL, products/completed operations, and umbrella policies; specify primary and noncontributory status and waivers of subrogation where appropriate. Well-crafted endorsements can shift defense and indemnity to the at-fault party’s insurer, subject to policy language (see duty-to-defend principles in Frankenmuth Mut. Ins. Co. v. Masters).
• Certificates of insurance plus copies of key endorsements before work begins, with continuous monitoring and audit rights.
• Safety compliance clauses requiring adherence to applicable statutes and regulations, written safety plans, and immediate incident reporting.
• Maintenance and inspection protocols for premises and equipment, including documentation and retention periods.
• Contractor qualification standards, including training, supervision, and background checks where appropriate.
• Change-in-conditions and snow/ice response obligations for Michigan winters, including trigger criteria, response times, and recordkeeping.
• Dispute resolution and venue clauses aligned with your risk strategy.

Due Diligence: Safety, Insurance, and Claims History

Go beyond financials. Review injury logs, incident reports, OSHA correspondence, and maintenance records. Confirm existence, limits, and key exclusions of liability, auto, workers’ compensation, and umbrella policies. Verify additional insured endorsements and completed operations coverage. Assess open and prior claims, reserve levels, and remedial measures. Inspect high-risk areas: parking lots, ingress/egress, stairs, handrails, lighting, refrigeration, loading areas, machine guarding, and contractors’ work zones.

Premises Liability: Practical Steps for Michigan Properties

Michigan premises cases often turn on notice, control, and the reasonableness of maintenance. The Michigan Supreme Court’s 2023 decisions in Kandil-Elsayed v. F & E Oil, Inc. and Pinsky v. Kroger Co. of Michigan confirmed that even open and obvious conditions do not eliminate the duty to exercise reasonable care; instead, those issues typically inform breach and comparative fault. Practical measures include:

• Written inspection schedules with photographs and logs (helpful to show reasonable care and address notice; see notice concepts in Kennedy v. Great Atlantic & Pacific Tea Co.).
• Documented snow and ice removal protocols that address freeze-thaw cycles and refreezing, with time-stamped records.
• Prompt remediation of known hazards, cones/signage, and customer routing during cleanups.
• Lighting audits, camera coverage of entrances/exits, and incident response checklists.
• Vendor contracts that tie payment to maintenance performance and documentation.

Contractor and Vendor Management

Third-party work is a common source of claims. Use prequalification questionnaires, require site-specific safety plans, and hold kickoff meetings covering hazards, reporting lines, and stop-work authority. Tie indemnity and insurance to the actual scope of work. Monitor compliance with periodic spot checks and preserve records. Ensure subcontracting requires equal or greater protections via flow-down clauses.

Employee and Customer Injury Interfaces

Coordinate your workers’ compensation, premises, and auto protocols. Train staff on hazard recognition, incident reporting, and preservation of evidence. Standardize how you collect witness statements, video, photos, and maintenance logs immediately after an incident. Communicate claims-tender procedures to risk management and broker partners so defense and coverage rights are addressed without delay (see the importance of satisfying notice/condition-precedent provisions, e.g., DeFrain v. State Farm).

Products, Warnings, and Assumed Duties

If your transaction includes products or equipment, review warnings, instructions, installation, and maintenance responsibilities. Avoid inadvertently assuming duties you don’t intend—such as safety inspections—without proper controls and insurance. Where you do assume duties, define scope, frequency, standards, documentation, and limitations of reliance.

Cyber and Data Considerations Affect Injury Claims

Camera systems, point-of-sale devices, and telematics create valuable evidence. Address data retention, access rights, and confidentiality in your contracts. Ensure incident videos and records are preserved under a litigation hold to avoid spoliation issues and sanctions under Michigan court rules (see MCR 2.313).

When a Claim Happens: Early Actions That Matter

Activate your incident response plan: secure medical help, preserve the scene, notify insurers according to policy conditions, and tender to responsible vendors or landlords where contractually appropriate. Implement a written hold on relevant records and video. Coordinate with counsel before making statements or offering payments that could affect coverage or admissions. Timely notice helps protect coverage rights, and preservation minimizes spoliation risk (see MCR 2.313 and DeFrain).

Tailoring for Your Industry

Retail, hospitality, logistics, manufacturing, healthcare, and real estate each present unique hazard profiles. Customize inspection frequencies, snow and ice plans, vendor scopes, and insurance requirements to reflect traffic volume, operating hours, and environmental conditions common in Michigan. Comparative fault apportionment and several liability under MCL 600.2957 and MCL 600.2959 further underscore the value of clear allocations and documented practices.

FAQ

Do open and obvious hazards eliminate duty in Michigan?

No. After Kandil-Elsayed and Pinsky, open and obvious generally informs breach and comparative fault, not the existence of a duty to exercise reasonable care.

Can I transfer all injury risk to a contractor?

Not entirely. Michigan’s anti-indemnity statute limits certain construction indemnity, and insurers/policies control coverage. Allocate control and require targeted insurance.

What records most often decide premises cases?

Inspection and maintenance logs, snow/ice records, incident reports, video, and proof of notice or remediation timing.

When should I tender a claim to another party?

As soon as you identify contractual or additional insured rights. Follow policy notice conditions to protect coverage.

Ready to tailor these tools to your deal? Contact us.

Michigan-specific disclaimer: This post provides general information about Michigan law and business/injury-prevention strategies. It is not legal advice and does not create an attorney-client relationship. Laws change and outcomes depend on specific facts. Consult qualified Michigan counsel about your situation.