Nicholas Secunda v. Richard Gregory ( 2019 )

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
NICHOLAS SECUNDA, UNPUBLISHED
February 21, 2019
Plaintiff-Appellant,
v No. 340067
Oakland Circuit Court
RICHARD GREGORY, LC No. 2016-153563-NO
Defendant-Appellee.
Before: SWARTZLE, P.J., and MARKEY and RONAYNE KRAUSE, JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting defendant’s motion for summary disposition
pursuant to MCR 2.116(C)(10) in this premises liability and statutory landlord liability action.
We affirm.
I. BACKGROUND
Plaintiff was injured when a window pane broke in the home plaintiff rented from
defendant. Plaintiff lifted the wood-framed window with the handle. He lifted the window three
to four inches and then the handle broke. Plaintiff then placed his hands under the window and
continued to raise it. As he pushed the window up, the glass broke, and some of the glass went
through his hand and cut his wrist. Plaintiff testified that the window frame “was not stuck per
se,” but it was hard to push. After the incident occurred, plaintiff saw chipped paint on the
exterior of the window. Because of this chipped paint, he concluded that the window frame had
been painted shut from the outside, causing the window to get stuck upon opening, and thereby
compromising the glass. Plaintiff testified that the interior of the window was not painted shut,
but rather, it was painted shut from the outside of the home. Additionally, plaintiff testified that
there was no paint around the interior of the window.
Defendant testified that he had never painted the outside of the house during the time that
he owned the premises. However, defendant testified that he always painted the interior of the
home between tenants, after which he cut along the edge with a razor blade to make sure that the
window opened properly. In addition, defendant testified that the window was functioning
properly before plaintiff moved into the home. Plaintiff testified that he had never used that
particular window before.
Plaintiff argues that the trial court erred in granting defendant’s motion for summary
disposition because there is a genuine issue of material fact as to whether defendant had actual or
constructive notice of the defective window, and there is a genuine issue of material fact as to
whether defendant breached his statutory duty to keep the rental property fit for its intended use
and in reasonable repair.
II. STANDARD OF REVIEW
A trial court’s decision on a motion for summary disposition is reviewed de novo.
Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 5-6; 890 NW2d 344 (2016). A motion for summary
disposition under MCR 2.116(C)(10) challenges the “factual adequacy of a complaint on the
basis of the entire record, including affidavits, depositions, admissions, or other documentary
evidence.” Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 115; 839 NW2d 223
(2013). A trial court’s grant of summary disposition under MCR 2.116(C)(10) is proper when
the evidence, “viewed in the light most favorable to the nonmoving party, show[s] that there is
no genuine issue as to any material fact and the moving party is therefore entitled to judgment as
a matter of law.” Lowrey, 500 Mich at 5. “A genuine issue of material fact exists when the
record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon
which reasonable minds might differ.” Gorman, 302 Mich App at 116 (quotation omitted).
III. PREMISES LIABILITY
In a premises liability claim, the duty owed by the landowner depends on whether the
person entering the land is categorized as an invitee, licensee, or a trespasser. James v Alberts,
464 Mich 12, 19-20; 626 NW2d 158 (2001). “A tenant is an invitee of the landlord.” Benton v
Dart Props, 270 Mich App 437, 440; 715 NW2d 335 (2006). Consequently, a landlord breaches
the duty of care to a tenant when the landlord “ ‘knows or should know of a dangerous condition
on the premises of which the [tenant] is unaware and fails to fix the defect, guard against the
defect, or warn the [tenant] of the defect.’ ” See Lowrey, 500 Mich at 8, quoting Hoffner v
Lanctoe, 492 Mich 450, 460; 821 NW2d 88 (2012). The landlord must actually know of the
dangerous condition, or the dangerous condition must be “of such a character or must have
existed a sufficient length of time that [the landowner] should have knowledge of it.” Lowrey,
500 Mich at 10 (citation omitted).
IV. KNOWLEDGE OF DEFECT
A defendant need not prove a lack of constructive notice in order to be entitled to
summary disposition. See Id. at 9-10. Rather, a “defendant could establish its entitlement to
summary disposition by demonstrating that plaintiff failed to present sufficient evidence of
notice.” Lowrey, 500 Mich at 10. In this case, plaintiff had to establish that defendant knew or
should have known of the defect because of its “character or the duration of its presence.”
Lowrey, 500 Mich at 11.
Plaintiff argues that defendant had actual notice of the defective condition of the window
because defendant personally painted the interior of the house, including the window. We are
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not persuaded that painting the interior of a window necessarily implies knowledge of the
exterior of the window. Defendant testified that he never painted the outside of the house during
the time that he owned the premises, and plaintiff offered no evidence that defendant did in fact
ever paint the exterior of the home. In addition, defendant testified that the window worked
properly before plaintiff moved into the residence. Furthermore, plaintiff never discussed any
problems regarding the window with defendant before the incident. Consequently, the evidence
indicates that defendant did not have actual knowledge of any allegedly defective condition of
the window, and plaintiff has not provided any contrary evidence sufficient to establish a
genuine question of material fact.
Plaintiff has also failed to establish that defendant had constructive knowledge of the
defective window. In Lowrey, our Supreme Court found that the plaintiff, who had slipped on
the steps of the defendant’s diner, had failed to establish constructive notice to the defendant of
the hazard’s character or that it had existed long enough that the defendant should have had
knowledge of it. Lowrey, 500 Mich at 11-12. The plaintiff had not presented any evidence of
when the condition arose, nor did the plaintiff present any evidence of the character of the
condition. Id. at 12. The plaintiff only asserted that she believed the stairs must have been wet
because her pants were wet. Id. The Court found that the plaintiff’s assumption “does not
support any particular conclusion concerning the character of the condition.” Id.
Similarly, plaintiff here has only presented his assumption that the glass broke because it
had been compromised in some way as a result of the window frame’s being painted shut from
the outside. The only photograph that plaintiff provided of the window is a picture that shows
the broken handle on the inside of the window. There are no photographs of the chipped paint or
the condition of the exterior of the window frame. We will nevertheless give plaintiff the benefit
of the doubt that there exists a genuine question of fact whether the window actually was painted
shut. However, as in Lowrey, plaintiff has not presented any evidence from which a trier of fact
could infer that defendant should have known the window was defective.
Finally, plaintiff has failed to present evidence that the defect had occurred over a
sufficient length of time to impute constructive knowledge to defendant. Plaintiff argues that
defendant did not inspect the property since purchasing it in 1995, and if defendant had
conducted an inspection, defendant would have noticed that the window was painted shut.
However, presuming plaintiff has established that the window was painted shut, we note that
plaintiff did not present affirmative evidence that defendant had not inspected the premises since
1995. Plaintiff testified only that he did not know the last time defendant inspected or fixed the
window. Therefore, plaintiff did not provide any evidence contradicting defendant’s testimony
that the window was in working order before plaintiff moved in. The trial court correctly found
no question of material fact whether the window had been painted shut on the outside and
therefore whether the window was defective in the manner plaintiff argues.
V. STATUTORY LANDLORD LIABILITY
Plaintiff also argues that defendant breached his statutory duties under MCL 554.139
because the window was not fit for its intended use, and the window was not kept in reasonable
repair. MCL 554.139(1)(a) provides that the lessor covenants that “the premises and all common
area are fit for the use intended by the parties.” MCL 554.139(1)(b) provides that the lessor
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covenants “to keep the premises in reasonable repair.” A lessor is statutorily liable if the “lessor
knew or should have known of the existence of the defects.” Evans v Van Kleek, 110 Mich App
798, 803; 314 NW2d 486 (1981). As noted earlier, there is no evidence that defendant knew of
the defective window. Defendant received no complaints from plaintiff regarding the window
before the incident. In addition, defendant testified that the window was functioning properly
before plaintiff moving into the home. Plaintiff has not established a genuine question of fact
whether defendant knew or should have known of the alleged defect in the window.
VI. REASONABLE REPAIR
Finally, there is no evidence to establish a genuine issue of material fact whether the
premises were fit for their intended use or kept in reasonable repair. In Allison v AEW Capital
Management, LLP, 481 Mich 419, 429; 751 NW2d 8 (2008), our Supreme Court considered
whether a parking lot was fit for its intended purpose after the plaintiff slipped due to one or two
inches of snow. Our Supreme Court stated that MCL 544.139(1)(a) “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.”
Allison, 481 Mich at 430. “Mere inconvenience of access . . . will not defeat the characterization
of a lot as being fit for its intended purpose.” Id. Plaintiff argues that a window that is painted
shut is not fit for its intended use because it cannot be opened or closed; however, plaintiff did
not testify that the window was impossible to open or close. In fact, the window opened several
inches, and plaintiff characterized it as difficult to open rather than stuck closed. The handle
broke after plaintiff opened the window a few inches. After the handle broke, plaintiff attempted
to open the window further without the benefit of the handle. Then the glass broke. The window
was presumably not in “ideal condition,” but plaintiff has not established that it was unfit for its
intended use.
Regarding a landlord’s duty to keep a premises in reasonable repair, the Court in Allison
explained that “[t]he plain meaning of ‘reasonable repair’ as used in MCL 554.139(1)(b) requires
repair of a defect in the premises.” Allison, 481 Mich at 434 (citation omitted). The Court
further stated, “[d]amage to the property would constitute an imperfection in the property that
would require mending. Therefore, repairing a defect equates to keeping the premises in a good
condition as a result of restoring and mending damage to the property.” Id. Defendant repaired
the defect within two days of learning of the incident. Plaintiff has provided no evidence that
defendant had prior actual or constructive knowledge that the window was stuck or defective in
any way, and thus, he did not have a duty to repair the window before learning of the defect.
VII. CONCLUSION
There is no genuine question of material fact regarding plaintiff’s premises liability claim
or plaintiff’s statutory liability claim.
Affirmed. Defendant, being the prevailing party, may tax costs. MCR 7.219(A).
/s/ Brock A. Swartzle
/s/ Jane E. Markey
/s/ Amy Ronayne Krause
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