Paul Rottarr v. Kruk Cards Inc ( 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
PAUL ROTTARR, UNPUBLISHED
December 22, 2022
Plaintiff-Appellant,
v No. 359135
Oakland Circuit Court
KRUK CARDS, INC., KRUK PROPERTIES, LLC, LC No. 2020-181060-NO
and OAKLAND KRUK PROPERTIES, LLC,
Defendants-Appellees.
Before: CAVANAGH, P.J., and K. F. KELLY and GARRETT, JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting summary disposition in defendants’ favor
under MCR 2.116(C)(10) in this slip and fall case. We affirm.
On May 4, 2017, at about 8:30 p.m., plaintiff fell in defendants’ apartment complex as he
was traversing down the stairway from his second-floor apartment. Plaintiff alleged that the
stairway was defective because the steps were worn which, combined with the poor lighting and a
loose railing, caused him to fall and sustain severe injuries. Plaintiff brought this lawsuit alleging
two claims: negligence for failure to maintain the property in reasonable repair causing a dangerous
condition, and breach of a landlord’s statutory duty under MCL 554.139 to keep common areas fit
for their intended use.
Subsequently, defendants moved for summary disposition under MCR 2.116(C)(10),
arguing that plaintiff’s negligence claim must be dismissed because: there was no proof that
plaintiff fell on that date or on the stairway; the claim was barred by the open and obvious doctrine;
and defendant had no notice of the allegedly dangerous condition. Further, defendants argued,
plaintiff’s statutory claim under MCL 554.139 must be dismissed because the stairway at issue
was fit for its intended purpose. Defendants explained that plaintiff’s apartment was accessible by
two outdoor stairways and he was moving into the apartment on the day he claimed he fell.
Plaintiff testified that there were 16-17 steps leading to his apartment and he had climbed up and
down them about twenty times that day while moving in. Plaintiff testified that at about 8:30 p.m.,
it was raining outside and he fell after his foot “hydroplaned” off a step near the bottom of the
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stairs. He got up, walked up the same stairs to lock his apartment, then walked back down the
stairs and left to go visit his friend. Plaintiff did not seek any medical treatment for about a month.
And he continued to live at the apartment for three years after this alleged fall without further
incident. Moreover, defendants’ property manager testified that he had not received any
complaints about the stairway before this alleged fall. Accordingly, defendants argued, plaintiff
could not prove negligence—i.e., that an unreasonably dangerous condition existed of which
defendants were aware—with regard to this open and obvious condition, and plaintiff could not
prove that the stairway was not fit for its intended use because he used them repeatedly both before
and after his alleged fall. In support of their motion, defendants attached exhibits which included
the transcripts of plaintiff’s deposition testimony, and the deposition testimony of the property
manager, Charles Sechler.
Plaintiff responded to defendants’ motion for summary disposition, arguing that there were
multiple defects in this common-area stairway, including the worn-out stair treads that were
missing nonskid strips, a loose railing, and poor lighting; thus, it was not fit for its intended use in
violation of defendants’ statutory duty under MCL 554.139. Further, this stairway was effectively
unavoidable as it was the means to access plaintiff’s second-floor unit, and thus, the open and
obvious doctrine was inapplicable with respect to plaintiff’s negligence claim. And defendants, at
minimum, had constructive notice of these dangerous problems. In support of his responsive brief,
plaintiff attached exhibits which included pictures of the stairway, the transcripts of plaintiff’s
deposition testimony, and the deposition testimony of the property manager, Charles Sechler.
Defendants filed a reply brief in support of their motion for summary disposition, arguing
that plaintiff failed to raise a genuine issue of material fact on the issue whether his negligence
claim was barred by the open and obvious doctrine. Further, plaintiff’s statutory claim must be
dismissed because it was not supported by relevant admissible evidence. Defendants argued that
plaintiff’s reliance on some photographs in support of his claims was misplaced because there was
no evidentiary foundation for their admission into evidence. Further, plaintiff testified in his
deposition that he “hydroplaned” on water that was on a step but it was raining that day and
defendants had no notice of alleged “water build-up” on the steps that day. Defendants’ property
manager, Charles Sechler, testified that he never had any complaints about this stairway or about
the lighting and his testimony is uncontested—defendants had no notice. Moreover, as plaintiff
testified, he used the stairway for years after this alleged fall without any problem. And to the
extent that plaintiff is claiming a special exception to the open and obvious doctrine should apply
under the circumstances of this case, such argument is without merit. Both plaintiff and Sechler
testified that there were two stairways to access the second floor and, in any case, there was no
substantial risk of death or severe injury from wet stairs on a rainy day. Finally, defendants argued,
the stairway was fit for its intended use as evidenced by the fact that it was used by plaintiff both
before and after he allegedly fell. In support of their reply, defendants attached as an exhibit a
calendar record showing the times of sunset and twilight end for May 2017.
Following oral arguments on defendants’ motion, the trial court issued a written opinion
and order granting defendants’ motion and dismissing this case. The court noted that plaintiff
slipped and fell on wet stairs as he was moving into his second-floor apartment. The court held
that plaintiff failed to “provide sufficient evidence to show that Defendants had actual or
constructive notice of any defect on the stairs or that the stairs were unreasonably dangerous or
unfit for their intended use.” This appeal followed.
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Plaintiff first argues that defendants breached their common-law duty to exercise
reasonable care to protect plaintiff from an unreasonable risk of harm caused by a dangerous
condition by failing to ensure adequate lighting in the area of the stairway. We disagree.
We review de novo a trial court’s decision on a motion for summary disposition. Lakeview
Commons v Empower Yourself, LLC, 290 Mich App 503, 506; 802 NW2d 712 (2010). A motion
brought under MCR 2.116(C)(10) tests the factual support of a claim and should be granted if,
after consideration of the evidence submitted by the parties in the light most favorable to the
nonmoving party, no genuine issue regarding any material fact exists. Id.It is undisputed that plaintiff was an invitee on the premises. “[A] tenant is an invitee of
the landlord.” Benton v Dart Props, Inc, 270 Mich App 437, 440; 715 NW2d 335 (2006).
Generally, “a premises possessor owes a duty to an invitee to exercise reasonable care to protect
the invitee from an unreasonable risk of harm caused by a dangerous condition on the land.” Lugo
v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). But invitors are not absolute
insurers of the safety of their invitees. Quinlivan v Great Atlantic & Pacific Tea Co, Inc, 395 Mich
244, 261; 235 NW2d 732 (1975). And a premises owner has no duty to protect an invitee from an
open and obvious danger unless there are special aspects of the condition that make it unreasonably
dangerous. Lugo, 464 Mich at 517. There are two recognized “special aspects” of an open and
obvious hazard that can give rise to liability: “when the danger is unreasonably dangerous or when
the danger is effectively unavoidable.” Hoffner v Lanctoe, 492 Mich 450, 463; 821 NW2d 88(2012). Further, an essential element of a premises liability claim is the defendant’s knowledge of
the alleged defect. Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 11-12; 890 NW2d 344 (2016). The
plaintiff must demonstrate either that the defendant knew about the dangerous condition or that
the defendant should have known of it because of its character or the duration of its existence. Id.
at 11.
In this case, plaintiff testified that two outdoor stairways led up to his apartment. He had
been going up and down the stairway at issue here—about twenty times—moving his things into
the apartment. It had been raining on and off all day. At about 8:30 p.m. or 9:00 p.m., when it
was dark and raining, he was going down the stairs and was near the bottom of the stairway when
he “stepped on a stair and hydroplaned off of the stair, landed down on the bottom of the stairs in
the ground.” Plaintiff was not sure precisely which step caused his fall because the lighting was
not very good. He laid on the ground for a bit and then got up, walked back up the stairs to close
his apartment, then walked back down the stairs, to his vehicle, and then drove eleven miles to his
friend’s house. Plaintiff had no other issues with the stairway over the next three years he lived
there. And defendant’s property manager, Charles Sechler, testified that there had been no
complaints about the stairway at issue prior to plaintiff’s fall.
Plaintiff has failed to establish that defendant had actual or constructive notice of the
purported defect of standing water on a stairway step. While on appeal plaintiff appears to claim
that it was inadequate lighting that caused his fall, he testified that his foot “hydroplaned” on a
step which caused him to slip and fall. He was unsure as to which step the hydroplaning occurred
because of the lighting. But, in any case, plaintiff has also failed to establish that defendant had
actual or constructive notice of a purported defect of inadequate lighting. In other words, plaintiff
failed to demonstrate that defendant knew about a dangerous condition or should have known of
it because of its character or the duration it had existed. See Lowrey, 500 Mich 11-12.
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Moreover, it was raining and had been raining off and on all day. The fact that there was
rain water on the outdoor stairway steps—that plaintiff had been traversing without incident
numerous times that same day—is not a “dangerous condition on the land” that poses an
unreasonable risk of harm. See Lugo, 464 Mich at 516. This condition is neither unusual nor
unforeseeable—considering that it was raining. Invitors are not absolute insurers of the safety of
their invitees. Quinlivan, 395 Mich at 261. And the condition of wet steps with puddles of water
on them posed an open and obvious risk since it had rained off and on all day. Any danger
associated with the allegedly dangerous wet steps was known, or should have been known, by
plaintiff. Further, there were no special aspects about the stairway that made this open and obvious
risk unreasonable and it was avoidable because there was another stairway that could have been
used. See Lugo, 464 Mich at 517; see also Hoffner, 492 Mich at 463. Accordingly, the trial court
properly granted defendants’ motion for summary disposition and dismissed plaintiff’s negligence
claim.
Next, plaintiff argues that defendants violated their statutory duty to maintain the premises
fit for its intended purpose by failing to ensure adequate lighting in the area of the stairway in the
common area. We disagree.
Defendants had a statutory duty to maintain the stairway in a condition fit for its intended
use under MCL 554.139(1)(a) which provides that, in every residential lease, the lessor covenants
that “the premises and all common areas are fit for the use intended by the parties.” In Allison v
AEW Capital Mgt, LLP, 481 Mich 419, 426-431; 751 NW2d 8 (2008), our Supreme Court set forth
questions to consider when addressing a claim under MCL 554.139(1)(a) as follows: (1) is the area
at issue a “common area,” (2) if so, what is the intended use of the common area, and (3) could
there be a reasonable difference of opinion regarding whether the condition made the common
area unfit for its intended use.
In this case, it is not disputed that the stairway at issue was a common area. And it is well
established that the “primary purpose or intended use of a stairway is to provide pedestrian access
to different levels of a building or structure.” Hadden v McDermitt Apartments, LLC, 287 Mich
App 124, 130; 782 NW2d 800 (2010). The issue disputed here pertains to the third element. On
appeal, plaintiff again references inadequate lighting. But plaintiff testified that he fell because he
“hydroplaned” on water located on a step. He did not know which step though, allegedly because
of inadequate lighting. However, it remains that plaintiff claimed to have fallen because of a
collection of water located on a step—not because of inadequate lighting. The record here shows
that plaintiff was able to go up and down the stairway numerous times despite the rainy conditions
and wet steps before he fell. Plaintiff also used the same stairway to return to his apartment after
the fall, and then to leave his apartment and walk to his vehicle without incident. Moreover, the
property manager testified that he had received no complaints from any tenants about this stairway
before plaintiff fell—despite it being a common area in use by other tenants. Defendants were not
required to maintain the stairway in perfect or ideal condition; rather, the stairway must only
provide reasonable access to different building levels. See Hadden, 287 Mich App at 130. And
we agree with the trial court that there could be no reasonable difference of opinion that this
stairway successfully served its “intended use.” Plaintiff failed to establish that a genuine issue of
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material fact existed on the issue. Accordingly, the trial court properly granted defendants’ motion
for summary disposition and dismissed plaintiff’s statutory claim.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
/s/ Kristina Robinson Garrett
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