Castles Made of Sand: Preparing for New Precedent in a Purple State
“Castles made of sand fall into the sea eventually.”
– Jimi Hendrix
Henry of Huntington was a 12th Century English historian whose work Historia Anglorum described the history of England from the earliest period through the accession of Henry II in 1154. The book recounts the legend of King Canute (or King Cnut) the Great, who ordered his courtiers to carry his throne to the seashore. Sitting on the royal throne, King Canute then commanded the incoming tide to halt and not to wet his regal feet and robes. The tide continued to advance, ignoring the royal edict.
The story of King Canute is a welcome warning to legal practitioners in Michigan, which is one of 24 states to use elections to fill the seats on their Supreme Court. While technically the elections are on a nonpartisan section of the ballot, that distinction is made less meaningful by the fact that the political parties nominate the candidates to be put on the ballot. In a purple state that is neither reliably Republican nor reliably Democratic, this means that the decisions of the Court are subject to wide fluctuations, like the tides of the sea.
Conservative Orientation in 2000s
In the 2000s, Republican-nominated Justices in Michigan held a 4-3 majority on the Michigan Supreme Court. During that time, many members of Michigan’s Plaintiffs’ Bar complained that the Court was abandoning precedent and was inevitably ruling in favor of corporations and against injured individuals. After a landmark decision by the Court held that there was no discovery rule for the statute of limitations for common law torts, “Getting Away With Murder” was the deliberately vague title by one commentator who did not specify whether the title referred to the murderer or the Court.
The ideological divisions on the Court during this era became intensely personal. One Justice on the majority described a Justice in the minority as “holding her breath until she gets her way. She hopes, as a child engaging in a tantrum, that one of the adults will give[] in and allow her to dictate.” This led to a gag order, Administrative Order 2006-08, passed by a 4-3 vote, that mandated the confidentiality of all internal correspondence, memoranda, and discussions. Following the retirement of that Justice in the minority, she wrote a book1 in which she lamented that “being on the Supreme Court was like dealing on a daily basis with hatred, lust – particularly lust for power – revenge, and deceit.”
Current Orientation in 2020s
In 2020, Democratic-nominated Justices regained a majority on the Michigan Supreme Court, which has since expanded to a 5-2 supermajority. It is not surprising that the Court’s decisions in personal injury cases reflect a new orientation. Now it is Michigan’s defense Bar who complains about the politicization of the Court and the overturning of precedent.
The case of Kandil-Elsayed v. F and E Oil Inc., 512 Mich. 95 (2023) was a long-anticipated case that ushered in a new era in Michigan jurisprudence. The Court reconsidered Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 516-517 (2001), in which the Court had held that a landowner does not generally owe a duty of care to its invitees if the alleged danger was open and obvious. Although the “open and obvious rule” included an exception if there was evidence of special aspects of the allegedly dangerous condition, the rule had been invoked to dismiss hundreds of premises liability cases in the intervening years after Lugo.
In Kandil-Elsayed, the Michigan Supreme Court overruled Lugo, holding that whether a danger was open and obvious is an issue relevant to breach and comparative fault, but not the landowner’s duty. The Court reiterated the longstanding proposition that land possessors owe a duty to exercise reasonable care to protect their invitees from an unreasonable risk of harm caused by a dangerous condition of the land. The Court held that the Lugo decision was a relic of a contributory negligence framework in a state that had shifted to pure comparative fault.
A recent decision of the Court reflects another move away from precedents that had been established in the 2000s. In Rayford v. American House Roseville I, LLC, _ Mich. _; 2025 WL 2177754 (2025), the Court considered the enforceability of contractual limitations periods, and reconsidered the earlier decision of Rory v. Continental Ins. Co., 473 Mich. 457 (2005). The Court in Rory had condemned judicial abrogation of contractual limitations provisions that were based on the Court’s independent assessment of reasonableness, and instead held that such provisions must be analyzed under basic contract principles.
In Rayford, the Court held that Rory was a “radical departure” from earlier precedent and ignored a long line of precedent treating adhesion contracts with skepticism. While the Court in Rayford did not overrule Rory, it limited the application of Rory to insurance contracts, and held that the reasoning of Rory did not apply in the context of adhesion employment contracts. Because the contract at issue in Rayford was an adhesion contract, the Court remanded the matter to the trial court to decide whether the contractual six-month limitations period was reasonable under precedent that predated Rory.
Conservative or Moderate Decisions of the Current Court
Although defense practitioners fear that today’s Michigan Supreme Court is unfairly biased in favor of Plaintiffs in a way analogous to the perceived defense bias of the Court in the early 2000s, there are indications that the Court is adopting a moderate position. For example, in Daher v. Prime Healthcare Services-Garden City, LLC, _ Mich. _; 2024 WL 3587935 (2024), the Court examined the availability of damages for lost future earnings in wrongful death cases. In Daher, the Plaintiff had sought $11 million to $19 million in damages for the Decedent’s alleged lost future earnings. Given an opportunity to review and potentially overrule another decision from the 2000s, Wesche v. Mecosta Co. Rd. Comm., 480 Mich. 75 (2008), Michigan’s Supreme Court instead held in a unanimous opinion that Michigan’s Wrongful Death Act enumerated the types of damages available and that lost earning capacity damages were not available.
Similarly, one of the frequent complaints of the Plaintiffs’ Bar in Michigan concerns the enforceability of statutory caps on noneconomic damages. In the 2000s, the Michigan Supreme Court upheld the constitutionality of the statutory caps. See, e.g., Phillips v. Mirac, Inc., 470 Mich. 415, 419 (2004). Some expected that as soon as it could, the newly constituted Michigan Supreme Court would overrule that precedent and strike the statutory caps.
It may be that the Court will eventually take up the issue, but it declined to do so when given a promising opportunity to do so. In the case of In re Certified Question from United States Dist. Ct. for E. Dist. of Michigan(Beaubien v. Trivedi), _ Mich. _; 21 N.W.3d 918 (Mich. 2025), a federal district court judge had held that the constitutionality of Michigan’s statutory cap on noneconomic damages in medical malpractice cases was unsettled, and certified the question for resolution by the Michigan Supreme Court. The Michigan Supreme Court declined the request to answer the certified question in a one sentence opinion. In a concurring opinion, Justice Cavanagh wrote that the certified question process is aimed to resolve unclear questions of state law, not to relitigate settled issues of law.
Conclusion
We are currently in a new era for the Michigan Supreme Court. Defense-side practitioners who are proceeding under the assumption that nothing has changed risk being caught unprepared and surprised by the changing tide. To incorporate the quote of Jimi Hendrix that leads this article, their defense strategy should not be built on castles made of sand. At the same time, plaintiff-side practitioners who expect that every defense-friendly decision from the 2000s will now be overturned are likely to be disappointed by a Court that has at times demonstrated caution.
A more contemporary musical artist, Cage the Elephant, was surely referring to the legal climate when the band warned of, “trouble on my left, trouble on my right.” Instead of following unrealistic expectations, the task of legal practitioners in today’s world remains the same as it has always been – preparation and informed evaluation of risks from whatever direction they might come.
Disclaimer: The opinions in this article are those of the author alone, and do not represent the views of the author’s employer or clients.
1 Judicial Deceit: Tyranny & Unnecessary Secrecy at the Michigan Supreme Court, by Chief Justice Elizabeth A. Weaver (ret.) and David B. Schock, Peninsula Press, 2013.