Alvena Lloyd v. Millbrook Apartments LLC ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ALVENA LLOYD, UNPUBLISHED
February 1, 2022
Plaintiff-Appellant,
v No. 356055
Kent Circuit Court
MILLBROOK APARTMENTS, LLC, LC No. 2019-010243-NO
Defendant,
and
MILLBROOK APTS 2, LLC, MILLBROOK APTS
3, LLC, MILLBROOK APTS 4, LLC,
MILLBROOK APTS 7, LLC, and MILLBROOK
APTS, LLC,
Defendants-Appellees.
Before: GADOLA, P.J., and SWARTZLE and CAMERON, JJ.
PER CURIAM.
Plaintiff, Alvena Lloyd, appeals as of right the order of the trial court granting defendants,
the Millbrook Apartments, LLCs, summary disposition under MCR 2.116(C)(10). We affirm.
I. FACTS
In January 2019, plaintiff was a tenant living at Millbrook Apartments in Grand Rapids.
While walking to her car on the morning of January 15, 2019, plaintiff slipped and fell on the
sidewalk of the apartment complex, allegedly injuring her back. Plaintiff testified that she did not
see any snow or ice on the sidewalk, but she saw snow on the grass and felt ice on the sidewalk
after she fell. The apartment’s maintenance worker testified that on the morning of plaintiff’s fall,
he shoveled and salted the sidewalks and that they were not icy. The apartment’s property
manager, who responded to the scene of plaintiff’s fall, also stated that she had no difficulty
walking down the sidewalks that morning and that the sidewalks had been salted. The property
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manager took two photographs of the scene; one showed plaintiff lying on the ground, and one
showed salt on the sidewalk near the location of the fall.
Plaintiff initiated this lawsuit against defendants seeking damages for her injury and related
losses under MCL 554.139 and also under a theory of common law premises liability. Defendants
moved for summary disposition under MCR 2.116(C)(10), asserting that there was no genuine
issue as to any material fact and that they were entitled to judgment as a matter of law. The trial
court granted defendants’ motion, finding that there was no evidence that the sidewalk was not fit
for its intended purpose as required by the statute and that the alleged black ice was an open and
obvious condition, thus precluding common-law premises liability. Plaintiff now appeals.
II. ANALYSIS
Plaintiff contends that the trial court erred by holding that defendants are not subject to
liability under MCL 554.139 nor under a theory of premises liability. We disagree.
A. STANDARD OF REVIEW
We review de novo a trial court’s decision to grant or deny a motion for summary
disposition. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). A
motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a claim,
and is warranted when there is no genuine issue as to any material fact, and the moving party is
entitled to judgment as a matter of law. Id. at 160. When reviewing a motion for summary
disposition under MCR 2.116(C)(10), we consider the documentary evidence submitted by the
parties in the light most favorable to the nonmoving party. Id. A genuine issue of material fact
exists when the record leaves open an issue upon which reasonable minds might disagree. Johnson
v Vanderkooi, 502 Mich 751, 761; 918 NW2d 785 (2018). We also review de novo questions of
statutory interpretation, Vermilya v Delta College Bd of Trustees, 325 Mich App 416, 418; 925
NW2d 897 (2018), and the trial court’s determination whether a duty exists. Hill v Sears, Roebuck
& Co, 492 Mich 651, 659; 822 NW2d 190 (2012).
B. MCL 554.139
Plaintiff contends that defendants violated MCL 554.139(1)(a) because the sidewalk was
not fit for its intended use and violated MCL 554.139(1)(b) because the sidewalk was not in
reasonable repair. We disagree.
MCL 554.139(1) imposes a duty upon a lessor or a licensor of residential premises. “The
statutory protection under MCL 554.139(1) arises from the existence of a residential lease and
consequently becomes a statutorily mandated term of such lease.” Allison v AEW Capital Mgt,
LLP, 481 Mich 419, 425; 751 NW2d 8 (2008). MCL 554.139 provides, in relevant part:
(1) In every lease or license of residential premises, the lessor or licensor
covenants:
(a) That the premises and all common areas are fit for the use intended by
the parties.
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(b) To keep the premises in reasonable repair during the term of the lease or
license, and to comply with the applicable health and safety laws of the state and
of the local unit of government where the premises are located, except when the
disrepair or violation of the applicable health or safety laws has been caused by the
tenants wilful or irresponsible conduct or lack of conduct.
When determining whether liability exists under MCL 554.139(1)(a), we first ascertain
whether the area in question is a common area, and if so, the intended use of the common area.
Estate of Trueblood v P&G Apartments, LLC, 327 Mich App 275, 289; 933 NW2d 732 (2019).
We then determine if there exists “reasonable differences of opinion regarding whether the
conditions made the common area unfit for its intended use.” Id. (Quotation marks omitted).
Under MCL 554.139(1)(a), “common areas” are areas of a property shared by two or more tenants
over which a lessor retains control. Allison, 481 Mich at 427. Sidewalks within an apartment
complex are common areas and a landlord therefore has a duty under MCL 554.139(1)(a) to keep
the sidewalks fit for their intended use. Benton v Dart Props, 270 Mich App 437, 442-444; 715
NW2d 335 (2006). The intended use of the sidewalk in this case, simply put, was to walk on it.
See Estate of Trueblood, 327 Mich App at 290. The remaining question, then, is whether the
alleged presence of black ice on the sidewalk where plaintiff fell rendered the sidewalk unfit for
its intended use of being walked upon. See id.
In Allison, our Supreme Court scrutinized MCL 554.139(1)(a) in a case involving the
accumulation of snow and ice in an apartment parking lot. After concluding that the parking lot
was a common area, id. at 428, the Court explained that ice does not render a common area unfit
for its intended use if the ice creates a “mere inconvenience of access.” Id. at 430. Our Supreme
Court reasoned:
While a lessor may have some duty under MCL 554.139(1)(a) with regard
to the accumulation of snow and ice in a parking lot, it would be triggered only
under much more exigent circumstances than those obtaining in this case. The
statute does not require a lessor to maintain a lot in an ideal condition or in the most
accessible condition possible, but merely requires the lessor to maintain it in a
condition that renders it fit for use as a parking lot. Mere inconvenience of access,
or the need to remove snow and ice from parked cars, will not defeat the
characterization of a lot as being fit for its intended purposes. [Id. at 430.]
Thus, an accumulation of ice or snow must be more than a “mere inconvenience” before it renders
the sidewalk unfit for its intended use. Estate of Trueblood, 327 Mich App at 290. This Court has
held that a sidewalk completely covered with ice represents more than a mere inconvenience
because anyone walking on the sidewalk would be forced to walk on ice. Id. at 290-291. A
landlord has no duty to maintain a sidewalk in an “ideal condition,” however. See Allison, 481
Mich at 430.
In this case, plaintiff argues that on the day she fell, defendants did not keep the sidewalk
fit for its intended purpose because they failed to salt it, resulting in plaintiff falling on black ice.
The record supports the trial court’s finding that the sidewalk was a common area under MCL
554.139(1)(a), and that the intended use of the sidewalk was to walk on it to access other areas.
Defendants therefore had a duty to ensure that the sidewalk was fit for that intended purpose. See
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Estate of Trueblood, 327 Mich App at 290. Here, the evidence did not establish a genuine issue
of material fact regarding whether the sidewalk was fit for its intended purpose. The record
indicates that the sidewalk was not completely covered with ice, and in fact the photographs show
little or no accumulation of ice or snow in the area where plaintiff fell. See Estate of Trueblood,
327 Mich App at 290. Plaintiff testified that she was able to walk from the apartment exit down
one sidewalk before turning down another sidewalk and that she never saw any ice or snow on the
sidewalk before she fell. Defendants presented evidence that the sidewalk had been salted the
morning that plaintiff fell and a photograph shows salt on the sidewalk near the area of the fall.
Viewing the evidence in the light most favorable to plaintiff, the evidence indicates that the patch
of black ice upon which she slipped created only an inconvenience of access to the sidewalk but
did not render the sidewalk unfit for its intended purpose. See Allison, 481 Mich at 428.
Accordingly, the trial court did not err by granting defendants’ motion for summary disposition of
plaintiff’s claim that defendants violated MCL 554.139(1)(a).
Plaintiff also argues that defendants violated MCL 554.139(1)(b) by failing to keep the
sidewalk in reasonable repair. Again, we disagree. MCL 554.139(1)(b) imposes a duty upon the
lessor or licensor to keep the premises in reasonable repair. The term premises as used in that
statutory section does not include common areas, Allison, 481 Mich at 432, and does not apply to
keeping property free from snow and ice accumulation. Id. at 432 n 6. Therefore, the duty to
repair “premises” under MCL 554.139(1)(b) does not apply to the sidewalk in this case.
Accordingly, the trial court did not err by granting defendants summary disposition of plaintiff’s
claim that defendants violated MCL 554.139(1)(b).
C. PREMISES LIABILITY
Plaintiff also contends that the trial court erred by holding that the open and obvious
doctrine barred her premises liability claim against defendants. We disagree.
Michigan law distinguishes between a claim of ordinary negligence and a claim premised
on a condition of the land. Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 692; 822
NW2d 254 (2012). When, as in this case, a plaintiff alleges injuries arising from a dangerous
condition on the land, i.e., black ice on a sidewalk, the claim is one of premises liability rather than
ordinary negligence. See id. at 692. In a premises liability action, as in any negligence action, the
plaintiff must establish the elements of negligence, Goodwin v Northwest Michigan Fair Ass’n,
325 Mich App 129, 157; 923 NW2d 894 (2018), but liability arises from the defendant’s duty as
an owner, possessor, or occupier of land. Buhalis, 296 Mich App at 692. To establish a prima
facie case of negligence, a plaintiff must demonstrate that (1) the defendant owed a duty to the
plaintiff, (2) the defendant breached that duty, (3) the plaintiff suffered damages, and (4) the
defendant’s breach caused the damages. Composto v Albrecht, 328 Mich App 496, 499; 938
NW2d 755 (2019).
The duty a possessor of land owes to a person who enters upon the land depends upon
whether the visitor is classified as an invitee, a licensee, or a trespasser. Stitt v Holland Abundant
Life Fellowship, 462 Mich 591, 596-597; 614 NW2d 88 (2000). Here, the parties do not dispute
that plaintiff was an invitee. The possessor of land owes an invitee the duty to use reasonable care
to protect the invitee from an unreasonable risk of harm posed by a dangerous condition on the
premises. Estate of Livings v Sage’s Investment Group, LLC, ___ Mich ___, ___; ___ NW2d ___
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(2021) (Docket No. 159692); slip op at 5. The possessor of the premises breaches that duty of care
when he or she knows or should know of a dangerous condition on the premises of which the
invitee is unaware, and fails to fix, guard against, or warn the invitee of the defect. Lowrey v LMPS
& LMPJ, Inc, 500 Mich 1, 8; 890 NW2d 344 (2016).
A premises possessor is not an absolute insurer of the safety of an invitee, however; the
premises possessor’s duty does not extend to open and obvious dangers. Estate of Livings, ___
Mich at ___; slip op at 5; Jeffrey-Moise v Williamsburg Towne Houses Cooperative, Inc, ___ Mich
App ___, ___; ___ NW2d ___ (2021); slip op at 6. The open and obvious doctrine is based on the
strong public policy that people should take reasonable care for their own safety. Id., citing
Buhalis, 296 Mich App at 693-694. A premises possessor is thus not obligated to take
extraordinary measures to keep people safe from reasonably anticipated risks, and does not owe a
duty to protect from, or warn of, dangers that are open and obvious because “such dangers, by their
nature, apprise an invitee of the potential hazard, which the invitee may then take reasonable
measures to avoid.” Hoffner v Lanctoe, 492 Mich 450, 461; 821 NW2d 88 (2012).
Whether a dangerous condition is open and obvious “depends on whether it is reasonable
to expect that an average person with ordinary intelligence would have discovered it upon casual
inspection.” Id. The court does not consider whether a particular plaintiff should have realized
that the condition was dangerous, but rather whether an average person in that position would have
foreseen the danger. Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich App 710, 713; 737
NW2d 179 (2007). Although a question of fact may arise regarding the openness and obviousness
of a condition, see Estate of Livings, ___ Mich at ___; slip op at 5, the open and obvious doctrine
is not an exception to the duty owed by the premises possessor, but instead is an integral part of
that duty; thus, the application of the open and obvious doctrine is part of the question of duty that
is a question of law for the court to decide. Hoffner, 492 Mich at 476. With respect to ice, the
court considers “whether the ice was visible on casual inspection or whether there were other
indicia of a potentially hazardous condition that would impute knowledge.” Buhalis, 296 Mich
App at 694.
A narrow exception to the open and obvious doctrine exists when a “special aspect” of the
open and obvious condition makes the risk unreasonable, thereby obligating the premises
possessor to take reasonable steps to protect invitees from unreasonable risk of harm. Hoffner,
492 Mich at 461. A special aspect of an open and obvious condition is found if the danger is
effectively unavoidable, or if it is unreasonably dangerous. Estate of Livings, ___ Mich at ___;
slip op at 5. A condition that is common or avoidable is not considered uniquely dangerous.
Hoffner, 492 Mich at 463. Absent a special aspect, the duty of a premises owner or possessor does
not extend to open and obvious dangers. Estate of Trueblood, 327 Mich App at 285.
In this case, plaintiff alleges that she slipped and fell on black ice that was not visible to
her upon casual inspection. There were, however, significant indicia that imputed knowledge such
that it is reasonable to expect that an average person in plaintiff’s position would have foreseen
the danger, including plaintiff’s observation of snow on the grass, plaintiff’s substantial familiarity
over 45 years with Michigan winters and black ice, plaintiff’s testimony that she walked carefully
down the sidewalk that morning as a result of the icy conditions, and the apparent presence of salt
in the area near where plaintiff fell. Together, this evidence shows that an average person of
ordinary intelligence in plaintiff’s situation would have been alerted to the possibility of black ice
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and would have discovered it upon casual inspection. Because there is no genuine issue of material
fact regarding whether the black ice was open or obvious, the trial court did not err by granting
defendants summary disposition of plaintiff’s premises liability claim.
Affirmed.
/s/ Michael F. Gadola
/s/ Brock A. Swartzle
/s/ Thomas C. Cameron
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