Royce v. CHATWELL CLUB APARTMENTS , 769 N.W.2d 220 ( 2008 )

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769 N.W.2d 220 (2008)
Theresa ROYCE and Carl Royce, Plaintiffs-Appellees,
v.
CHATWELL CLUB APARTMENTS, a/k/a Tobin Group, Defendant-Appellant.
Docket No. 134879. COA No. 266682.
Supreme Court of Michigan.
November 7, 2008.

Order

By order of January 22, 2008, the application for leave to appeal the August 7, 2007 judgment of the Court of Appeals was held in abeyance pending the decision in Allison v. AEW Capital Mgmt, LLP (Docket No. 133771). On order of the Court, the case having been decided on June 25, 2008, 481 Mich. 419, 751 N.W.2d 8 (2008), the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. Although the Court of Appeals relied on Allison v. AEW Capital Mgt., LLP (On Reconsideration), 274 Mich.App 663, 736 N.W.2d 307 (2007), and this Court subsequently reversed that decision in Allison v. AEW Capital Mgt, LLP, 481 Mich. 419, 751 N.W.2d 8 (2008), the Court of Appeals determination in the present case to remand for further proceedings because the trial court used a legally unsound basis for granting summary disposition to defendant with regard to MCL 554.139(1) is not in conflict with the reasoning set forth in this Court's opinion in Allison. The trial court on remand must determine whether the defendant owed a duty to the plaintiff under MCL 554.139(1) on the basis of the *221 evidence the plaintiff has presented in this case.

CORRIGAN, J., (concurring.).

I concur in the denial of leave to appeal so that the trial court can decide whether defendant is entitled to summary disposition under this Court's recent decision in Allison v. AEW Capital Mgt, LLP, 481 Mich. 419, 751 N.W.2d 8 (2008). I write separately only to express continued adherence to my concurring opinion in Allison. For the reasons expressed in that case, I continue to believe that the duty under MCL 554.139(l)(a) to keep the premises and common areas "fit for the use intended by the parties" extends only to significant, structural defects in the property, not to transitory conditions such as snow and ice accumulations. Id. at 442, 751 N.W.2d 8.

MICHAEL F. CAVANAGH, J. (concurring in result only.).

I agree with the order denying defendant's application for leave to appeal. I disagree with the order, however, to the extent that it implies that defendant's duty is dependent on the evidence presented in this case. Defendant has a statutorily mandated duty to plaintiff to keep all common areas, including sidewalks and parking lots, in a condition that is "fit for the use intended by the parties." MCL 554.139(l)(a). The duty is not dependent on the evidence; rather, the trial court must review the evidence to determine whether defendant violated the statutory duty it owed to plaintiff.

MARILYN J. KELLY, J., joins the statement of MICHAEL F. CAVANAGH, J.